CRIMINAL LAW CONSOLIDATION (OFFENCES AGAINST UNBORN CHILD) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 20 February 2013.)

The Hon. K.J. MAHER (00:11): I will be extraordinarily brief. The government does not support this bill.

The Hon. S.G. WADE (00:12): The Hon. Robert Brokenshire tabled the Criminal Law Consolidation (Offences Against Unborn Child) Amendment Bill in the Legislative Council on 20 February 2013. I advise that this bill is a conscience vote for the Liberal Party.

The bill seeks to insert new criminal offences where a person causes serious harm to a pregnant woman which causes death or serious harm to an unborn child even where no intent to cause harm to the unborn child can be proven. The South Australian case that highlights the issue is that of Ms Lisa Smith, who was killed when her intoxicated fiancé crashed their vehicle while reportedly driving her to hospital to deal with emergency pregnancy complications, causing the death of their unborn child. Queensland has legislated to strengthen the law in this area, and last week the New South Wales Legislative Assembly passed a bill.

In my view there would be merit in the Criminal Law Consolidation Act being reviewed in relation to harm to unborn children; however, I am concerned that the bill before us has not been subject to adequate community consultation. While I am informed that the New South Wales bill was opposed by the Australian Medical Association, the Bar Association and the Royal Australian and New Zealand College of Obstetricians and Gynaecologists, I am not aware of any South Australian professional bodies commenting on the specific bill before us. Accordingly, while I will support the second reading I will not support the bill progressing further in this parliament.

Critics of the Brokenshire bill claim that the bill risks undermining the rights of pregnant mothers to control their own bodies. I indicate that my support for this bill is to support the rights of unborn children: I do not support the winding back of the rights of women.

The Hon. T.A. FRANKS (00:14): I rise to strongly oppose this offences against the unborn child bill, because it may well lead to reform that further reduces women's access to safe and legal abortions, and because the current law acknowledges the crimes appropriately. There is no need for this particular bill before us.

Indeed, this bill creates a new crime of conduct that causes serious harm or destruction of an unborn child and extends the existing dangerous driving offences to specifically, in this case, create offences of up to 20 years' imprisonment for serious harm to an unborn child or up to life imprisonment in the case of the death of an unborn child. An 'unborn child' is not defined in this bill. An 'unborn child' is not defined in the act. We have no definition in this bill of the situations it will cover.

In that case, I ask, as I have done by email, for the mover of this bill to define whether or not an unborn child includes a zygote, whether or not an unborn child includes a foetus, whether or not an unborn child includes an embryo; and, going back to the foetus, I ask: if it does include a foetus, and it does commence in that stage, does that foetus sit on a parity with the definition of stillbirth in terms of a foetus who has reached 20 weeks of gestation or 400 grams of body mass? We do not have a definition of 'unborn child', yet here we have a new criminal offence of causing serious harm or death to an unborn child. I think that is a nonsense.

I think that this bill has been put before us with very short notice. Certainly the email last week was the first time that it was drawn to the attention of this council that we would be voting on this bill, and when the second reading speech was made in February this year, it was pledged that members would receive a more extensive briefing which would outline the legal ramifications of this bill. I have yet to receive that briefing. On Friday, I asked the mover of this bill for that briefing and I am yet to receive that.

I certainly sought advice from the Law Society as to their opinion on this bill. I was informed that the mover had not sought the Law Society's advice on this bill. I think that is an incredibly bad process for such an important bill and for a bill that focuses on the incredibly devastating and sad situation of a particular woman whose life was lost, and that woman was pregnant. I think that she deserves better than a bill rushed before this parliament, and a bill that clearly, from the email communication of the mover of this bill, has been tied to what is called Zoe's Law (2) in New South Wales. That has been an incredibly controversial bill in that place, and it has many similarities to this bill, although I note that at least they define that it is a foetus at 20 weeks of gestation and, according to the current accepted nationwide definition of 'stillbirth' it would be applied in that particular situation.

I acknowledge that the mover has indicated to me that this crime would not be able to be applied to the woman who was pregnant; however, I note that in my discussions and correspondence with parliamentary counsel that they say that that would be a matter of interpretation. Again I say, we have no Law Society advice on this bill. We have a rushed process where we were given less than a week's notice that we were going to be debating it, and we have scant information as to the possible massive implications should we accept it tonight.

