Page 265 - Week 01 - Thursday, 16 February 2006
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harm caused to a pregnancy may only be referenced against the mother. Therein lies the rub in terms of the fallacy of this Chief Minister’s law.
Let us look at this issue a little deeper. Take the given situation of a pregnant woman who, late in her pregnancy, is badly beaten by somebody who knows her to be pregnant. This is a description of events that have actually occurred. Injured, she is taken to hospital and goes into labour prematurely as a consequence of the assault. The woman does not die, but the birth is a stillbirth, apparently as a consequence of the assault. Under this law, manslaughter cannot be applied if a foetus dies as a consequence of an assault. At best, the penalty can only be a maximum of grievous bodily harm for the assault of the woman. Under Mr Stanhope’s law, a magistrate would be entitled to add about a 30 per cent penalty to the GBH maximum because of the stillbirth.
Mr Seselja: A 30 per cent loading.
MR PRATT: That is right, a loading. On the other hand, if the birth actually occurred and the new baby was born alive but died shortly after as a consequence of the assault I have detailed, GBH, then a charge of manslaughter may be applied under the Stanhope law.
Mr Seselja: What a stupid distinction.
MR PRATT: Stupid is right. That is, the offender is now saddled with the consequences of offences against two living entities. I do not mind that. I do not mind it if it is law which actually flies, but there are questions about that. It is illogical, however, that a charge of manslaughter could be applied for an act that took place before that child was pronounced a living entity under this government’s standard. Therefore, can this law work? The advice that we have is that there are very deep concerns about that and perhaps the offender’s case could easily be defended. It seems to me that this is a weakness in the government’s bill that can easily be defended by the perpetrator.
If injuries sustained prior to birth can be recognised as having affected the individual after it is born, that is in effect recognising retrospectively that the unborn child was an individual prior to birth when it originally sustained the injuries that led to its death. This point goes to the heart of the amendment that I will be tabling later. I will talk more about that later. That is why the opposition will be proposing as an amendment the incorporation of a proposed new section, section 42A, in the government’s bill, an amendment which I will seek to move a little later.
The amendment, if I can talk to it roughly now, basically recognises that, if a manslaughter charge can apply to a child after birth as a result of injuries sustained while in utero, so too should a manslaughter charge apply to the child killed prior to birth. This is not, as the government would have everyone believe, reopening the abortion debate. I say that to pre-empt the Chief Minister leaping to his feet and ideologically throwing it back in our face that we are simply reopening the abortion debate. That is a pretty poor defence, but that is what we are going to hear again and again, as we have over the last couple of years. The proposed amendment explicitly states that the proposed section does not apply to a lawful abortion or anything done by a pregnant woman in relation to her unborn child, et cetera. I will come back to that in some detail later, Mr Speaker.
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