Page 2712 - Week 09 - Wednesday, 26 September 2007
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In relation to the definition of wrongful birth, Mrs Dunne and Mr Mulcahy have gone into a lot of the legal background. I will not repeat a lot of that, but by way of context, where an act of medical negligence causes the birth of an unplanned child, the child may be disabled or non-disabled. In July 2003, the High Court of Australia held, by a 4-3 majority, that “where an unplanned child is born through medical negligence, the parents may sue the negligent doctor to recover the costs of raising the child to maturity”. Therefore, by the narrowest of majorities, the High Court allowed plaintiffs to claim for the damages associated with raising an unwanted healthy child. That is the law as it stands. That is not the law anymore as it stands in states which have acted quickly, whose legislatures have had the courage and the good sense to act quickly to close this loophole.
This legislation will simply restrict courts from awarding damages for the costs of raising a healthy child. It does not restrict people from suing for negligence. It does not restrict any other claims. It simply says, “We’re going to draw a line in the sand and we’re going to say that where there is negligence you can’t sue for the cost of raising a child.” It is a very simple proposition, and that is what the legislation does. It does not do any more than that. Mr Corbell has implied that it takes away the rights of Canberrans to sue for negligence. No; it simply says that we do not see children as damage and we do not see children as loss. We are drawing the line here on that important principle. Mr Corbell, either deliberately or otherwise, seeks to misrepresent what this legislation is about.
The principle at stake is clear. Human beings are not a commodity. They cannot be simply treated as an economic unit. For good or bad, they cannot be simply treated as an economic unit. We are going to draw the line in the sand. How do you quantify the cost of a child? Mr Speaker, you have to look at some of the complications that arise from the approach of the High Court—and this is the approach that the government is backing here by refusing to endorse this legislation.
Let us look at the issue of mitigation of damages. If you are suing for loss, if you are suing for a damage that has been caused to you, you need to try and mitigate that. This raises abhorrent, disgraceful scenarios whereby, in order to minimise the “damage”, does a couple have to adopt their child out? Should a couple be minimising the damage by spending less on their child? Don’t send them to the good school you were going to send them to; buy them cheaper clothes. These are absolutely outrageous scenarios that arise as a result of this principle.
These are the scenarios that this government are endorsing. Apart from the fallacious arguments from Mr Corbell in relation to what this does and does not do, they seem to be endorsing it because they are happy to just give this over to the courts. This is the role of a legislature. We stand up when the courts get it wrong. When the courts apply a strictly legalistic view of something, like in this case, the legislature needs to stand up. The legislature should be reflecting what the community wants. The legislature should actually be standing up on principle. This was a 4-3 majority of the High Court and, according to the Labor Party, we should just accept it, even if it is wrong. Even if it is abhorrent, even if it raises ridiculous, unwanted issues, some of which I have outlined, the Labor Party seems happy to adopt the approach because the courts have made a decision.
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