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Crimes Legislation Amendment (Loss of Foetus) Bill 2021

Published on: November 2021

Record: HANSARD-1323879322-120687

Crimes Legislation Amendment (Loss of Foetus) Bill 2021

Second Reading Debate

Debate resumed from an earlier hour.

Mr ANTHONY ROBERTS (Lane CoveMinister for Counter Terrorism and Corrections) (17:55:44):

— I welcome the opportunity to speak in support of the Crimes Legislation Amendment (Loss of Foetus) Bill, historically known as "Zoe's law". I am honoured to show my support for making it a standalone criminal offence to cause the loss of a fetus when a pregnant mother is injured or killed. I am here today because of two brave women who experienced the loss of their unborn children as a result of another person's criminal act. The stories of Brodie Donegan and Jacqueline Sparks have touched the lives of many. As a father, I can only imagine how hard the journey has been for those families. They have told their stories time and time again and relived the trauma of their losses to campaign for a change at law that will never benefit them—a selfless act and a long campaign that will only help families into the future. Nothing can turn back time or give them back their beautiful baby girls Zoe and Mia.

I was fortunate to meet both Brodie and Jacquie last week when they came to Parliament House. They spoke of the tragedy that was inflicted upon them and their families, and highlighted the need to change the law. Their stories truly exemplify the heart and intention of the bill. I will never forget hearing about Brodie's accident in 2009, on the very day when the world celebrates the love of family and life through birth. It was Christmas Day and Brodie was 32 weeks pregnant when a drug-affected driver lost control of their vehicle and crashed into her, causing unimaginable injuries. On that Christmas Day, Brodie lost her love, her angel, her life—Zoe. Pinned to the ground between the van and a tree, dazed and unable to move one of her legs, Brodie remembered asking desperately about her baby. She recalled:

My next memory ... is at Royal North Shore Hospital where they were trying to locate my daughter's heartbeat, which they found rather quickly. I was hopeful that my daughter still having a heartbeat was good news and it might end up okay. I begged doctors to take her out immediately but they said they needed to stabilise me and work out my injuries. After two hours they couldn't find a heartbeat. I remember yelling to Nick, my husband, as I was wheeled into theatre that he had to call our daughter Zoe because that meant "life". I wanted her to live so badly ... I woke returning to the recovery ward and I asked everyone I saw if my daughter Zoe survived. Eventually, after what felt like a lifetime later, Nick was sent in to break it to me. That they'd tried to resuscitate her but they'd been unsuccessful. That she hadn't been able to hold on. Nick and I were heartbroken.... She was still warm and looked and felt and smelt like any other newborn, she just wasn't breathing. It was so surreal. I wanted to turn back time. I remember looking at her face and seeing the mark on her lip from the resuscitation attempts and noticed one of her eyes partly open. She was absolutely gorgeous and so soft and I just wanted her to wake up so badly.

The funeral for Zoe was held almost four weeks after the accident, when Brodie was well enough to attend. Nick and Brodie both spoke at the funeral, their words cutting to the heart of why these reforms are needed:

We had lost our little girl. She would never get to do the things our two year old daughter Ashlee had done or will do. We'd never see her take her first steps, smile, go to school or grow up. All our hopes and dreams for Zoe were lost and she'd lost all of us ... We still couldn't reconcile that we were having a funeral for the death of a baby that the law wasn't charging someone for.

At that time, and still now, the law only recognised the loss of a fetus of a pregnant woman through Byron's law as an injury to the mother. In court, Brodie heard her list of injuries presented to the magistrate and Zoe was included as one of her injuries—at law, Zoe was nothing more than an injury to Brodie. From that day in 2009 Brodie began a campaign, which has lasted 12 years to date, calling for this anomaly in the law to be changed. The campaign can be summed up in one quote from Brodie:

My injuries healed. Zoe did not.

And Brodie is not alone. Last week Jacquie Sparks said to me:

This law will really make a difference to a family in the future. Our daughters were everything to our lives. At the very least their loss of having a life can be accounted for.

Jacquie's story is also heartbreaking. In 2013 Jacquie was struck by a car travelling in the wrong direction, causing serious injuries to Jacquie and two others. Jacquie was 32 weeks pregnant. Jacquie's womb was ruptured. Jacquie's unborn child, Mia, did not survive. Tragically, Jacquie's first pregnancy would be her last. Mia was listed in court as an injury to Jacquie. Describing the inadequacy of the law in 2014 in sentencing the driver, District Court Judge Paul Conlon said:

Lest there be any doubt about my use of the phrase 'life of an infant', one only has to look at the photograph of Ms Sparks in the hospital bed looking down at her perfectly formed, although dead baby daughter in her arms. However, the court must work within the parameters set by the legislature.

Outside the courtroom, Jacquie called for Zoe's law to be supported in New South Wales. In 2019 Jacquie held up the photo of her baby, Mia, and said:

This is our daughter. Look at her and tell me that she should legally be listed as an injury... I nurtured her, dreamed of her, grew her. We named her, we held her, we buried her. My first and my last. We need to recognise and acknowledge the loss of an unborn child as a result of a criminal act of a third party. This reform is about her and us and all the other families that have lost their babies, not by choice or illness or fate. But because of someone else's criminal act. It is crucial that our children are recognised within criminal charges. Mia was not an injury. She was everything. We must create something that protects and recognises this, and I welcome any alternative that will see a separate charge brought forward.

