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Legislative Assembly for the ACT: 2002 Week 12 Hansard (13 November) . . Page.. 3490 ..

MR PRATT (continuing):

clearly a highly contentious area, and by leaving it deliberately open I am deferring to the judiciary to make a judgment on a case-by-case basis. However, if there is a strong view within the Assembly that there should be a clearer definition, I am willing to consider such a suggestion.

Mr Speaker, the role of the judiciary is an important component of this bill. They are the ones that ultimately must administer the laws that are passed by the Assembly. They are the ones to make certain determinations based on the guidelines provided by the Assembly.

Presently, in cases of violence or recklessness that involve pregnant women, the judiciary does take into account injuries to an unborn child. However, their ability to do this is limited to sentencing; and is limited by the maximum sentence accorded to the charge associated with the act against the mother. To make it clearer, if a man beats his wife and kills the unborn child he can only be sentenced to the maximum appropriated for the assault on his wife. While that may be sufficient in some cases, if the assault is so severe as to attract the maximum penalty then the discretion to appropriate a more severe sentence for the death of the unborn child is gone-there is no space for the judge to manoeuvre in order to make a further determination.

It is important that we look beyond the first breath of a child when deciding at what point we should be providing legal protection. Section 313 of the Queensland Criminal Code provides:

Any person who, when a female is about to be delivered of a child, prevents the child from being born alive by any act or omission of such a nature that, if the child had been born alive and then dies, the person would be deemed to have unlawfully killed the child, is guilty of a crime, and is liable to imprisonment for life.

The Queensland code also provides:

Any person who unlawfully assaults a female pregnant with a child and destroys the life of, or does grievous bodily harm to, or transmits a serious disease to, the child before its birth, commits a crime-maximum penalty, imprisonment for life.

This legislation provides different degrees of assault and separates the offences based on whether the perpetrator had prior knowledge that the woman was pregnant or whether the perpetrator has an intent to kill the unborn child. There are degrees of separation, where the judiciary may make determinations based on the severity of the cases, depending on the individual circumstances, on a case-by-case basis. In that sense, it is a better law than the Queensland example because it is not so encompassing as to be unworkable.

This is controversial legislation-sure it is-but it is necessary legislation. It is necessary that we send a message that we will provide protection for pregnant women and their unborn child. In that sense, Mr Speaker, it is an educative instrument.

The abortion debate dealt with women having a right to terminate their pregnancy. That has been agreed. This legislation says that women have an equal right to take their pregnancy to term and anyone who interferes with that in a violent or reckless way should be held accountable. I believe in that principle. I will work with members of the

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