Crimes Amendment (Grievous Bodily Harm) Bill 2005
Reverend the Hon. Dr GORDON MOYES: This bill proposes an amendment to the Crimes Act 1900 to ensure that offences under that Act relating to the infliction of grievous bodily harm extend to the destruction by a person of the foetus of a pregnant woman. The bill purports to codify the decision by the Court of Criminal Appeal known as Regina v King, which was made in December 2003. The King decision recognises the close physical bond between a pregnant woman and her unborn child, so much so that any injury to the unborn child is equated to injuring the pregnant woman. In Committee I will move an amendment to change the term to “unborn child” or “unborn children”.
A poignant story was reported in the Daily Telegraph of Monday 21 March 2005. The story centred on the death of Susan Harris’s unborn son, a child who was named “Lars” by his parents. Lars was conceived after three years of persisting with IVF technology. In January, when Susan Harris was seven months pregnant, she lost her unborn son in a car crash while she and her family were driving home. Honourable members can imagine the trauma and grief felt by this mother to know that her precious baby, conceived after so much trouble through IVF technology, was lost just one month or so before it was due to come into the world. One cannot fathom the utter dismay and numbness felt by this family, especially the pain and distress experienced by Susan Harris. The article went on to say that Susan Harris’s unborn son will never be recognised as a living being. This was because the Government had not passed the law we are looking at today in time to protect Lars. Susan Harris is quoted in the article as having said:
But we have a birth certificate for our baby; we had a funeral for our baby. But my baby wasn’t considered a human being because he hadn’t taken a breath outside the womb.
Expectant mothers, carrying children that they have planned to come into this world, often find it difficult to articulate the joy and awe connected with carrying an unborn child. One can only imagine what is involved in preparing for the unborn child. For example, when they discover that they are pregnant, women are suddenly charged with the responsibility of caring for their pregnant bodies. A woman’s lifestyle changes completely, and from the very genesis of the development of the child, an intimate connection begins. The connection not only begins between the mother and child but also between the father and the child, and arguably all others close to the family nucleus. Also, those mothers who have tried for years to conceive should have their dreams protected. Mothers carrying an unborn child are carrying the seed of many dreams inside them. Contrary to what the previous speaker has said, this was not just a high-profile isolated case. At the same time a case was brought before the Parramatta Bail Court. The following report appeared in the Daily Telegraph of 21 March 2005:
A man who allegedly punched his 13-week pregnant girlfriend in the stomach and told her he wanted to kill the baby was granted bail yesterday.
Wade Raymond Hunter, of Whalan, appeared in Parramatta Bail Court charged with common assault and maliciously damaging property.
Police prosecutor Sergeant Kim McNaught said Hunter had punched his girlfriend, Sabrina Elingsworth, in the stomach after the two had an argument about child-care arrangements while attending a netball game …
According to a police statement, Hunter and his partner had an argument after he phoned his ex-girlfriend to discuss visiting arrangements with his children.
He told Ms Elingsworth, “I’m going to kill the baby” as he repeatedly hit her …
Hunter denied the allegations, but was granted conditional bail to appear at Penrith local Court. This is by no means an isolated case because until now the law has not protected the unborn child. At Common Law unborn children have no rights until birth. For example, in the 1979 United Kingdom case Paton v British Pregnancy Advisory Service President Sir George Baker held that “in England and Wales the foetus has no right of action, no right at all, until birth”. He also said:
… the foetus cannot in English law, in my view, have any right of its own until it is born and has a separate existence from its mother. That permeates the whole of the civil law of this country … and … [also] in America, Canada, Australia … This means that any “rights” ascribed to unborn children must be defined by the Legislature.
But, in recent years, two cases concerning the deaths of unborn children have catapulted this issue onto the legislative stage. These are the cases of Renee Shields and Kylie Flick. Kylie Flick’s unborn child died as a result of the father of her baby, Phillip King, punching and stamping on Ms Flick’s abdomen numerous times. Renee Shields lost her unborn child in a road-rage incident. The law as it stands in New South Wales today does not specifically cover instances where unborn children die as a result of violence all road-rage incidents. It is, of course, within the Parliament’s functions to legislate to protect vulnerable members of our community.