I am honoured to speak on behalf of Brodie and Jacquie as well as other expectant parents who have gone through similar traumatic experiences. Their years of courage and advocacy for these reforms have taken a toll on them and their families. I am confident that if the reforms are passed, this long and unbearable road will have been worth it. While Brodie and Jacquie will never get the opportunity to personally feel the benefits of the reforms, they feel comforted in the knowledge that they were directly responsible for ensuring that no other parent will experience the same pain. Currently there is no standalone offence of causing the loss of an unborn child. The proposed changes will better acknowledge the heartbreak suffered by families like Brodie and Jacquie's, as well as punish offenders appropriately. Currently the law in New South Wales recognises the destruction of an unborn baby as grievous bodily harm to the pregnant woman. Currently there is no guarantee that the loss of a fetus will be specified within the particulars of a criminal charge, nor result in a higher penalty to recognise the criminality of the act or the unique harm caused by the loss.

The inadequate representation under the existing law, whereby the loss of an unborn child is considered an injury to the mother, became abundantly clear in 2018: Katherine Hoang was nine months pregnant with twins when the Nissan Tiida she was in collided with a Mazda 3 driving in the other direction at Orchard Hills. Katherine, the twins and a young relative were all killed; Katherine's husband, Bronko, was the only survivor. Bronko spent a week in a coma, unaware that his family was gone. When he was told, he screamed in agony for the loss for his wife and his two unborn children. Tragically the law did not recognise the loss of the twins; they were injuries to their mother, Katherine. Bronko described it at the time as an insult. He said:

These reforms are long overdue and are simply commonsense.The bill aims to strengthen the criminal law and itsrecognition of the loss of a fetus as a distinct harmsuffered by a woman and her immediate family.These amendments also will improve support andrecognition available to families by allowing close familymembers of aprimary victimto give a victim impactstatement to the court.This is particularly important when the pregnant womanhas died.The addition of close family members is welcomed byBrodie's partner, Nick.Nick has not only supported Brodie in campaigning forreform but also has called for family members to be allowed to give victimimpact statements.

I did not bury my wife and two injuries. I buried my wife and my unborn twin sons. In 2013, detailing the hurt also felt by expectant fathers, Nick said:

I cannot hold my daughter or see her grow up with her sister, Ashlee, and her little brother, Lachlan. Lachlan will never have the opportunity to know her. One day, when he is older, I will have to explain to him what happened to his big sister, just as I had to do with Brodie and Ashlee, and our family and friends on Christmas day. I was the first to hold Zoe after she had been delivered stillborn. I held her for several hours, she was perfect in every way and I did not want to let her go. Her death was made far more poignant by the fact that only 24 hours earlier, we had been watching her on an ultrasound and she was given a clean bill of health. Zoe was my second daughter and always will be, despite her not being recognised in criminal law. When I started approaching members of Parliament and the media about Byron's Law, and the possibility of changing the current laws, I quickly realised I had a battle ahead of me.My story was met with a short sympathy and good luck. Media attention focused on Brodie, and even to this day I am saddened by a sense of invisibility when it comes to Zoe's life. As her father, I felt voiceless in the loss of Zoe's life and when Brodie was recovered enough she continued her own efforts, where I had failed

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Extension of time

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I thank Nick, not only for his support of Brodie, but also for sharing his grief as a father and highlighting the importance of victim impact statements. The proposed amendments do not affect reforms introduced by the Abortion Law Reform Act 2019. The offences will expressly exclude any act or omission by the pregnant woman. However, bill does acknowledge and protect a woman's right to choose to carry her pregnancy to full term and it acknowledges her loss in the same scope as the requirements under Births, Deaths and Marriages when that right is suddenly taken away by a serious criminal offence. Brodie's words describe the requirement:

Births Deaths and Marriages say you need to have a funeral for a baby born over 20 weeks. 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 over 20 weeks. I received six weeks paid parental leave from Newcastle University.

Further to these requirements, the unborn child is listed on subsequent siblings' birth certificates, and the loss of the unborn child is included in the road toll statistics from 20 weeks on. Under the Births, Deaths and Marriages Registration Act 1995, a stillborn fetus of at least 20 weeks gestation, or over 400 grams if the gestational period cannot be adequately determined, is required to be registered as a birth in New South Wales. The Act requires parents of a stillborn to name their stillborn baby. It requires the stillborn baby to be buried or cremated and a perinatal medical certificate to be registered with Births, Deaths and Marriages. The stillborn certificate and a birth certificate is issued.

The decision to commence the offences from 20 weeks gestation onwards is not arbitrary. It is specifically chosen in order to correlate with existing legislation. This bill does not propose any new offences; rather, it works within the framework of selected existing grievous bodily harm offences. These reforms are common sense. They strike the right balance by recognising and implementing changes that acknowledge the gravity of the loss of an unborn baby, without abrogating the "born alive" rule or conflicting with the rights of the pregnant woman. Zoe's Law is about recognising life. That is exactly what we are trying to achieve today. With the indulgence of the House—and I know it will embarrass him—I would like to formally acknowledge, recognise and pay tribute to Chris Spence and his tireless efforts to ensure change in this area of law is achieved. Chris has been a tireless supporter of Brodie and Jacquie and petitioned alongside them for change in the legislation to reflect community concern and expectation. Indeed, Chris has been a strong advocate for this issue over the past 12 years, both inside and outside this House. I can truly say that this legislation would not be before the House today without his efforts. I commend the bill to the House.

Dr MARJORIE O'NEILL (Coogee) (18:09:04):My contribution to debate on the Crimes Legislation Amendment (Loss of Foetus) Bill 2021 will be brief. I acknowledge the huge amount of work that has been done by the Opposition's shadow Attorney General and member for Maroubra, Michael Daley, and our shadow Minister for Women and member for Charlestown, Jodie Harrison, throughout the significant amount of community consultation they have conducted in a short period on this highly complex legislation. I do not think anyone can deny that the loss of a fetus as a result of a person's criminal offence would be a truly harrowing experience. Undoubtedly, this experience would be incredibly distressing and traumatising for the parents, their families and the wider community around thatfamily.I acknowledge all the expectant parents, especially Brodie Donegan, who have become advocates for reform and who have been able to turn their grief into strong and positive advocacy. I recognise their courage and remarkable advocacy over many years for these reforms.

