HANSARD
SITTING CALENDAR
SEARCH
LIVE BROADCAST
Hansard Dynamic Subject Index
Legislative Council - Fifty-Fifth Parliament, First Session (55-1)
2025-11-27 Daily Xml
Contents
Xml

Statutes Amendment (Loss of Fetus) Bill

Second Reading

Adjourned reading on second reading.

(Continued from 30 November 2022.)

The Hon. R.P. WORTLEY (17:44): I rise to speak briefly as the lead speaker for the government on the Statutes Amendment (Loss of Fetus) Bill introduced by the Hon. Sarah Game and indicate that the government will not be supporting the bill.

This bill seeks to amend the Criminal Law Consolidation Act 1935 to create a new strict liability offence of causing the loss of a foetus. The proposed new offence is committed if a person commits a prescribed offence, as defined in the bill, and if the conduct of the prescribed offence causes another person to lose their foetus, a separate offence is committed. In relation to that separate offence of causing the loss of a foetus, the prosecution would not be required to prove that the alleged offender knew or ought to have known that the person who lost their foetus was pregnant, so the offence could be committed despite there being no intent to cause the loss of a foetus.

This would be a significant departure from the longstanding principle of mens rea in this area of criminal law. Another significant departure from the existing law is that the bill would also allow further offences punishable by imprisonment to be prescribed through the regulations. With the regulations not voted on by parliaments, such powers would likely attract criticism from the public.

Further, the bill does not define what a foetus is. Consequently, there are several practical and legal consequences, including evidentiary and causation issues, particularly in relation to the loss of a foetus where the pregnancy is in the very early stages of gestation. For those reasons the government will not be supporting the bill.

The Hon. D.G.E. HOOD (17:45): I rise—it is probably no surprise to anyone—to support this bill, which seeks to establish an offence for conduct causing harm to or the destruction of a foetus. I note that this bill does not define a foetus for the purpose of this new offence but instead refers to the presence or absence of a pregnancy regardless of the gestation period or weight of the foetus. I imagine it would be no surprise that I am of the strong belief that the loss of a life should be recognised when a baby dies in utero no matter what the circumstances and no less as a result of a criminal offence or perhaps especially as a result of a criminal offence.

As it stands the law in our state legally considers the loss of an in utero baby due to a criminal act as an injury to the mother. As the Hon. Sarah Game stated when she introduced this bill, there is presently no validation whatsoever for the profound and significant loss and grief for the mother, father and loved ones who lose a baby due to the crimes prescribed in this bill. Those crimes specifically include, among others, murder, manslaughter, criminal neglect, assault causing death by dangerous driving and rape. It would undoubtedly be deeply distressing for any individual anticipating the birth of a baby to have the death of him or her in such horrific circumstances simply recorded as an injury to the mother. To me it is much more than that.

There is, of course, precedent for this type of legislation in Australia. New South Wales in 2021 enacted what is commonly known as Zoe's law, which I note had bipartisan support in that parliament. It was supported by both the Liberal Party and the Labor Party.

Members are likely familiar with Brodie Donegan's experience of losing her daughter, Zoe, who passed away in utero after being struck by a vehicle driven by a drug-affected individual. It is my sincere hope that our parliament follows New South Wales' lead and passes this bill. The death of a baby in utero should be acknowledged as that of a victim of a prescribed criminal act in their own right.

Indeed, in South Australia, at 20 weeks in utero a baby who is unfortunately delivered stillborn receives a birth certificate and a death certificate. This provision in our current law gives further weight to the need for the passage of this bill before us. Because of that, I think it makes it even more important that we pass this bill. I support the bill.

The Hon. N.J. CENTOFANTI (Leader of the Opposition) (17:48): This bill is about justice for families—families that were meant to be and families that remain incomplete because of criminal acts beyond their control.

Brodie Donegan's life was changed forever on Christmas morning in 2009. At 32 weeks pregnant she went for a walk in a New South Wales neighbourhood ahead of leaving for lunch with family further up the coast. On that walk she was struck by an out-of-control van and pinned against a tree. She had to be extracted by emergency responders. It took nine hours. She lost a lot of blood, and she lost her unborn baby daughter, Zoe.

