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NSW CRIMES AMENDMENT (Zoe's Law) BILL 2013 (No 2)

 

This "foetal personhood" Bill aimed to give the rights of a living person to an unborn foetus, with potentially disastrous results for women throughout Australia, and especially in NSW.

 

Similar laws, also with apparently innocuous wording, have been used to criminalise women in several countries, where women have been imprisoned for crimes against their foetus, some for miscarriages suspected of being attempted abortions.

 

NSW women do NOT support this type of law and in particular do not support this Bill, which is also opposed by the NSW Bar Association, the Australian Medical Association, the Royal Australian and New Zealand College of Gynaecologists and Obstetricians, the National Foundation of Australian Women, Women's Electoral Lobby, Family Planning NSW, Children By Choice and many others, as well as WAAC.

 

In October 2013, the NSW Legislative Assembly voted in favour of this Bill 63 -26, leaving the fate of women's reproductive rights in NSW to the consciences of the Members of the Legislative Council.

 

While many MLCs indicated they support women's rights and stated they would vote "NO", if the Bill came before them, others remained undecided about why they need to oppose foetal personhood legislation!

On her own website, Greens MLC Dr Mehreen Faruqi (who opposed the Bill) provided this description:

What is Zoe’s Law (No.2)?

The Crimes Amendment (Zoe’s Law) Bill 2013 (No 2) is a Private Member’s Bill introduced in the Legislative Assembly on 29 August 2013 by Liberal MP Christopher Spence.

It is a repackaged version of a Bill introduced by Reverend the Hon Fred Nile in the NSW Legislative Council earlier this year, seeking to grant legal personhood to a foetus.

Zoe’s Law proposes to amend the Crimes Act 1900 to recognise the separate existence of the foetus of a pregnant woman that is of at least 20 weeks’ gestation or has a body mass of 400 grams where the length of the gestation cannot be proven, thereby seeking to redefine what it is to be a “person” in NSW for grievous bodily harm (GBH) offences. This conceptual change to the law is both dangerous and unnecessary.

There is already adequate provision in the justice system to respond appropriately to criminal incidents involving the death of an unborn child. An offence of this nature causing destruction of a foetus already carries a maximum prison sentence of 25 years. The same conclusion was reached by The Honourable Michael Campbell QC when he was asked by the then NSW Government to review the Crimes Act 1900 to assess current provisions.

On 6 September 2013, the NSW Bar Association, in response to the proposed legislation argues that there are “legitimate concerns” about the broader implications of the Bill. Once a definition of a foetus as a living person for the purpose of this Bill is adopted, “it would be difficult to resist its adoption in respect of other New South Wales criminal laws”.

On 10 September 2013, the AMA wrote to NSW Health Minister Jillian Skinner with their concerns that the Bill could have unintended impacts on doctors in areas from genetics to obstetrics with unintended consequences and flow-on effects in other areas of medicine.

In October, MDA National, one of Australia’s leading providers of medical indemnity insurance and medico-legal services, urged the Parliament to oppose the bill, citing the uncertainty that could affect the willingness of medical practitioners to be involved in the provision of medical care to pregnant women. This would in turn, adversely affect the standard of medical treatment and care available to pregnant women.

The unfortunate truth is that this Bill is just the latest in a sustained attack on women’s rights.

On 31 October 2013, Liberal MP Mark Speakman, Member for Cronulla, moved a further amendment to Mr Spence’s Bill purporting to put beyond doubt that the Bill won’t criminalise anything that isn’t presently criminal and won’t increase penalties which a court would have otherwise imposed anyway. Abortion, however, is presently criminal.

Spence has repeatedly argued that the exceptions provided in the Bill, concerning anything done in the course of a medical procedure or with the consent of the woman, guarantee that his amendment would not infringe upon a woman’s right to terminate a pregnancy. However, the exceptions do not meaningfully buffer against the overarching conceptual change represented by the Bill.

Moreover, it is outrageous that a woman’s legal right to terminate her pregnancy could be threatened by the law telling her that she is at risk of criminal liability until she can prove that she falls into a narrow exception. Zoe’s Law further pushes lawful termination of pregnancies to the fringes of legal debate, where it shamefully already lies as an exception to sections 82-84 of the NSW Crimes Act.