Parliament is charged with the function of legislating for the benefit of those who require help, and I sincerely believe that the interests of mothers in protecting their unborn children should be protected. The cases of Kylie Flick and Renee Shields and others prompted the Government to commission a review of the laws relating to manslaughter in New South Wales. The Hon. Mervyn Finlay, QC, former Supreme Court judge, undertook this delicate and sensitive task. One of the aims of the review was to include an examination of whether the Crimes Act provisions concerning manslaughter should be amended in such a way as to allow a charge of manslaughter to be brought in circumstances where an unborn child dies.
The Hon. Mervyn Finlay, QC, released his recommendations in April 2003. The former judge recommended that New South Wales legislate to introduce the offence of “child destruction” or “killing an unborn child” relating to a criminal act causing a child, capable of being born alive, to die before it has an existence independent of its mother. In other states of Australia—notably, South Australia, Queensland, Western Australia and the Northern Territory—the offence of “child destruction” or “killing an unborn child” has been statutorily entrenched. But, lamentably, the Government of New South Wales has not heeded Finlay’s recommendations, deciding to legislate in a way that effectively denies the importance of the unborn child as an individual. The Premier, Mr Carr, and the Attorney General, Mr Debus, promised to implement all the recommendations of Mr Finlay, QC. This they have not done. It is not at all obvious from the title of this bill that it, in fact, purports to deal with the loss of unborn children through such things as acts of violence. The form in which protection of the unborn child will take place in the proposed legislation reflects the notion that unborn children, the receptacle of many maternal dreams, do not deserve protection in their own right.
The Attorney General announced in his second reading speech that the Government’s legislation codifies the decision made by the court in the Kylie Flick case, Regina v Phillip King. In the case of the attack by Phillip King—a most brutal, vicious stomping on the woman’s abdomen—the Court of Criminal Appeal ruled that the close physical connection between mother and child means that the loss of a baby can constitute grievous bodily harm to the pregnant woman, even in the absence of other injury. Thus, the proposed legislation will expand the definition of grievous bodily harm in the Crimes Act to include harm to an unborn child.
King was subsequently sentenced to 12 years gaol with a non-parole period of eight years. Attorney General Bob Debus commented that the case of King has changed the political landscape in regard to the death of an unborn child resulting from a brutal attack on the mother. Mr Debus referred to Renee Shields’s submission to the review as “poignant and articulate”, and quoted from it in his address as follows:
Laws are man made and therefore can be changed with today’s day and age. Unborn children should be acknowledged in our society. An amendment to the current legislation might lessen the constant tension someone experiences with this kind of incident and maybe make the incomprehensible a little easier to handle.
I commend Mr Debus for that statement. The Attorney General also commented that the process of crafting an appropriate amendment has been an arduous one involving consultation with a wide variety of lay and expert interests. He further said:
The amendment is specifically aimed at criminal attacks upon women and enabling the courts to give due recognition to the pain and trauma experienced by women like Renee Shields and Kylie Flick, who lost their babies following senseless and brutal attacks. Hopefully, it will make the incomprehensible a little easier to handle.
In my opinion the Government had the opportunity to recognise the unborn child as an individual deserving of protection and care, and has wasted this opportunity. Renee Shields was right to point out that “laws are man made” and “can be changed with today’s day and age”. I do not believe that the manner in which the Government has legislated will make the incomprehensible a whole lot easier to handle. The effect of the legislation is that there is only one defence, one conviction and one penalty where the child is killed and the mother is seriously injured or killed.
The current law will protect only foetuses, that is, unborn children medically defined as older than eight weeks. But what about unborn children who are aged 55 days? Why should the law discriminate between protecting the unborn children of some mothers and not others? If the law is to protect the interests of mothers, why does it not protect embryos as well? It is a sad fact that the Government’s law will not protect unborn children less than eight weeks old. I have come across the story of a mother who was six weeks pregnant, lost her child. She said:
Becoming a mother meant so much to me, and each time the realisation set in that it just wasn’t time for my little one to come into the world I was devastated. It didn’t matter if a couple of days had passed or weeks had passed since the positive pregnancy test, it was still absolutely devastating for me. I wanted to hold my baby, I wanted to nurse him, cuddle him, love him, and he just wasn’t ready to be born … I can only pray that every mother that experiences the loss of a child will some day be given the opportunity to nurture her own infant.
I believe that the codification of King’s case will offer little consolation for those still grieving for the loss of their unborn children. This is an issue concerning abortion. I ask the Government, according to Australian Labor Party policy, to allow its members a conscience vote on the amendment I will move in Committee.