The woman driving the van was affected by drugs. She was charged and convicted of drug-affected driving and causing grievous bodily harm. Zoe's loss was simply accounted for as an injury and collated as part of the grievous bodily harm offence. Ms Donegan recalls:

I just didn't understand how my daughter, who didn't survive, wasn't being accounted for in the charges, that she would just be listed in my injuries…

We wanted a separate bill to reflect and acknowledge the loss of the child rather than just be counted as an injury...

It took 12 long years for New South Wales to pass legislation acknowledging the loss of an utero baby due to a criminal act. In South Australia we can build upon the example from interstate. Our families should not need to wait that long.

The separate charge that Ms Donegan refers to is exactly what we find in this bill; division 19, reading:

(1) A person commits an offence against this section if—

(a) the person is found guilty of a prescribed offence; and

(b) the conduct to which the prescribed offence relates, whether an act or omission or a series of acts or omissions, causes the loss of a fetus of another person.

I give credit to the drafter from parliamentary counsel for collating such a thorough list of prescribed offences subject to this amendment. I have sought my own counsel to understand why each item was included, and I am satisfied with the list as presented in the amendment bill today.

I understand there are a few key differences between the legislation presented by the Hon. Sarah Game and what has passed in the New South Wales legislation. In New South Wales, to be applicable for their legislation an unborn foetus must be of at least 20 weeks' gestation and 400 grams in weight. Today's bill allows a prosecutor to advocate on behalf of a victim for the loss of a foetus at any stage of their gestation. I believe this new distinction is important.

The want and love a family, whatever that family looks like, may have during an expectant pregnancy can occur from the moment a mother knows they are pregnant. Some expectant mothers have spent years trying to get pregnant and may have spent thousands of dollars on fertility treatment. Imagine finally knowing you are pregnant, passing that early milestone of growing hope and growing love and then having that life ripped out of you by a drunk driver or from an assault or rape. It is an absolute injustice. To then be told by police that the offender will only be charged for injuries to you, not also for tearing apart your dreams of finally starting a family, compounds that injustice.

Sometimes these prescribed offences result in the death of a mother or such shocking injuries that they are not able to ever have a baby in the future. Ms Jacqueline Sparks was about 32 weeks' gestation when a driver affected by the drug ice caused a head-on collision with Sparks and her two brothers, simply on their drive to have lunch together. All three siblings had to be extracted from the wreckage. Ms Sparks' womb was catastrophically ruptured in the accident and had to be removed to save her life. Ms Sparks was able to hold her baby in hospital, her baby, Mia, as she passed away. The images of a bruised and scarred mother-to-be cradling her dying baby circulated the nation's front pages. Ms Sparks has lifelong scars from her chest to her pelvis. Not only did she lose her baby, Mia, but she will never have a baby because of the injuries caused.

Another important part of this bill is specifying that the prosecution does not need to prove which specific act within the offence caused the death of the baby. If a pregnant woman is punched multiple times in the stomach as part of a physical assault causing serious harm and she loses her baby, the prosecution does not have to prove which specific blow caused the loss. Once a person is found guilty of the offence, the prosecution can elect to follow on with the charge of causing the loss of the foetus due to that offence.

Whilst it has always been the right of a victim to give an impact statement prior to sentencing, in this case the mother-to-be, part 3 of this bill allows other relevant people to give a statement as well. The insertion of 14(6a) in the Sentencing Act 2017 ensures the rights of others, such as the father of the baby or a grandparent, to make an impact statement on the loss. This is justice for the trauma caused to the families through criminal offences causing the loss of a baby. Finally, part 4 of this bill enables families to make a claim to the Victims of Crime Fund on behalf of the baby that was lost.

As I said at the beginning of this speech, this bill is about justice for families. It is a family's right to recognise by law the loss of life taken by prescribed criminal acts listed in part 2 of this bill. We must acknowledge the loss and grief of a life taken from their mother. This bill is not about choice, it is about criminal acts that require proper accountability, and it is time we delivered recompense and acknowledgement for all women who have been in this terrible situation. I support the passage of this bill.

The Hon. S.L. GAME (17:53): This bill aims to deliver more appropriate penalties for the loss of an unborn baby through criminal acts. Under current South Australian laws, parents, extended family and friends have zero validation for the life-changing loss and profound grief they experience when an unborn baby is killed, and that is because, as it stands in our state, an unborn baby killed via a criminal act is simply recorded as an itemised list of injuries.