Thisbill represents the latest in several attempts over the lastdecade to change the law in relation to the killing of a fetus in New South Wales, which is often referred to as Zoe's Law.Under current laws, the loss of a fetus through a criminal act isconsidered grievous bodily harm to a pregnant woman.There is no separate offence for the unborn baby. This is important reform that recognises the loss of a fetus as the result of a third‑party criminal act. This legislation supports the widely held community view that itis necessary to recognise in the criminal law the loss of a fetusas a result of a criminal act of another. The bill introduces two new offences into the Crimes Act 1900,relating to the loss of a fetus due to criminal acts. The new offences can be charged when a fetus has reachedthe gestational age of at least 20 weeks, or 400 grams in weight.

A new offence under proposed section 54A, "Offence of causing loss of afoetus", will be charged when grievous bodily harm has beencaused to a pregnant person, causing the loss of the fetus.The bill provides that when a person is charged with one of thoseoffences and this alleged act causes the loss of a fetus, theproposed section 54A will also allow a new offence to be included in the criminal prosecution. The new provision allows for an additional maximum penalty that is three years higher than is currently available for the same conductunder the existing law.

A second offence, contained in proposed section 54B, "Offence ofcausing loss of a foetus (death of a pregnant woman)", willoperate in similar terms to 54A.An offender can be charged with ahomicide offence,such as murder or manslaughter, when thepregnant person is killed and the fetus is lost as a result of theconduct.This offence also will carry an additional maximum penalty of three years' imprisonment. This bill also ensures that families are able to claim funeral costsfor the loss of an unborn child caused by car accidents and that bereavement payments also will be made available tohelp families access counselling when either of the newoffences is charged.

Most significantly, the bill provides that proposed sections 54A and 54B do not apply to the termination of the pregnancy under the Abortion Law ReformAct 2019 oran act or omission of a pregnant woman that results in theloss of the woman's fetus.Therefore, the bill will not affect a pregnant person's ability toobtain a lawful abortion under reforms introduced by theAbortion Law Reform Act 2019.In addition, the bill does not displace the "born alive" rule and therefore does not recognise fetal personhood.This bill has been a long time in the making.Since 2013 there have been multiple attempts by New South Walespoliticians to revive what is known as Zoe's Law.This bill goes a long way to acknowledging the gravity ofloss of a fetus without abolishing the rights of women.

I acknowledge the in-depth community consultation by the Opposition in the last week of the design of this bill, including the strongadvocacy of BrodieDonegan, and the members of Family PlanningNSW on behalf of Women's Health NSW andWomen's Electoral Lobby, Our Bodies Our Choices, Rape &Domestic Violence Services Australia, and Australian Medical Association(NSW), all ofwhom support the bill.The Opposition does not oppose the bill.

Mrs TANYA DAVIES (Mulgoa) (18:14:11):

I speak in support of the Crimes Legislation Amendment (Loss of Foetus) Bill. In September 2018 on the northern road near Orchard Hills in the Mulgoa electorate, the Hoang family was travelling home one night when a drunk driver collided head‑on with their car. Twenty‑three‑year‑old Katherine Hoang, nee Gordan, and her sister‑in‑law, Belinda Hoang, were killed in the crash. Husband to Katherine and brother to Belinda, Bronko Hoang, suffered serious brain, head, leg and other internal injuries, and woke up from a coma a week later to find out that four members of his family had died on that fateful day. Katherine Hoang was just days away from giving birth to twin boys. Had the accident happened just a few days later, with the Hoangs coming home from hospital with their newborn babies, the deaths of those baby boys would have been separately recognised by law. However, because the Hoang's twin boys were in utero, the driver was charged with only two counts of manslaughter, and causing grievous bodily harm to Bronko Hoang.

While the drunk driver was sentenced to 10 years in prison, the deaths of the twin boys were not recognised under New South Wales law. At the time of the accident, former Premier Gladys Berejiklian made a commitment to introduce laws to recognise the death of an unborn child killed during a criminal act. In November 2018, about two months after the accident, the New South Wales Government committed to seek expert advice and community feedback on how the loss of a fetus as a result of the third party criminal act might be better recognised in New South Wales law. The New South Wales Government has subsequently considered reform options in consultation with stakeholders and members of the community. It is quite clear that it is a delicate and difficult balance to strike. From the outset I say that I have been a strong advocate for a law such as this to be passed through this House, ever since the first call for Zoe's law by members impacted by such criminal acts.

I met Brodie Donegan last week, but I have known of her and Nick's story and their child for many years. The same tragedy experienced by the Hoang family and their twin boys occurred in my electorate on a busy road I travel on many times a week conducting my electorate duties and serving my community. I confess that every time I drive past that spot I think of them, and not a day goes by that I forget that tragedy. On the occasions when my young daughter was in the car with me and saw the significant number of teddy bears, crosses and flowers heaped up on the fence around what was Penrith Golf Club, it always drew her attention. One day she asked me whether we could buy something to place at that location in recognition and honour of not only the two ladies who died but also the two little boys that our community would no longer have the opportunity and privilege of getting to know.

While Brodie Donegan's story has impacted me personally over many years, it was the Hoang family tragedy that drove the need for reform into my heart. I persisted to ensure that we worked consistently and without giving up to achieve the bill before the House. I recognise that members have expressed concerns that the bill could be a Trojan horse to trample on other reforms for women's reproductive rights. I assure the House that is not even remotely close to being factual. After many years of advocacy from many members in this place and the other place, as well as the tireless advocacy of Brodie Donegan, Jacqueline Sparks and others, it is a momentous day to contribute to debate on this bill, which will expressly recognise the loss of an unborn child as a unique injury and loss for the pregnant woman and other family members.