The Greens will be strongly opposing this bill. We believe that it is a salvo in a move to erode women's reproductive rights. I am sure I am not alone in having received many emails in support of this bill in the last 24 hours, and I note one particular writer who urges me to support the criminal law consolidation amendment bill that is being brought to a vote in the South Australian parliament today. I will not disclose the writer of this email but I am happy for members to see that it is a legitimate email. She goes on to say:

I believe that under no circumstance should any person harm or cause the death of an unborn child. If a couple does not want a child, there are plenty of ways and means to prevent that from happening.

...the emotional trauma (or survived victim) is not worth it.

I (22 yrs) am severely affected by, Morquio (which was detected at pregnancy) and I am very grateful that mum was pro life and didn't seek to abort me. If I can love life to such a degree; every child should be given this opportunity.

A further email to me states:

It is my understanding that the Police count a killed unborn child in their road fatality statistics.

These two emails indicate to me that these people have been misinformed about what this bill does. That raises grave concerns.

However, this council cannot possibly know what this bill does because this council does not have a definition of an unborn child within the bill or indeed within the act, it certainly does not have Law Society advice and it certainly does not have the briefing paper that was promised by the mover in his second reading speech.

I note that the mover, in informing us that he was going to bring this bill to a vote, did equate it with Zoe's law 2 in New South Wales. I say to the mover and to other members of this council that Zoe's law 2 is opposed by the Australian Medical Association of New South Wales, the Royal Australian and New Zealand College of Obstetricians and Gynaecologists, the medical insurer MDA National, the New South Wales Bar Association, the Women's Electoral Lobby, Family Planning New South Wales, the Women's Legal Service, the Australian Women Against Violence Alliance, the Women's Abortion Action Centre, the National Foundation for Australian Women, the Equality Rights Alliance, Rape and Domestic Violence Services Australia, and Pregnancy Help Australia.

The mover, the Hon. Robert Brokenshire, interjects that it still got through. Yes, it did still get through the lower house of New South Wales but that does not justify your bill getting through tonight, particularly with such an amorphous definition, a lacking definition of what an unborn child is. It is a bill that should not have been put up without Law Society advice. It is a bill that should have been put up with much more notice than you have given us tonight. It is a bill that I believe absolutely proves the adage that hard cases make bad laws. In this case I think that this bad law, if passed by this parliament, would make hard cases that would open a whole legal minefield. With that, we strongly oppose the bill.

The Hon. R.I. LUCAS (00:22): Can I indicate firstly that this issue of the vote at the second reading is actually a conscience vote for members of the Liberal Party. It would appear from the speeches of the Labor members and Greens members that it is not being treated as a conscience vote by them. I think they have indicated that the Labor government opposes it and the Greens oppose it, according to their recent speeches. I think that is disappointing. I think this is an issue that should be treated as a conscience vote issue. I am pleased that Liberal members will have that opportunity in the chamber on this particular issue.

Members interjecting:

The Hon. R.I. LUCAS: There are good conversations going on here. I was just making the point that it was a conscience vote for members and Liberal Party. In relation to the second reading I am pleased to see that. I must admit—and the honourable member can speak for himself—that I thought, in relation to this, that we had been asked to vote on this two weeks ago. I might be wrong–there were so many bills going around.

The Hon. T.A. Franks: That was stillbirth. That was a whole different thing.

The Hon. R.I. LUCAS: Alright; as I said, I stand corrected. There were so many references in relation to bills and votes that I cannot recall. Certainly from my viewpoint, I am prepared to support the second reading to allow further debate. I accept the argument of the Hon. Tammy Franks that if the bill was to be supported there would need to be much clarification in relation to the committee stages.

My understanding is that the Hon. Mr Brokenshire, should the bill pass the second reading, is prepared to concede that, and we will not be proceeding beyond clause 1 of the committee, or the second reading of the debate, if it gets through the second reading. So, I am certainly prepared to allow the debate to continue. I think it is an important enough issue to be debated. I do not accept some of the scaremongering that I have received by way of email correspondence already.