This bill is similar to existing legislation in New South Wales, passed in 2021 with bipartisan support, known as Zoe's Law. Sadly, earlier this month in the northern Sydney suburb of Hornsby, a 33-year-old pregnant woman and her unborn baby died after being struck by a car. A 19-year-old man was subsequently arrested and charged with various charges, including negligent driving (occasioning death) and cause loss of foetus. Had this tragedy occurred in South Australia, police would have been unable to lay that charge.

In this chamber, I have previously highlighted the case of Brodie Donegan and the loss of her baby daughter, for whom Zoe's Law was named. Brodie was walking in her neighbourhood when she was struck by an out of control van piloted by a drug-affected driver. Tragically, Zoe died in utero after the collision. Since I introduced this bill into our parliament, the Queensland parliament has also seen fit to address this issue through Sophie's Law.

Sophie's Law is named after Sophie Milosevic, who was killed in 2014 when a driver under the influence of drugs and alcohol crashed into a car her mother was in at 140 kilometres per hour. At the time, she was 39 weeks and six days pregnant. The driver was given a five-month driving disqualification and a $950 fine. This is wholly inadequate to the loss faced by Sophie's family.

Sophie's parents first campaigned to parliament in 2016 and it was not until 2023 that the law was passed as part of the Justice and Other Legislation Amendment Act 2023. To be clear, this bill does not impact a woman's right to choose an abortion; instead, it acknowledges the death of a baby when that baby, while still in utero, dies as a result of prescribed criminal offences outlined in the Criminal Law Consolidation Act 1935. Those offences include crimes such as rape, criminal neglect and causing death by dangerous driving.

As mentioned, at present the loss of an in utero baby due to a criminal act is legally recognised only as an injury to the mother. A key difference between this bill and the New South Wales legislation is that the latter only recognises babies over 20 weeks of gestation or weighing over 400 grams.

The legislation presented today encompasses all foetuses of any gestation period or weight, and I only reached this important variance after careful legal consultations and some deep thinking because: is a 19-week-old in utero baby of any less significance to the family than a 20-week-old one? Is the person who deliberately and violently assaults their partner, targeting a woman's stomach and causing a miscarriage, any less guilty of doing so when the baby is at 14 weeks than when it is at 20 weeks? I draw attention to part 2, new division 19 of the bill, which states:

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

This is important because, to use a real-life example, if a woman is assaulted and struck in the stomach and then deliberately stomped on, resulting in the loss of her baby, the prosecution does not need to establish which of the multiple punches or stomps was the fatal blow. Or, using another real-life example, if a woman loses her baby in a traffic collision caused by a reckless drug-affected driver, the prosecution would not have to determine that the foetus was lost specifically due to the blunt impact of the car 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.

This bill simplifies the prosecution's case to bring strong consequences to the perpetrator. It is consistent practice with other established areas of South Australian law. Parts 3 and 4 of this bill acknowledge the loss endured by families. Logically, it is important that a formerly pregnant woman who has lost her baby 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 for other family members to do so.

If a partner loses the person they are 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 foetus is valued as a death of a family member, not just as an injury of the pregnant woman. It honours the unborn baby 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.

As 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. It must not be conflated as such; rather, it is about women and families having the right to be recognised by law the loss of a life taken by criminal acts beyond their control.

The council divided on the second reading:

Ayes 6

Noes 13

Majority 7

AYES

Centofanti, N.J. Game, S.L. (teller) Girolamo, H.M.
Hood, B.R. Hood, D.G.E. Pangallo, F.

NOES

Bonaros, C. Bourke, E.S. Franks, T.A.
Hanson, J.E. Hunter, I.K. Lee, J.S.
Lensink, J.M.A. Maher, K.J. Martin, R.B.
Ngo, T.T. Scriven, C.M. Simms, R.A.
Wortley, R.P. (teller)

PAIRS

Henderson, L.A. El Dannawi, M.

Second reading thus negatived.

PARLIAMENTARY BUSINESS
MEMBERS
GET INVOLVED
ABOUT PARLIAMENT
VISIT
LEGISLATIVE COUNCIL
HOUSE OF ASSEMBLY
CONTACT