Page 2725 - Week 09 - Wednesday, 26 September 2007
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wrong with him. He did not do anything wrong. He is pretty much, I suppose, like my own son, Connor. He is learning the joys of reading, and learning how to play cricket and soccer and all of those sorts of things. I suppose, because he probably lives in Queensland, that he is learning how to ride not a snowboard but a surfboard.
What happens to people like Jordan Melchior when they discover what has happened in their past and how their parents have reacted? This is partly, but not entirely, about the effect on the child. Just imagine the psychological effect of a mother totalling up the cost of every meal, every item of clothing, every school excursion, birthday party and music lesson that you have ever received and saying: “All these costs were imposed upon me. I should not have had to pay them, and I wish you were never born.” But it is more than that. Even if the child never finds out about the details of the case, even if friends and relatives never find out, imagine what it does to the relationship when the mother looks back and realises that she testified in public under oath that having this child ruined her life, destroyed her most important relationship and caused all manner of damages that could only be assuaged by money. Does anyone want to live in a society that sees relationships between mothers and children in these terms?
This is not the only objection. I also believe that such suits perpetuate an important lie about human nature. There are very few people in this society today, apart from radical environmentalists and a few philosophical fringe dwellers like Peter Singer, who think of human beings as animals or as some sort of object. People do not think like that. Certainly, no government which claims to have a concern about human rights would view children in this way. When we uphold judgements like this, it is even worse than considering a child as a commodity. They are regarded as an object of negative value, and literally worse than useless—not just damaged but a damage. This is a categorical mistake. People can suffer harm and they can cause harm, but they cannot be a harm. This piece of legislation says that in the ACT children are not a harm. They can have harm delivered to them or perpetrated on them but they are not a harm.
The ACT government’s response to this bill has been instructive, if unhelpful. Through real or feigned ignorance, the ACT’s Attorney-General has blurred important distinctions and raised some dubious ones. Firstly, he continues to ignore the difference between harm suffered by the child and the view of a child as a harm. He and his Chief Minister focus on the doctor, sweeping aside what happens to the patient, and they blur the distinction between civil and criminal law. Criminal law is about punishing wrongdoing but civil law is about compensating people for the harm that is done to them.
The law of torts is difficult but some of the basic principles are readily accessible, even to non-lawyers like the Attorney-General and me. In any tort of negligence, the essential element is the proof of the existence of a compensable damage. To put it another way, negligence requires proof of fault and harm. Deciding whether a plaintiff has suffered harm requires some comparison with their position before and after the negligence. In suing a doctor for negligence that results in the birth of an unplanned or unwanted baby, the parents can receive—listen to this, Mr Attorney—damages for pain and suffering and loss of income, as well as direct medical costs associated with the birth. The Liberal Party believe that this should continue to be the case. That is our
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