Whilst the Hon. Tammy Franks said bad cases make bad laws, and I accept that argument, I think sometimes bad emails do not necessarily damn the particular argument. You can get bad emails on both sides. Just because somebody stuffs up the interpretation of a piece of legislation does not mean that that is what was intended by the mover or was, indeed, being pushed by the mover. Sometimes it might be, but some of the scaremongering that I have had by way of an organised email campaign in the last 24 hours is equally misleading, in my view, in relation to both the intention and the impact of the legislation, but anyway put that to the side.

I have not followed the New South Wales debate super closely, but my colleagues inform me that the legislation passed overwhelmingly in the lower house. It was either 60 to 20 or 80 to 20, or something. So, this was not something that squeaked through by a one vote majority. I am assuming that significant numbers of Labor and Liberal members must have, eventually, supported—

The Hon. J.S.L. Dawkins interjecting:

The Hon. R.I. LUCAS: I know there aren't many, but there must have been some.

The PRESIDENT: No, there are not. There are not that many Labor members. No, there were not.

The Hon. R.I. LUCAS: None at all?

The PRESIDENT: I do not think so. I think we are about 20 in the lower house in New South Wales.

The Hon. R.I. LUCAS: I stand corrected then. If there were no Labor members—

The PRESIDENT: I could be wrong.

The Hon. R.I. LUCAS: The President says he might be wrong and I will indicate that I might be wrong. I do not know. All I know is the numbers are there and it was obviously a very significant majority on what the Hon. Tammy Franks has rightly identified as a controversial issue. Generally, controversial issues do not have overwhelming majorities one way or the other, they are generally much closer votes.

The Hon. T.A. Franks interjecting:

The Hon. R.I. LUCAS: Well, I accept, but I think the Hon. Tammy Franks will have to accept that the law has passed the lower house in New South Wales by a comprehensive majority. The point I am making is that with controversial issues it is very rare for them to be so comprehensively supported. I do not think that all New South Wales lower house members are idiots and have been deluded by rampant Family First equivalents in New South Wales, or Christian Democrats, or whatever they are in New South Wales.

Clearly, a significant number of well educated, well intentioned members of parliament voted in a particular way. That does not dictate the way we should vote. I accept that. All I am saying is that at the second reading I am prepared to, at least, have the debate. In indicating my willingness to support the second reading I indicate that I reserve my position for the committee stages and the third reading. I do not indicate that I will necessarily support the legislation should it ever get to that particular stage.

The Hon. K.L. VINCENT (00:28): I will speak as briefly as I can tonight. It has already been a long day of sitting. Probably I have done more sitting than most of you—that is a pun I will never get sick of making. I would like to start off by saying, as many members have, that this is a conscience issue for the Dignity for Disability Party. Having stated that, I will now try to be as cohesive as I can, given the hour, in telling you what is on my conscience.

I would like to note that my office has received about 50 emails on this topic in the past 48 hours or so, and at last count just over half of the senders of those emails were against the passing of this particular bill. There was also a snap protest on this issue organised by the South Australian Feminist Collective out the front of Parliament House today, as I am sure members are aware, rallying against the bill. I attended and spoke on issues relating to this bill, along with fellow MPs the Hon. Mr Hunter and the Hon. Tammy Franks.

I appreciate that this is a very emotional topic for many people if not all, and I appreciate that each person will respond differently to the death of a foetus or a baby that is in utero as a consequence of a car accident, a fall, a bike accident, an assault, an illness or any other reason. I also appreciate that there will be a range of responses felt by the partner of the woman carrying the baby, family members and so on. I have absolute empathy for those people. However, I also have a deep belief in good law making and I hold particular concerns about this bill when it comes to good law making, especially for the reason that has already been mentioned that for a bill with 'unborn child' in its title there is no definition of an unborn child in the bill and I think that creates a concerning breadth and scope for this bill.

I do not believe that making foetal personhood laws will solve the differing human emotions and grief that can occur when a baby is lost as a result of assault or intentional harm. Some of the emails to my office supporting this bill suggest that this bill could be one way of eliminating or at least reducing violence against women, presumably because if the perpetrator realises that they could be charged with the death of a foetus they will not assault the woman that they are planning to assault. I find this a little odd. I do not think that this argument recognises the often complex nature and issues surrounding domestic violence, in particular.

