ON February 21, 2013 the Honourable Reverend Fred Nile introduced for debate into the NSW Legislative Council legislation that seeks to amend the Crimes Act.
The draft legislation has come to be known as Zoe's Law. The stated purpose of the legislation is to establish a separate offence for conduct causing serious harm to or destruction of a foetus and to extend the offence of dangerous driving causing death or grievous bodily harm to dangerous driving causing the destruction of or serious harm to a foetus.
In introducing the legislation to Parliament, Mr Nile stated that amendment to the law was absolutely necessary to address a deficiency in the law, to extend protection to women during pregnancy and, that the legislation had nothing to do with abortion or termination of a pregnancy.
Mr Nile referred to previous cases of pregnant women being assaulted and subsequently losing their unborn child. Mr Nile then referred specifically to an incident that occurred on Christmas Day, 2009 involving Ms Brodie Donegan.
Ms Donegan was eight months pregnant and had decided to go for a walk to stretch her legs. She was run down by a drug-affected driver. The impact of the collision killed Ms Donegan's unborn daughter Zoe, and caused significant injuries to Ms Donegan. The at-fault driver was charged with inflicting grievous bodily harm.
Mr Nile informed the Parliament that "as Ms Donegan had sustained injury herself, the death of her child in-utero was rendered legally irrelevant. The failure of the law to specifically acknowledge Ms Donegan's loss demonstrated that the concerns of the eight years prior had not been adequately addressed. That is why I am introducing this bill."
Mr Nile went on to inform the Parliament that the draft legislation had the express support of the Catholic Church ArchDiocese of Sydney.
The detail of the legislation is that it seeks to create a specific offence for harm to, or destruction of a child in-utero defined to mean the pre-natal offspring of a woman.
An offence is not committed if it relates to anything done in the course of a medical procedure or anything done by, or with the consent of, the mother of the child in-utero.
The draft legislation then goes on to extend the offence of dangerous driving to include harm to a child in-utero.
Without calling into question the motives of Mr Nile or indeed the Catholic Church in supporting the legislation, it is interesting to note that a wide range of women's groups including Rape and Domestic Violence Services Australia are opposed to the legislation. It is also notable that many critics of the proposed legislation claim that in truth it is designed to subvert existing abortion laws.
The argument is that the legislation is seeking to further enhance the status of an unborn child and that it is not too far away for people to be criminally liable for destroying a foetus simpliciter.
In my view, there are some serious problems with the proposed legislation, too many to be detailed here. In general terms, however, it will, if it becomes law, create the potential for women to be judged as to how they behave and act while they are pregnant.
It is not too much of a stretch to suppose that a women who plays a sport such as hockey while pregnant and loses her baby because of a hard physical knock, could be charged under the legislation.
One of the stated purposes of the legislation is to create a "voice" for unborn children and ensure that their loss of life does not go unpunished. The law already permits a sentencing Court to take into account any aggravating features of an offence and specifically states that a Court can take into account as an aggravating factor that the offence involved multiple victims and that the emotional harm, loss or damage caused by the offence was substantial.
Leaving aside any ethical or moral debates, this is an unnecessary law and bad law and should not be passed.
Whiteley Ironside and Shillington