Under the new laws, if a third party criminal act such as dangerous driving causes the loss of a fetus, the following charges may be available: If the fetus is less than 20 weeks, a charge can be laid against the accused under existing grievous bodily harm offences, with a maximum penalty of up to 25 years' imprisonment depending on the type of criminal act; if the fetus is at least 20 weeks, or 400 grams, the accused can be charged with the new offence of causing the loss of a fetus, with a maximum penalty of five to 28 years' imprisonment depending on the type of third party criminal act; if the pregnant woman sustains other injuries, the accused can be charged with and convicted for both the new offence of causing the loss of a fetus and any other charge under the Crimes Act 1900 for the pregnant woman's other injuries; and if the pregnant woman is killed as a result of the third party criminal act and the fetus is at least 20 weeks, or 400 grams, the accused can be charged and convicted for both homicide of the pregnant woman and the new offence of "causing the loss of a foetus (death of a pregnant woman)".

This legislation will finally bring appropriate justice for those who lose an unborn baby as a result of a criminal act by a third party. Not only will it ensure proper justice for the families who lose an unborn child as a result of a criminal act, the legislation will also improve support to parents who have lost an unborn child of any age. The reforms provide support to families and recognition of the loss of an unborn child of any age by enabling immediate family members of a pregnant woman whose fetus was lost—not only the mother—to make victim impact statements that may be considered by the courts when sentencing offenders by amending the Crimes (Sentencing Procedure) Act 1999; the name of an unborn child lost as a result of a criminal offence to be included in the formal wording of the indictment, which sets out the details of the alleged offences against an accused, by amending the Criminal Procedure Act 1986; and family members to claim funeral costs for the loss of an unborn child caused by a car accident by amending the Motor Accident Injuries Act 2017. In addition, families who lose an unborn child where one of the new offences is charged may be eligible for a one‑off $3,000 payment under the reforms. That bereavement payment scheme will assist families to access support services, including counselling.

Those important and vital reforms will not only recognise the tremendous tragedy of losing an unborn child as a result of a criminal act but also provide parents with the support they need, as well as recognise each individual child by having their name in the formal wording. I congratulate the Attorney General and the Premier on this legislation. It will ensure greater justice and recognition for the loss of children in those circumstances so that the experiences of the Hoang and Donegan families in the aftermath of their tragedies will never occur for another family again. I congratulate Brodie Donegan on her tireless advocacy over the last decade. It has been a long battle fighting for this achievement. I echo the words of Minister for Counter Terrorism and Corrections, the Hon. Anthony Roberts, who acknowledged the work of a former member for The Entrance, Chris Spence, who was Brodie Donegan's member of Parliament. I remember his tireless fighting and toiling to get this legislation through this House when he was the member, and I acknowledge his efforts. It is a historic day to see Brodie's advocacy, and the advocacy of many in this place, achieve this important legislation. I commend the bill to the House.

Mr DAVID MEHAN (The Entrance) (18:24:09):

I contribute to debate on the Crimes Legislation Amendment (Loss of Foetus) Bill 2021. I note that the bill seeks to amend four Acts: the Crimes Act 1900, the Crimes (Sentencing Procedures) Act 1999, the Criminal Procedure Act 1986 and the Motor Accident Injuries Act 2017. Labor supports the bill. The current law in New South Wales recognises the destruction of a fetus as grievous bodily harm to the pregnant person. There is no separate offence to address an act which causes the death of the fetus. The bill addresses that problem. New section 54A will be introduced into the Crimes Act 1900, which will be called "Offence of causing loss of a foetus". That will be a charge when grievous bodily harm has been caused to a pregnant person causing the loss of a fetus.

The second section to be introduced into the Crimes Act is new section 54B, which will be called "Offence of causing loss of a foetus (death of a pregnant woman)". That will operate in similar terms to new section 54A and will be charged as a homicide offence when the pregnant person is killed and the fetus is also lost as a result of that conduct. Those two separate new offences will carry additional penalties on top of the penalties that already apply to the offence against a pregnant person.

The Crimes Sentencing Procedures Act 1999 will be amended to allow for immediate family members of the pregnant person whose fetus was lost to make a victim's impact statement. The Criminal Procedure Act will be amended to allow the name of the fetus lost to a third‑party criminal act to be included on the initiating process or in the indictment of the criminal charge. Currently, the law does not allow that. It will not be compulsory and the pregnant person may request that the fetus' name not be included in the indictment. The Motor Accident Injuries Act, which currently allows for payments to be made to a person injured in a motor vehicle accident will be amended to allow for a pregnant person to claim funeral costs for the fetus if it was lost as a result of a motor accident.

Most significantly, the bill provides that proposed sections 54A and 54B do not apply to termination of a pregnancy under the Abortion Law Reform Act 2019 or an act or omission by the pregnant person that results in the loss of the pregnant person's fetus. I acknowledge the work of my constituent Brodie Donegan and I remind the House of the circumstances surrounding Brodie's loss. On Christmas Day 2009, Brodie was pregnant with a daughter, Zoe, and was hit by a drug‑affected motor vehicle driver which ended in injuries to Brodie and the death of Zoe. That began Mrs Donegan's campaign over the 12 years since to have the loss of Zoe properly recognised as an offence separate to the offence against her bodily person, recognising the loss of Zoe as a fetus and an unborn child. The Attorney General has put together a thoughtful and well‑framed bill. I commend the bill to the House.