People who choose for any reason to perpetrate domestic violence can already be charged with assault and murder or having restraining orders against them, yet they still perpetrate these crimes, and I assure you I agree there remains far too much violence perpetrated against women as commentators such as Graeme Innes, Elizabeth Broderick and Natasha Stott Despoja as well as I all noted at and/or around White Ribbon Day on Monday through various media forums. However, I fail to see how the introduction of foetal personhood laws could change this. To improve the safety of women we need better education and support for women to report violence in relationships. I suppose what I am trying to say is that I believe the best way to protect a foetus is to protect the woman who is carrying it.

We need better support for women and their children and indeed all their family members to leave violent relationships. We need male leaders in sport, law, politics, music, the arts, religion, multicultural communities, medicine, health and every other sphere of life to be good role models and set high standards of behaviour and have no tolerance for violence against women. We need police to be adequately trained and resourced to manage domestic violence reports and respond to the needs of alleged victims accordingly.

We also need to understand that women with disabilities are far more likely, research would suggest, to face domestic violence than their non-disabled pregnant peers. Unfortunately there is no solid research I can find on the incidence of violence against pregnant women with disabilities but that is an area I am interested in investigating further.

We need to sort out how we treat the people we already have living, breathing and moving around the state before we worry about foetal personhood laws. We need to figure out how we are going to look after all the children in schools in this state we have failed to adequately protect from child abuse. We need to get protections in place so that people with disabilities that arguably make them vulnerable to abuse do not get exploited, assaulted and sexually assaulted while living in state funded facilities or anywhere else, I might add.

We need to figure out a way to prevent women with disabilities being twice as likely to experience violence and abuse as their non-disabled female peers. Whether a woman has a disability, a baby in utero, is black or white, employed or unemployed, rich or poor, they do not deserve to have violence perpetrated against them.

We need to focus on improving the safety of women. We need to enhance the rights of women. We need to do this not because a woman is carrying a foetus but because she is a living, breathing human being. Passing a law that makes foetuses of indeterminate growth into people is not the answer. Let's focus on the people and the humans we already have in our community because at the moment we are letting them down.

The Hon. J.S.L. DAWKINS (00:35): I will be brief. As has been mentioned by two of my colleagues, this is a conscience matter for members of the Liberal Party. It is my preference to support the second reading to continue the discussion on this matter. However, I would reserve my position if the bill got to a third reading.

The Hon. J.A. DARLEY (00:35): I will be even briefer. I, like other members, am concerned about the breadth and scope of this bill and the potential consequences if a bill of this nature is passed. However, I intend to support the second reading of the bill.

The Hon. R.L. BROKENSHIRE (00:36): I will try to be as brief as I can, given that it is 12.35 on Thursday morning. I thank all colleagues who have contributed to the debate. I have some important matters I want to put on the public record regarding the second reading of this bill which I have proudly put before the parliament. Those who have made submissions on this bill I want to thank, and I have still been getting submissions in support of it throughout today.

I acknowledge that it will be a conscience vote for all honourable members, as the Hon. Rob Lucas, the Hon. John Dawkins and others have said. I remind honourable members that a similar bill, known as Zoe's law, passed the lower house in New South Wales recently. I put on the public record, given that it has been brought up in the debate, what that was. In New South Wales, it was 63 votes to 26.

For the record, I advise that I understand that it is reported that nine Labor MPs in New South Wales were part of the 63 who actually supported the vote. I make clear that it was not none or zero Labor MPs, but actually nine who supported it. Further, I also put on the public record that those nine were out of a total of 20 remaining New South Wales ALP members. So, one-third, or thereabouts, of ALP members in the New South Wales parliament supported the bill.

This week we are campaigning, as my colleague the Hon. Kelly Vincent has said, against violence against women. Footballers, other sportspeople, celebrities, and politicians are all showing their support. I am a White Ribbon ambassador. This bill is about protecting some of our most vulnerable women, namely, pregnant women. The impetus for the bill is the tragic death here in South Australia of a young lady in January this year. I made the commitment to the family and public that I would move this bill back then. I did so within months, and I am now bringing it to a vote at the second reading.

The tragic and sad situation was that that young lady was killed in a car accident, where her partner was the driver, and he has now been sentenced. South Australia Police recorded two fatalities from the accident—the young lady and her unborn child. However, the court could only prosecute for one death—the young lady. There was no law to cover the loss of the unborn child. The Zoe's law campaign in New South Wales is named after the unborn child of a lady, a mother, who also died in a car accident, and that campaign is similar—

The Hon. T.A. Franks: No, she didn't die; she's still alive actually, and she opposed Zoe's law 1—get it right.

