Page 338 - Week 02 - Tuesday, 7 March 2006
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debate. There is no evidence of this occurring in the ACT, which is rather unfortunate. On a matter of conscience, I share Mr Pratt’s dismay with the government’s inability to seek clarification about when we, as an Assembly, should be recognising an unborn child as a life form, not some inanimate object.
MR STANHOPE (Ginninderra—Chief Minister, Attorney-General, Minister for the Environment and Minister for Arts, Heritage and Indigenous Affairs) (11.29), in reply: Mr Speaker, the primary objective of this bill is to afford special protection to pregnant women against wilful, reckless or negligent acts that would cause loss or harm to their pregnancies. This bill achieves its objective in a way that we can all embrace. Because the aggravated offences in the bill are referenced against the mother, they do not create a separate legal personality from the mother. They avoid the potential for a conflict of rights between the mother and her foetus and do not risk compromising her rights to privacy, freedom of thought, conscience and religion. The bill will also leave the current law with respect to abortions unaffected and thereby avoid the unnecessary angst and division in the community that reopening the debate on abortion would inevitably bring.
Mr Speaker, I welcome the feedback that I have received on this bill since it was introduced last year. I am grateful to the scrutiny of bills committee for its thorough and detailed analysis of the issues involved in determining whether the bill complies with the Human Rights Act. I also appreciate the efforts of the ACT branch of Civil Liberties Australia in putting forward its views on the bill. I believe that I am right in saying that this process of consultation has assisted us all in honing our focus on the salient issues confronting us in relation to the bill, particularly with respect to the absence of a fault element for the aggravating factors.
I am aware that there is some concern felt by some sections of the community in relation to the absence of the requirement to prove a fault element for the aggravated factors that go to proving the aggravated offences in the bill. I have been advised that this aspect of the bill was central to discussions with Dr Foskey, Mr Pratt and advisers in Mr Stefaniak’s office. Mr Speaker, it is good to be a member of an Assembly such as this and to see the struggles we all go through to get the balance right and not unduly interfere with the rights of the community we serve.
The government certainly takes the matter of human rights very seriously and was therefore greatly assisted by the observations that have been made on the bill, particularly by the scrutiny of bills committee, chaired by the shadow Attorney-General, and most particularly in relation to concerns expressed about the absence of a fault element for establishing the aggravating factors of the bill offences.
I would like to clarify that, contrary to some views that have been expressed, the bill offences as they currently stand do not dispense entirely with the requirement to prove a fault element. For example, in the case of aggravated culpable driving, the prosecution must still prove the fault element that applies for the simple offence of culpable driving before the aggravated offence can apply in any event; that is, it must prove the fault element of negligence or a fault element that is roughly equivalent to it, namely, driving in such a state of intoxication as to be incapable of having proper control of the vehicle. The level of negligence required in this context is gross negligence, which is often referred to as criminal negligence and which judges explain to juries as a high and reprehensible degree of negligence.
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