Page 2424 - Week 08 - Wednesday, 29 June 2005

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of where the government is up to in relation to this in a moment, but this is the appropriate way of dealing with the inadequacy within the current law which is acknowledged by Mr Pratt, and indeed acknowledged by the government, without revisiting reproduction debates or creating a new legal personality in the unborn, a personality that is not recognised, has never been recognised and should not be recognised by the law.

The approach is also consistent with the Human Rights Act, which explicitly states in section 9 (2) that the right to life applies from the time of birth. Introducing a separate legal personality creates the potential for a conflict of rights between a mother and her foetus. It also creates the potential for the mother’s rights to privacy and freedom of thought, conscience and religion to be restricted against her will.

As I have previously advised the Assembly, work has commenced on the development of chapter 5 of the Criminal Code, which deals with fatal, non-fatal and sexual offences against the person. A considerable amount of work has been undertaken and continues to progress on its development. At this stage I expect to introduce chapter 5 in October or November. Chapter 5 will include considered provisions on the aggravation of offences relating to the loss of a mother’s pregnancy, serious harm to the pregnancy, or death or serious harm to the subsequent child. It is critical that changes to the criminal law are progressed in an appropriate and considered manner. It is also critical that this important issue is considered in the context of the development of offences contained in chapter 5 of the Criminal Code.

In relation to that I am happy to give some further indication of the work that has been done and the approach the government will be adopting and which I will be tabling, as I said, in a few months time. However, I accept that this bill that Mr Pratt has tabled may be characterised as reflecting a community desire that offenders be appropriately punished for malicious acts that result in a woman losing her pregnancy. I have no argument with that but, as I have advised and stated just previously, the policy aim inherent in the bill can be achieved without creating a new platform for the community to debate spiritual and ideological issues concerning the meaning of an embryo or foetus.

Rather than trying to create an offence that divides mother and foetus, an approach that references the offence against the mother is the one the government will pursue. I announced this during the 2002 debate and I have previously announced it in this place. We will introduce into the Criminal Code those aggravated offences that I have just referred to. Where a factor of aggravation applies to an offence the maximum penalty for that offence will be increased. I am advised that the penalty for aggravated offences at this stage will be somewhere in the range of 25 to 30 per cent above the ordinary penalty. We propose to create those “aggravated features of pregnancy” for a number of offences, including dangerous conduct causing death; intentionally, recklessly or negligently causing serious harm; and intentionally or recklessly causing harm.

The aggravated offence provisions, and therefore the increased maximum penalty, will apply regardless of what the defendant knew or did not know about the pregnancy. To balance this, section 342 of the Crimes Act, which lists matters the court must take into account in determining the sentence to impose for an offence, will be amended in this context to include regard to the harm caused to the pregnancy, including the loss of the pregnancy and/or the harm caused to the subsequent child, including death; whether the

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