Ms FELICITY WILSON (North Shore) (18:29:02):

I am very pleased to support the suite of reforms proposed in the Crimes Legislation Amendment (Loss of Foetus) Bill 2021. There is really nothing we can say in this House that will acknowledge or recognise sufficiently what many parents and families go through when they lose their unborn babies as a result of criminal acts. The Government knows that it has taken too long to get an outcome for those individuals, families and babies to be recognised under criminal law. I am proud that the Government has introduced the reforms to Parliament to make sure that we can do that.

I acknowledge two of the mothers who have been instrumental in working towards the reform, Brodie Donegan and Jacqueline Sparks. They and members of this place have made many attempts to bring legislation to fruition to address this under criminal law. I acknowledge the Attorney General for his work in walking the very narrow line of getting the right legislation passed. We have seen incredibly courageous people, particularly courageous women to have lost their babies in this way, using their own incredible sense of feeling and loss to drive advocacy and outcomes for the rest of our community. I thank them for that work.

The bill represents an important change to the law in New South Wales which will ensure that the devastating impact of losing an unborn child as a result of the criminal act of somebody else will have greater recognition under the law. In New South Wales the most serious offences are heard before the District Court or the Supreme Court and those proceedings are known as indictable proceedings. An indictment is the instrument that provides the court with jurisdiction to hear a criminal trial. It is a formal document that is presented in the name of the Queen and is duly signed and authorised either by the Director of Public Prosecutions, the Attorney General or a person delegated on their behalf, such as a Crown prosecutor.

An indictment must set out each of the offences with which the accused is charged. Each of the counts in an indictment must contain a statement setting out each of the elements of the offence that the Crown is required to prove and sufficient information about the allegations for the accused person to understand the case that is being brought against them. That information is known as the particulars of the charge. It is on the basis of an indictment that an accused person pleads guilty or not guilty to the charges. Because of the important role played by an indictment, it is vital that the details are correct. Numerous cases have resulted in a conviction being overturned when an error or defect has appeared in the indictment, such as where it wrongly states the elements of the offence or some other material particular.

To ensure the integrity of proceedings, section 16 of the Criminal Procedure Act 1986 provides a list of grounds on which an indictment will not be bad, insufficient, void, erroneous or defective. That includes grounds such as the addition of certain unnecessary phrases, the naming of a person by their office rather than their proper name or leaving out the date on which the offence was alleged to have been committed except where the date is essential to proof of the offence. The bill will add to this list a sub‑provision which provides that an indictment for an offence under the Crimes Act 1900 relating to the destruction or loss of a fetus, regardless of the gestational age of the fetus, will not be defective for stating the name of the fetus. That provision will ensure that where a prosecutor, in consultation with the victim of the offence, or the victim's family where the victim is deceased, decides that it is appropriate to include the name of the unborn child in the particulars of the indictment, the indictment will not be defective because of that inclusion. That will provide certainty for courts, prosecutors, victims and their families, and accused persons as to the validity of an indictment presented by the prosecution which names the unborn child.

The amendment will apply to both the new offences in schedule 1 to the bill and any other relevant offences that address criminal behaviour that causes the loss of a fetus. It will not be necessary to prove that a fetus had a gestational age of 20 weeks or more for the provision to apply. The amendment provides an important way for us, the courts and the justice system to recognise the loss of a fetus as a result of a criminal third‑party act. It will respond to the strong submissions from affected families requesting to have the name of their unborn children to be included independently in a charge and read out in court. We know how crucial agency, identification and recognition are when it comes to a life that was taken and never lived and how crucial it is for a fetus to be recognised with its identity and the name and love borne upon it by its family. The amendment will not make it mandatory to name on an indictment, and doing so may not be appropriate in all cases. For example, many fetuses would not yet have been named or the pregnant woman or the family may not wish to have the fetus named on the indictment. In those cases, it will not be necessary to name the fetus on the indictment.

Importantly, this amendment will not displace the born alive rule. We have had many discussions in this place about what is appropriate when talking about the born alive rule. It is an important principle of our law that legal personhood does not come about until a person is born alive, meaning that they have taken their first breath and are capable of life independently of the pregnant woman. Instead, this amendment will ensure that the terrible harm caused to a pregnant woman and her family where a fetus has been lost due to the criminal act of another can be properly reflected in the particulars of the charge as they appear on an indictment.

I say again that there is very little that we can do in this place to ever take away or make amends for the loss that these women and families have suffered. I have been very fortunate to have carried two babies—two beautiful, healthy young children—to term. I know, in particular, the feeling of being pregnant and the connection you have with the baby within you—the hopes, the dreams and the aspirations for that life yet to be lived. I could not imagine the horror of having your baby taken from you at that point, but in particular knowing that it is done because of the criminal act of another borne out onto you. This law will go some ways towards making sure that we recognise that loss and provide a sense of justice for those families and pregnant women. I am very pleased to support these reforms and commend the bill to the House.

Ms KATE WASHINGTON (Port Stephens) (18:36:03):

I contribute to the debate on the Crimes Legislation Amendment (Loss of Foetus) Bill 2021. On Christmas Day in 2009 Brodie Donegan, who was 32 weeks pregnant, went for a short walk to stretch her legs. Just 20 metres from her driveway, a drug-affected driver swerved off the road and struck her. The impact shattered Ms Donegan's pelvis, lower spine, hip and right foot. She went headfirst through the windscreen of the driver's mini-van. The driver was affected by a cocktail of drugs when she struck poor Brodie Donegan at Ourimbah, killing the baby that had been growing inside her for eight months. The driver was convicted of two charges, including dangerous driving causing grievous bodily harm. She was sentenced to nine months jail followed by an 18-month parole period. Brodie and her husband, Nick Ball, had intended to call their baby Zoe.

