I speak in debate on the Crimes Amendment (Zoe's Law) Bill 2013 (No. 2). Like many other members in this place, I have spent a great deal of time reflecting on the contents of the bill and the events that led to its introduction. I take this opportunity to acknowledge Brodie Donegan and her partner, Nick, for bringing this issue to light.
They have been through what no parent should ever go through. Their child, Zoe, was taken away from them by a criminal act that deserved the strongest possible punishment. I place on the public record my deep sympathies to the Donegan family for their awful personal loss and thank them for their ongoing commitment to Zoe and her memory. I also acknowledge the steadfast resolve and absolute dedication of the member for The Entrance in fighting for the Donegan family and all his constituents. The member for The Entrance has gone to great lengths to stand up for his community, and the people of The Entrance should feel privileged to have such a dedicated representative in this place.
As I have mentioned, the traumatic experience of Brodie Donegan is one that no expectant mother should have to endure. When 32 weeks pregnant, Brodie was struck by a car whose driver was under the influence of drugs. Her daughter was delivered stillborn following an emergency caesarean. Subsequently, the driver was charged under section 52A (3) (c) of the Crimes Act for the injuries sustained by Ms Donegan. While she wished for separate charges to be laid against the driver for the death of Zoe, as Zoe was still in utero she was listed as part of Ms Donegan's injuries. I understand that Ms Donegan has suffered significant grief and pain. I am terribly saddened by her story. However, I strongly believe the current law adequately addresses and deals with criminal incidents involving the death of an unborn child.
The Crimes Amendment (Zoe's Law) Bill 2013 (No. 2) proposes to define a foetus at 20 weeks, or 400 grams, as an unborn child taken to be a separate, living person for the purpose of applicable offences. Accordingly, separate provisions can be brought for causing grievous bodily harm to an unborn child, including cases where the harm results in the destruction of the unborn child. At present, an assault resulting in the stillbirth or miscarriage of a foetus has been held to cause the infliction of grievous bodily harm to the pregnant woman. In R v King the Supreme Court found that for the purposes of the law of assault, and the element of grievous bodily harm, it is appropriate that the close and intimate physical connection between a mother and her foetus equates to the recognition of the foetus as part of the mother. This formulation was codified in New South Wales and "grievous bodily harm" is defined in the Crimes Act as including the destruction of the foetus of a pregnant woman, whether or not the woman suffers any other harm.
This protection of the rights of a foetus under our current legal framework is sufficient. Through the definition of grievous bodily harm, an offender is culpable for a range of offences under the Crimes Act, including: section 33, intent to cause grievous bodily harm; section 35, recklessly causing grievous bodily harm; and section 52A, dangerous driving occasioning bodily harm. These provisions provide a direct path to the punishment of an offender whose actions have resulted in the death of a foetus. These are serious crimes, and the corresponding penalties appropriately address the gravity of their consequences. Intentionally causing grievous bodily harm carries a penalty of up to 25 years imprisonment, and recklessly doing the same carries a maximum penalty of 14 years. Further, if the mother of the child is injured and the foetus is destroyed, both harms can be taken into consideration as aggravating factors, as outlined in section 21A (g) of the Crimes (Sentencing Procedure) Act.
A judge can take into consideration other injuries and the trauma and ramifications of the harm done to the woman when determining the sentence. The loss of a foetus is not left unpunished. Under the current legal arrangements, it cannot be said that any offenders are escaping appropriate punishment. The definition to distinguish between a foetus that is treated as being part of a woman and an unborn child being treated as a distinct, living person is arbitrary. No medical principle is applied to the definition. Why should a foetus of 19 weeks and six days be treated any differently from one that is 20 weeks? Why should a foetus weighing 399 grams be treated any differently from one weighing 400 grams? Each foetus in utero develops at a different rate; it is unjust and contrary to the rule of law to assign different levels of culpability in each circumstance. As a Catholic I believe life starts at conception. So this arbitrary definition of 20 weeks is completely out of step with my personal view and definition of when life begins. Further, as identified in the 2010 Campbell review, acknowledgement of the destruction of a foetus in this way could downgrade other harms—for example, the loss of reproductive capacity, which some may regard as equally traumatic. This example can be replicated across a number of different issues, adding further unnecessary uncertainty and ambiguity to an already complex area of law.
The proposed provisions are completely unnecessary in order to address this issue. Our current legal frameworks are sufficient. The New South Wales Bar Association, Campbell review, Community Legal Centres NSW, the Australian Medical Association and a host of other organisations recognise the adequacy of current laws and believe reforms are not needed. A number of unintended consequences and flow-on effects will affect other areas of the law—for example, it is important to note that malice is not required to prove manslaughter: I refer to the decision in Queen v Lavender(2005) 222 CLR 67. All that the amendment requires is either an unlawful and dangerous act carrying with it an appreciable risk of serious injury or criminal negligence with a high risk that death or grievous bodily harm will follow. Despite the efforts of the member for The Entrance, who introduced the bill, and the member for Cronulla, who has drafted a proposed amendment, unintended consequences are not confined just to abortions and medical procedures.
I ask the House to consider the following two examples. A loving husband is driving his pregnant wife to see her parents. He makes a mistake, but it is a negligent one—or he drinks just one standard drink too many—and crashes the car. His wife is fine but the foetus miscarries. The husband is then charged with manslaughter and goes to jail. Given the current drafting of the amendment, the woman might not go to jail if she were driving under the same circumstances. Another example is of a woman on holiday who decides to go riding on a dune buggy, take a roller-coaster ride or do some whitewater rafting and is not told of the possible risks to her foetus—they are appreciable risks but not understood by the tour guide or operator. The person responsible may go to jail for manslaughter. I believe the proposal opens the door to a range of unintended consequences that the amendment does not address adequately. In my view, Zoe's law does not add anything to the current law dealing with the death of a foetus in utero. There is no requirement to ensure that those culpable for such harm face prosecution and punishment. As such, I cannot support it.
