Page 2787 - Week 09 - Wednesday, 17 August 2005

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Wednesday, 17 August 2005

MR SPEAKER (Mr Berry) took the chair at 10.30 am and asked members to stand in silence and pray or reflect on their responsibilities to the people of the Australian Capital Territory.

Civil Law (Wrongs) Amendment Bill 2005

Mrs Dunne, pursuant to notice, presented the bill and its explanatory statement.

Title read by Clerk.

MRS DUNNE (Ginninderra) (10.32): I move:

That this bill be agreed to principle.

The aim of the Civil Law (Wrongs) Amendment Bill 2005 is to clarify the position of the law of negligence as it relates to so-called cases of wrongful birth. It would remove the potential under the current law of negligence to cause immense, long-term psychological damage to children. It would also assert and have entrenched in ACT law the inherent dignity of all children, no matter what the circumstances or personal preferences of their parents. Put another way, it would reassert parents’ moral responsibility to look after their own children. Not coincidentally, it would bring ACT legislation into line with the Labor governments of Queensland, New South Wales and South Australia.

In order to understand the details and rationale of the bill, it is necessary to first explain what exactly putative wrongful birth cases involve, and to provide some background to the issue in Australian courts. In plain language, the legal principles underpinning the concept of wrongful birth hold that the law will recognise and classify unwanted healthy children born as a result of medical negligence as a “loss” or “damage”. This could cover a negligently performed sterilisation procedure, a negligently performed abortion, a negligently performed medical procedure that would have resulted in a foetus being terminated but for the negligence or an act of innocent misrepresentation resulting in the unintended conception of a child or the birth of a child that would have been aborted but for the innocent misrepresentation.

In all cases, the concept of wrongful birth entails that the unwanted but healthy child, by his or her very existence, constitutes a damage or loss. This is a notion we reject completely. It must be remembered that in tort actions the mere fact that a respondent has acted negligently is not in and of itself sufficient to justify an award of damages. Damages can only flow if the respondent’s negligence has caused the plaintiff damage or loss. What this boils down to in the case of alleged wrongful birth is the simple question of whether a child who is born healthy but happens to be unwanted be considered as a loss or damage. That is the question—moral as well as legal—that members of the Legislative Assembly must answer one way or another.

The issue has come to a head in Australia as the result of the divided High Court decision in 2003 in Cattanach v Melchior. This was on appeal from a judgment in the Queensland courts. The facts of the case are, briefly, as follows: the plaintiff was a woman who had earlier been involved in a motor vehicle accident in which she received abdominal

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