Brodie's experience in the criminal justice system following her terrifying experience led to the bill we are debating today. Brodie could not reconcile how their tragic loss was simply listed as injury to her own body. To Brodie, this tragic loss was not acknowledged in our criminal laws or in the criminal justice system. Since then, she has bravely advocated for change. But making change has been challenging. Over the past decade, Zoe's law has taken many forms. All of them have been unsupportable, until this version. The complication arose from a missing protection under our laws for women and health workers—the right to a lawful abortion in New South Wales.

In its first iterations, Zoe's law, as presented to Parliament, created a barrier to decriminalising abortion in New South Wales. Currently under the law a child is not regarded as a legal person until it is born and takes its first breath. The first versions of Zoe's law sought to reverse this principle and grant legal status or personhood to a fetus. This change would have undermined the ability of women to make decisions about their body. It would have affected women's reproductive rights. In relation to the earlier version of Zoe's law, Julie Hamblin of HWL Ebsworth Lawyers—a health lawyer—said it would have added "a new weapon to the armoury of those seeking to secure a conviction for unlawful abortion". For these reasons, Brodie Donegan herself did not support that version of Zoe's law.

Since then, thankfully, abortion has been decriminalised in New South Wales. After a hard-fought, decades‑long campaign, women may now access lawful abortion. It is a right that women do not want to ever lose. We cannot afford any backward step. We cannot afford to jeopardise a woman's right to choose, a woman's right to access reproductive health care or a health professional's role in providing health care. For that reason, the Labor Opposition has approached this bill with extreme caution, and consultation with stakeholders has been extensive. I thank our shadow Ministers—the shadow Minister for women and prevention of domestic violence, Jodie Harrison, who is in the Chamber tonight, and shadow Attorney General, Michael Daley—for their extensive consultation with stakeholders over a very short period of time.

I also thank Ann Brassil from Family Planning NSW, who has provided a considered position statement on behalf of Family Planning NSW and also on behalf of Denele Crozier from Women's Health NSW, Mary O'Sullivan from the New South Wales Women's Electoral Lobby and Julie Hamblin from HWL Ebsworth Lawyers. I also thank Catherine Henry of Catherine Henry Lawyers who has been involved in this conversation for a long time and has campaigned hard from the Hunter against the earlier iterations of Zoe's law. She also contributed to the Opposition's consultations on this current bill.

The bill before us today creates two new criminal offences in relation to causing the loss of a fetus by amending the Crimes Act 1900, and inserting new sections 54A and 54B. In effect, if someone is charged with grievous bodily harm or homicide, and their actions cause the loss of a fetus, a new offence will be added to the charge list, and the person could have another three years added to their sentence as a result. The bill also introduces financial provisions for funeral arrangements for the fetus, expands the eligibility of family members who can make a victim impact statement in court and allows the name of the fetus to be included on a criminal charge, if that is the wish of the harmed person.

Importantly, the bill does not undermine the longstanding legal principle whereby a child is not regarded as a legal person until it is born and takes its first breath. To be abundantly clear, this bill does not introduce the concept of fetal personhood into the New South Wales Crimes Act, as previous iterations of this bill have attempted to do. Indeed, the bill specifically states that neither of the two new offences will apply where the loss of the fetus was due to a lawful termination or any act or omission of the pregnant person themselves. So whilst the bill before us today is different to what has been presented to this Parliament before, the path we have taken to get here has certainly been very rocky. We have seen examples in other jurisdictions where a woman's right to choose has been eroded. We must never go there. And, whilst Labor is supporting the bill before us today, it does so with considerable caution. The gains women have made in this State have been hard fought and gruelling.

It is important to recognise the understandable sense of unease among some women's advocates with regard to this bill. Many believe, in good faith, that this change is conceptually the start of a slippery slope to fetal personhood and its historically anti-abortion, anti-women sentiments. Indeed, I share the view of the majority of stakeholders that this bill should be passed with no amendments, therefore closing the door on a lengthy and painful process for so many women and advocates in New South Wales. I also recognise and respect the view of other stakeholders that this law is unnecessary. They argue that our laws already provide for greater sentencing for harm done to a fetus, and that the risks associated with this change are far too great.

In respecting those views, it is essential that this bill is not amended to include fetal personhood or any provisions allowing the prosecution of a person for causing the death of their own fetus, intentionally or unintentionally, or the prosecution of health workers for causing the death of a fetus in the course of the provision of health care. For me and many others, these issues form the line in the sand. Given this bill does not introduce any of these aspects, the Labor Opposition does not oppose this bill. Finally, I acknowledge Brodie Donegan for her impressive campaign following her unthinkable experience. Should any other expectant parents and their families experience something similarly heartbreaking, I hope that this law—Zoe's law in its latest and final form—ensures the criminal justice system better reflects the gravity and enormity of their loss.

Ms ELENI PETINOS (Miranda) (18:44:12):

I speak in support of the Crimes Legislation Amendment (Loss of Foetus) Bill 2021. The loss of a child in any circumstances is devastating. I cannot begin to fathom the pain that expectant parents would experience when grieving the loss of their unborn child due to the criminal actions of another person. Currently no individual offences address the loss of a pregnancy due to a criminal act and that is why the need for the bill is paramount. It is crucial that we implement the proposed amendments that the bill seeks to introduce so that parents can access better justice. The loss of the fetus must be acknowledged by the criminal justice system. The purpose of the bill is to create two new offences to expressly recognise the loss of an unborn child due to criminal acts, and improve support and recognition for parents who have lost an unborn child in these circumstances. The introduction of the two new offences will include a standalone offence that will apply to a wide range of criminal acts and an offence that will apply to circumstances where the pregnant mother and her unborn child are lost due to a third party criminal act.