While the Greens unequivocally oppose this bill and will be voting as a block on party and principle to against it, Labor and Coalition MPs have been granted a conscience vote. Fred Nile is supportive of the new bill, and is expected to introduce it into the Upper House, should it pass the Legislative Assembly.

As MPs debate this Bill in the coming weeks, a grassroots movement is building in  opposition to this unnecessary piece of legislation and its broader implications for women’s right to choose and have control over their own bodies.

The principle problems with the bill are as follows:

The bill’s statement that a foetus of 20 weeks or more is to be regarded as a living person is significant extension of the existing NSW law in this area (Proposed s 8A(2)(a)). The Births, Deaths, and Marriages Registration Act contains no such statement, rather providing that a stillbirth of at least 20 weeks is to be considered a stillborn child for the purposes of registration.

a. This is unrelated to medical understandings of viability as an independent life. This figure posited is around 23-26 weeks.

b. Similar provisions legislated in other jurisdictions have resulted in mothers being prosecuted where it is determined they have acted contrary to the interests of the “living person” they are carrying.

The bill creates an entirely separate criminal offence that applies to abortion, alongside ss 82-84 of the Crimes Act, which relate to the other abortion offences.

a. It says the act of destroying a foetus does, on its face, amount to the criminal offence of grievous bodily harm, such that doctors wishing to perform a termination and women wishing to undergo one face the threat of criminal liability unless they can be satisfied that they fall within one of the exceptions.

b. This is problematic for the same reasons that the Greens oppose the existing sections 82-84 of the Crimes Act: The bill puts onus on women and their doctors to establish they are covered by a listed exception; undergoing or performing an abortion is criminal until the exception can be proved, which means the threat of criminality is ever present and pushes abortions to the margin of mainstream medical practice.

The bill’s proposed exceptions regarding abortion are fairly clear, though even the most clearly drafted legislation can be the subject of argument and debate down the track as cases emerge that were not thought of at the time of drafting.

a. eg. the reference to “Medical procedure” is not all encompassing, and may be disputed for medical treatment which occurs in the home, or without a medical practitioner present.

i. “Medical procedure” is not currently defined within the Crimes Act. It is only referred to once, in the s 4(a) inserted in 2005 (see above).

b. eg. the reference to “anything done by, or with consent of the pregnant woman” – What if a termination is performed for good reason on a woman who is mentally ill and doesn’t have the capacity to provide valid consent at the time?

The bill seeks to criminalise harm to a foetus under grievous bodily harm offences of which a living person may be subject. Of these offences, ss 33(1),35, 52A(3),52A(4),and 54,may emerge as possible avenues for prosecution of women.

The courts have found many injuries to be considered grievous bodily harm, including causing a person to develop significant damage to internal organs, bone fractures requiring surgery or impairment, permanent loss of vision, facial disfigurement, and the transmission of serious diseases. All listed injuries have the potential to occur during pregnancy without the knowledge or consent of the mother. Again, related provisions in other jurisdictions have resulted in mothers being prosecuted against when it is determined they have acted contrarily to the interests to the “living person” they are carrying.

The bill proposes removing the intrinsic legal link between the woman and her pregnancy from 20 weeks onwards.

The Campbell Review concluded that the best way for the law to respond to harm to a foetus without jeopardising the woman is as per current legislation – harm to the foetus is harm to the mother.

The bill principally responds to the alleged insufficient outcome of a case where the maximum possible sentence was not invoked due to the unique circumstances of the perpetrator.

The driver received a relatively light sentence of two years of three months’ imprisonment, with a nine-month non-parole period. However, the driver’s tragic circumstances including her mental health issues and history of drug addiction were factors considered by the judge in his sentencing. The maximum sentence for the offence (Crimes Act s 52A(3)(c)) is seven years imprisonment. Therefore it is arguably misleading to say that the current penalty for contravention of such a provision is “soft”.


The bill passed the lower house of the NSW parliament in November 2013, but languished in the upper house, with most of the members of the legislative council indicating they would reject it.

The bill was not introduced by the end of the parliament’s last sitting week of the year, so lapsed without being voted on.