The Hon. R.L. BROKENSHIRE: And the campaign is similar from a legal perspective. However, the mother survived that accident.

The Hon. T.A. Franks: Brodie Donegan is still alive.

The Hon. R.L. BROKENSHIRE: She survived that accident. Brodie Donegan, who I was not going to name, did survive that accident. However, the unborn child in the accident did not survive. I note that Premier O'Farrell has said that if the bill did not criminalise the mother's actions against her own child, and did not affect the laws on abortion, he would let it go through. This bill covers both of those bases. Another lady survived her accident but lost her child in Western Australia. She, as the mother of that unborn child, has been pursuing justice there. In fact, the Western Australian Attorney-General recently wrote to me to confirm that reform on this issue remains on his government's agenda.

Let us turn to Queensland now. Queensland already has laws covering this issue and has done for some time, I am advised, as a result of a bill introduced by an Independent member of parliament there about 20 years ago. Now, let us look at Victoria. In Victoria this week, a man allegedly threatened to kill his unborn child, then punched his wife in the stomach and raped her twice but was freed on bail. The woman ultimately suffered a miscarriage. He has 12 charges, but one he is not charged with is causing the death of the child itself. He is charged with causing serious injury but not the taking of that child's life.

As an aside, but to illustrate what can happen, the Daily Mail in the United Kingdom reported in October that in Austria there was a case where two pregnant women miscarried after their jealous friend poisoned their drinks. She was sentenced to 18 months' gaol, with 14 months suspended. In other words, only four months of imprisonment.

Back home, a local story published in The Advertiser yesterday now—because we are still sitting into the next day—revealed that a man who psychologically tortured his former partner with SMS threats of rape, bodily harm and causing a miscarriage will be eligible for release in eight weeks for those threats, with his gaol term for that behaviour being just 12 months, backdated for time served in custody.

I accept that, in the case reported yesterday and in the Victorian case, those related to threats, but naturally the deterrent factor of the penalty that would apply if the person followed through on the threat to actually kill the unborn child is very important. I come towards the end of my summing up to the question of gestation, which has been raised on several occasions during the debate this morning.

We have not stated a gestation period in this bill and we are only going to the second reading today, as the Hon. Rob Lucas and others have indicated. Honourable members are today voting on the principle of this reform, and we will consider what has been said and what we are told outside the chamber about feelings on gestation. Zoe's law, the New South Wales legislation that I have just talked about, sits that at 20 weeks.

Naturally, as supporters of Jayden's law, we are not inclined to set that threshold, but that may be the will of the parliament. I advise the house that I intend to proceed with this further next term, where I will be committed to taking this bill through the committee stage to a third reading, but I acknowledge and thank all contributors again and advise that we will only take it to a second reading this morning.

In theory, as we are not voting on the clauses in committee, it would be a question of severity of the sentence towards the maximum penalty if, say, the woman herself did not know she was pregnant or had not told others she was pregnant. That is why we have maximum penalties: to allow room in sentencing for the range of situations.

However, we put the maximum penalty there for the worst cases, and the message through this type of reform is simple: a woman is not an appropriate subject of violence. No person or being is but, in the case of a woman, she may be pregnant and, in that instance, if you hurt or assault her then you may be at risk of two penalties. We need to protect pregnant women because they and their unborn child are unique in their vulnerability.

Lastly, I come to the rally of about 40 diehards convened on the steps of parliament today opposing this bill, saying it takes away abortion rights. I want to put on the public record in the strongest possible way that it does not. That is a nonsense. There are a great many women who are very supportive of the legislation that we are debating here tonight. Women who oppose this bill do not speak for all women—nor, of course, I acknowledge do women who support this bill. This is about more than women's rights. In fact, rightly or wrongly, I believe the majority of women want protection from violence and protection for their unborn child.

With those remarks, I invite honourable members to indicate their position in conscience on the principles of this bill, knowing they will not be drawn to vote in committee or on the third reading on the specifics of the bill as written today. I commend this bill to the house—as, indeed, it has been commended and passed in some other states of Australia.

The council divided on the second reading:

Majority of 1 for the noes.

Second reading thus negatived.