By way of background, there has been a longstanding need for the introduction of these legislative amendments. In recent years there have been several tragic cases involving pregnant women losing their unborn children as a result of the criminal actions of third parties. These distressing incidents have been brought to the attention of the community, which has questioned whether the New South Wales criminal law gives adequate recognition to instances where criminal acts cause the loss of an unborn child. In 2018 the New South Wales Government committed to seek expert advice and community feedback on how these tragic circumstances may be better addressed and recognised in our law. Through considering reform options, and consultation with stakeholders and members of our community, the New South Wales Government has developed the bill to better support families that lose an unborn child due to criminal acts and ensure offenders face tougher sentences.

The bill will strengthen the law by creating two new offences in the Crimes Act 1900, including an offence of causing the loss of a fetus, which will apply to a wide range of criminal acts and carry a maximum penalty of five to 28 years imprisonment depending on the type of act, such as dangerous driving or grievous bodily harm with intent to the pregnant woman. The combined maximum sentence for this offence and the existing criminal offence will be three years higher than currently available for this conduct under existing law. It will also create an offence of causing the loss of a fetus by death of a pregnant woman, which can be charged with a homicide offence such as murder, manslaughter or dangerous driving occasioning death where the fetus is lost and the pregnant woman is killed due to a third party criminal act. This offence will carry a maximum penalty of three years imprisonment and apply in addition to the maximum penalty for the homicide offence. I note that these can be changed where the unborn child is of at least 20 weeks' gestation or 400 grams in weight consistent with the Births, Deaths and Marriages Registration Act 1995.

Additionally, the bill will also improve support and recognition available to expectant parents. The bill will reform the Criminal Procedure Act 1986 to allow the name of an unborn child of any age lost as a result of a criminal offence to be included in the formal wording of charges against an accused, reform the Crimes (Sentencing Procedure) Act 1999 to allow family members of an unborn child of any age to make victim impact statements that may be taken into account by the courts when sentencing offenders, and reform the Motor Accident Injuries Act 2017 to enable family members to claim funeral costs for the loss of an unborn child of any age caused by a motor accident. These reforms are incredibly important as they allow families to focus on their grief without financial burdens and provide them with the opportunity to contribute their own stories during the court process.

I note that the proposed amendments do not affect reforms introduced by the Abortion Law Reform Act 2019, which has been of great concern to many members during debate. The offences expressly exclude any act or omission by the pregnant woman. Furthermore, these reforms are not intended to displace the centuries old "born alive" rule, which provides that a crime of violence such as homicide can only be committed on a legally recognised person—a status attained when someone is born and takes their first breath. In addition to the bill, the New South Wales Government is establishing a bereavement payment scheme to provide for a one‑off payment of $3,000 to families who lose an unborn child when one of the new criminal offences is charged. This is another important step in assisting families to access support services such as counselling. The purpose of the bill is not to replace the pain or tragic nature of these circumstances. However, the important amendments that the bill seeks to introduce will provide better support to grieving families and achieve justice for the victims of these crimes. I support the Crimes Legislation Amendment (Loss of Foetus) Bill 2021.

Mr MARK SPEAKMAN (CronullaAttorney General, and Minister for Prevention of Domestic and Sexual Violence) (18:49:53):

— In reply: I thank the member for Maroubra, the member for Holsworthy, the member for Newtown, the member for Charlestown, the member for Camden, the member for Keira, the member for Terrigal, the member for Prospect, the member for Wollondilly, the member for Maitland, the member for Lane Cove, the member for Coogee, the member for The Entrance, the member for North Shore, the member for Port Stephens and the member for Miranda for their respective considered contributions to this debate.

I also recognise, again, victim‑survivors and other stakeholders for their ongoing engagement with these reforms and for advocating to ensure that these reforms are appropriate, will be effective and will work to support those who have lost an unborn child rather than criminalising or marginalising women. I recognise in particular the advocacy of Brodie Donegan, Nick Ball and Jacqueline Sparks. Let me be clear: It is not the intention of the bill to criminalise women, nor will it be the outcome. Careful and extensive consultation and consideration in drafting have occurred to ensure that this is not the case.

I now turn to address several matters that have been raised in debate by members, including by the member for Charlestown, the member for Newtown and the member for Maitland. The member for Charlestown and the member for Newtown raised concerns about the risk that the bill will criminalise a pregnant woman miscarrying or for her behaviour that may cause the loss of her fetus. The bill will not undermine bodily autonomy, disrupt the Abortion Law Reform Act 2019, criminalise the conduct of a pregnant woman or affect a person's ability to obtain a lawful abortion. The proposed new offences in schedule 1 to the bill will not in any way criminalise a woman for her behaviour that may cause the loss of her fetus, nor will they affect a person's ability to obtain a lawful abortion. This is made abundantly clear at proposed section 54A (6), which states:

Proposed sections 54A and 54B do not apply to—

Abortion Law Reform Act 2019

(a)the termination of a pregnancy under the , or

(b)an act or omission of a pregnant woman that results in the loss of the woman's foetus

This is repeated at proposed section 54B (5), which states expressly that the new offences do not apply to those scenarios. The text of the legislative drafting is unequivocal in this regard and I have made this limitation very clear in my second reading speech. It is not the purpose or effect of the bill to impact on the Abortion Law Reform Act 2019 or capture "any act or omission of a pregnant woman". This wording of this phrase "any act or omission" is broad and plain. The purpose of the bill and these offences is instead to address the criminal behaviour of a third party that causes the loss of a fetus of a woman and to better support women who are offended against in this way.

