Page 2709 - Week 09 - Wednesday, 26 September 2007
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taken extensive legal advice on how to approach this matter, and that is the view that I reached last evening.
It is worth noting that the recent public response to this issue shows that many in the community in which we live share a sense of outrage that people and the law can consider the blessing of a child to be a financial burden that should be compensated. The High Court of Australia case that prompted this legislation, Cattanach v Melchior, departed from what had previously been the common law position which, as Chief Justice Gleeson stated in his dissenting ruling, “has always attached fundamental value to human life”. This fundamental value should be protected, and this is what my colleague’s bill seeks to do.
This position has been confirmed by cases in other parts of the world, notably by the House of Lords in McFarlane, where it was stated that it “is morally offensive to regard a normal, healthy baby as more trouble and expense than it is worth.” I cite these examples, which are reflected by similar positions in, for example, Canada and most state jurisdictions of the United States of America, not to demonstrate only a moral position but to show that Cattanach v Melchior, which was decided on a slim margin of 4-3, departed from existing law and established a new position. The impact of the High Court’s decision has been to reverse the previous law and allow parents to be compensated for the birth of a healthy child. This is not a position that reflects public sentiment or the moral position of our community.
As a result of the 4-3 judgement of the High Court of Australia, three state jurisdictions introduced and passed similar legislation to that being proposed by my colleague Vicki Dunne. The three jurisdictions—Queensland, South Australia and New South Wales—recognised that the law had changed after the High Court’s decision and legislated to prevent medical specialists being held liable for the cost of raising healthy children. This reflected, as one Queensland parliamentarian pointed out in debate, that “many people in the community—and this was the subject of significant debate at the time of the case—were saying that it is really strange that somebody can be awarded the costs of bringing up an otherwise healthy child”.
Whilst there were other considerations, including the need and desire in Queensland, South Australia and New South Wales to protect measures introduced to combat the cost of insurance premiums, the legislative intent to prevent people seeking financial compensation for the cost of raising healthy children was prominent. This intent is very much reflected in the moral position of the community, and this position should be reflected by the law.
As part of the balance that underpins the Australian political system, it is the role of the legislature to act as a check on the judiciary. The Assembly should not hesitate to correct a law or interpretation when it is in the public interest. This role of the legislature was acknowledged by Justice Kirby, who, despite being in the majority in that case I have cited, said in relation to the denial of a damages claim, “as such, denial is the business, if of anyone, of parliament not the courts”.
The need for this legislation goes beyond a dispute about the pure legal interpretation of tort law. It should not be possible for a court to determine that the value of a human life is outweighed by the financial cost. Although my time today is limited, I will
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