Legislative Council: Wednesday, November 30, 2022



Statutes Amendment (Loss of Fetus) Bill

Introduction and First Reading

The Hon. S.L. GAME (12:05): Obtained leave and introduced a bill for an act to amend the Criminal Law Consolidation Act 1935, the Sentencing Act 2017 and the Victims of Crime Act 2001. Read a first time.

Second Reading

The Hon. S.L. GAME (12:06): I move:

That this bill be now read a second time.

It is a privilege to introduce this important bill to the chamber. The Statutes Amendment (Loss of Fetus) Bill 2022 is about justice for those who suffer the loss of an in-utero baby and about recognition of the grief and death that has resulted—a death not through choice or illness or disease but through malice, recklessness or the negligence of others.

I want to note that it is an important and appropriate day to raise this bill, as it relates to the previous bill raised by the Attorney-General this morning. Many instances of fetal loss by a criminal act have occurred through traffic collisions, and it is important to recognise all life lost through such acts.

Let me be clear: this bill does not impact a woman's right to choose an abortion. What this bill does is acknowledge the death of a baby when that baby, while still in utero, dies as a result of a prescribed criminal offence as outlined in the Criminal Law Consolidation Act 1935. Those offences include crimes such as rape, criminal neglect and causing death by dangerous driving. At present, the loss of an in-utero baby due to a criminal act is legally recognised only as an injury to the mother. There is no validation for the profound loss and grief for the mother, father and extended family and friends. A dead baby becomes part of an itemised list of injuries recorded.

New South Wales already has similar legislation in place, passed last year with bipartisan support. The 2021 New South Wales legislation known as Zoe's Law finally passed both houses of parliament after 12 years of campaigning. I would like to record my respect for the Donegan family and their fellow advocates who saw such a personally important piece of legislation repeatedly raised and shut down for over a decade.

I recommend that everyone in this chamber familiarise themselves with Brodie Donegan's story and the loss of her baby daughter Zoe. Zoe passed away in utero after a collision caused by a drug-affected driver. Brodie was walking in her neighbourhood before she was struck by an out-of-control van and pinned against a tree.

Let us acknowledge that this sudden and traumatic loss could happen to any pregnant woman and her family. Earlier this year, charges were dropped against a South Australian man accused of kicking his pregnant wife in the stomach with steelcap boots. It was alleged he did so with intent to kill her unborn baby, according to court documents. He was also accused of administering poison upon another person in order to procure a miscarriage and was charged with causing harm and two counts of aggravated assault. Would these charges have been dropped if this bill had been enacted?

As stated earlier, this bill is based on enacted interstate legislation which received bipartisan support. A key difference is that the New South Wales legislation recognises fetuses over 20 weeks of gestation or weighing over 400 grams. The legislation presented today encompasses all fetuses of any gestation period or weight, and this is an important decision I reached after careful legal consultations.

Where do we draw the line? Is a 19-week-old in-utero baby of less significance to their family than a 20-week-old one? Is the person who deliberately and violently assaults their partner in the stomach to cause a miscarriage any less guilty of doing so at 14 weeks than at 20 weeks? I would like to draw attention to part 2, new division 19, of the bill:

(a) the prosecution is not required to allege which act or omission caused the loss of the fetus…

I have an important example for the chamber of why this is so critical. If a woman is assaulted and struck in the stomach and then deliberately stepped on six to seven times, resulting in the loss of a fetus, the prosecution does not need to establish which of the multiple punches or steps caused the loss of that fetus. That fetus was to be named Jonathon. He was at 24 weeks' gestation when his 17-year-old mother-to-be, Kylie Flick, was assaulted by her 112-kilogram boyfriend. Under current South Australian law, only the assault on Kylie would have been an offence, not Jonathon's death. That is wrong.

In another example, using compound injuries and trauma, a woman loses her fetus in a traffic collision caused by a reckless, drug-affected driver. The prosecution would not have to determine that the fetus was lost specifically due to the blunt impact of a car part hitting her belly, the catastrophic rupture of her womb, blood loss from injuries incurred waiting for extraction from a wreckage or the stress and psychological trauma of the accident. That woman was Jacqueline Sparks, and she lost her baby, Mia, who had been growing inside her for 32 to 34 weeks at the time of the car collision.

By this proposed new South Australian law, if the driver was found guilty of reckless driving and drug driving causing grievous bodily harm to the pregnant woman, the prosecution may proceed to also seek a guilty verdict for causing that pregnant woman's loss of fetus. The purpose and strength of new subsection (2)(a) in this bill is to simplify the prosecution's case and to bring strong consequences to the perpetrator. It is consistent practice with other established areas of South Australian law.

Another distinction between the bill presented today and the existing New South Wales legislation is the expansion of prescribed offences. I am going to quote now from campaigner Brodie Donegan. She says:

Births, Deaths and Marriages say you need to have a funeral for your [stillborn] baby. We received a stillbirth/death certificate. We named our daughter. We received the baby bonus paid as the bereavement bonus, as happens after you lose a baby. I received six weeks parental leave from Newcastle University as is also customary if you lose a baby.

There is all this legislation recognising the existence of Zoe, yet when it came to the driver being charged with what happened, she was charged with Dangerous Driving causing Grievous Bodily Harm to me—Zoe was listed with my injuries. To me, she was more important than my injuries. The loss of her was harder to recover from than my injuries.

…Any baby lost in any horrific or violent way due to someone committing a criminal act should count, should be included, and should be recognised.

Parts 3 and 4 of this bill are important to acknowledge the loss endured by families. It is important that a formerly pregnant woman who has lost her fetus due to a criminal act be allowed to give a victim impact statement on that loss, and that statement should affect the sentencing of a perpetrator found guilty. It is also important and equally appropriate for other members to do so as well. If a partner loses the person they were preparing to have a baby with, and that baby also dies in the criminal act, the trauma is twofold. The insertion of new subsection 14(6a) in the Sentencing Act 2017 ensures this right.

Part 4 of this bill, amending section 17 of the Victims of Crime Act 2001, ensures that the loss of a fetus is valued as a death of a family member, not as part of an injury list of the pregnant woman. It honours the fetus as a separate victim of a prescribed criminal act in its own right, and it allows some compensation from the Victims of Crime Fund to be applied for.

This bill is presented in honour of Zoe, Brodie Donegan's baby, and of all the other babies who have been lost to criminal offences. At this point it is unknown how many fetuses have been killed due to domestic violence or died due to various criminal acts as they are currently unlisted and unrecognised victims.

The Pregnancy Outcome Unit of Wellbeing SA does not list the causes of traumatic in-utero deaths in either its Maternal and Perinatal Mortality in South Australia annual report or their Pregnancy Outcome in South Australia annual report, and I have initiated investigations with that unit to see if there is currently any process for recording these incidences. Even so, they will remain anonymous numbers in a government document.

As previously mentioned, this bill does not impact healthcare teams associated with the pregnant woman, such as doctors and midwives, from providing medical assistance, care and advice. This is about a woman and family's right to recognise by law the loss of life taken by criminal acts beyond their control. This is about acknowledging the loss and trauma of a life stopped short, not by choice, but by intrusion. It is about justice and recognition of grief.

I put this bill forward with much respect to women such as Brodie Donegan who have campaigned for 12 years for this bill. To women such as Jacqueline Sparks, who not only lost their baby, but will never be able to have a child naturally due to their injuries. And women such as Kylie Flick, who suffered the mental trauma of domestic abuse along with their loss, and I put this forward with empathy to all the unnamed children and unknown pregnant women who never met their expected child.

Debate adjourned on motion of Hon. L.A. Curran.