In addition, proposed section 54A captures behaviour where a person's act or omission constitutes an offence under a provision of the Crimes Act that creates an offence involving physical elements of causing grievous bodily harm to a person. It leans on existing criminal offences committed by one person, a third party accused, against the other person, in this case the pregnant woman, to be established before an accused could be found guilty. These offences cannot be committed by a victim against themselves. These offences are being introduced only to address the criminal behaviour of a third party that causes the loss of a fetus of a woman and seeks to better support women who are offended against in this way.

The member for Newtown sought clarification as to why the bill is necessary, as this behaviour is already captured under the definition of grievous bodily harm. Unfortunately, there have been several tragic cases involving pregnant women losing their unborn child as a result of the criminal actions of third parties. Those distressing incidents have led to increased community interest in whether the criminal law in New South Wales gives adequate recognition to circumstances where a third-party criminal act causes the loss of a fetus. While destruction of a fetus is captured by the definition of grievous bodily harm, there is currently no standalone offence of causing the loss of an unborn child or a fetus. Creating these new criminal offences will expressly recognise the loss of a fetus as a unique injury and loss for the pregnant woman and other family members. The Government's proposed suite of reforms will better acknowledge the heartbreak suffered by families and punish offenders appropriately.

The member for Charlestown and the member for Newtown expressed concern that the bill undermines the born alive rule and creates fetal personhood. It does not. Under the common law, an infant is not recognised as an independent legal person until the infant is born alive—that is, has completely left its mother's body and shown evidence of independent life. That applies in all Australian jurisdictions and is also the case in Commonwealth jurisdictions like Canada, New Zealand and the United Kingdom. Evidence of life may include a heartbeat after delivery or evidence of a child having breathed independently, including where the child's breathing is assisted by mechanical respiration. That is called the "born alive" rule. The drafting of schedule 1 to the bill has been carefully formulated to maintain the born alive rule while appropriately criminalising very serious acts to ensure that offences against a pregnant woman resulting in the loss of her fetus can be properly recognised in criminal charges.

The common law born alive rule, reflected in section 20 of the Crimes Act 1900, ascribes legal personhood once a person is born alive and surviving independently. That means that a fetus is not recognised under New South Wales law as a legal person and therefore cannot be an individual victim of a crime. The proposed section 54A offence in the bill maintains the born alive rule by creating the new offences as a specific factual matrix of injury to the pregnant woman as the primary victim. The offence recognises the unique and grave harm caused by the loss to the pregnant woman as a result of an offender's actions. Section 54B is novel in its approach, but it does not make the fetus the primary victim. The loss of the fetus is framed in a causational way as a result of the unlawful killing of a pregnant woman. That is because the section 54B offence can only be charged alongside a homicide offence pertaining to the unlawful death of a pregnant woman, recognising that the fetus is inextricably linked to the pregnant woman.

I note the concerns raised by members in relation to the offences impliedly undermining the born alive rule. I reassure them that the drafting of the bill has been carefully developed in consultation with legal stakeholders so that it will not undermine the born alive rule and consequently will not bring about fetal personhood. The member for Charlestown asked about the rationale behind the fact that the new offences will only apply to third-party criminal acts causing the loss of a fetus of 20 weeks' gestation or more or 400 grams in weight. The decision was not made by reference to the Abortion Law Reform Act 2019 because the bill is not related to the Abortion Law Reform Act 2019 in any way. The bill applies to a very different set of circumstances. Instead, this requirement has precedent in New South Wales law as it reflects existing thresholds in the Births, Deaths and Marriages Registration Act 1995.

As noted by the member for Charlestown, 20 weeks is the time at which the loss of a fetus without a criminal act is considered a stillbirth rather than a miscarriage. Certain rights then apply regarding the issue of a birth certificate under the Births, Deaths and Marriages Registration Act 1995. Section 4 of that Act also defines death to exclude a stillbirth—that is, death can only occur at law and must only be registered after a child has been born alive. Should there be any doubt about whether the prosecution can establish the gestational age of the fetus, or where the primary victim does not want the loss of a fetus to be the main focus of a charge, the prosecution may still proceed under the existing grievous bodily harm offences. Under the bill, harm to or destruction of a fetus of less than 20 weeks' gestation—or of less than 400 grams if the period of gestation could not be established—would continue to be considered grievous bodily harm to the child's mother only.

I note concerns raised in the debate in relation to victim impact statements and whether an accused person's family, in particular in proceedings for a domestic violence offence, could provide such a statement. Schedule 2 to the bill amends the Crimes (Sentencing Procedure) Act 1999 to allow a person who was a member of the primary victim's immediate family at the time the offence was committed to provide a victim impact statement to the court in relation to the harm caused by the loss of the fetus. Section 26 of the Crimes (Sentencing Procedure) Act 1999 strictly defines "a member of the primary victim's immediate family". Victim impact statements are tendered or adduced by the Crown as part of its case.

The Crown ultimately retains control over that process, in consultation with the victim. That is already an important safeguard. In the example, an accused person's family could only provide a victim impact statement if the prosecutor is satisfied that the person "is a member of the victim’s extended family or culturally recognised family to whom the victim is or was close" or "is a person with whom the victim had a close relationship analogous to a family relationship, or whom the victim considered to be family." It is important that the sentencing process does not cause distress to a victim and that their connections or relationships with other people closely informs it. In conclusion, the bill will strengthen the law in New South Wales by better recognising the loss of an unborn child caused by a third-party criminal act as well as the harm and heartbreak caused to expectant parents and families. I commend the bill to the House.

TEMPORARY SPEAKER (Mr Greg Piper):

The question is that this bill be now read a second time.

Motion agreed to.

Third Reading

Mr MARK SPEAKMAN:

I move:

That this bill be now read a third time.

Motion agreed to.