Crimes Legislation Amendment (Loss of Foetus) Bill 2021 Introduced in NSW

Friday 26 November 2021 @ 1.49 p.m. | Legal Research

On 19 November 2021, the Crimes Legislation Amendment (Loss of Foetus) Bill 2021 (NSW) (‘the Bill’) was passed by the NSW Parliament. The Bill was initially introduced by Minister for Prevention of Domestic and Sexual Violence Mark Speakman (‘the Minister’) on 10 November 2021. The Bill is yet to receive the Royal Assent.

The Bill’s aim is to create new offences in response to the situation where a foetus is lost as a result of a third party criminal act. The Minister commented in his second reading speech that:

“[t]he loss of a foetus in all circumstances is harrowing, and to lose a foetus as a result of another person’s criminal offending is profoundly distressing for parents, victims, families and the wider community”.

Currently, the law recognises this loss as grievous bodily harm to the mother. However, this is without recognition of the unique harm this loss may cause, and without the guarantee of any higher penalty. Thus, this Bill seeks to implement laws which acknowledge the loss as a distinct harm which may attract a higher penalty in addition to the penalty for the criminal act which caused the loss.

Zoe's Law: Past attempts to pass this legislation

Similar legislation, given the name “Zoe’s Law”, has been introduced in NSW several times by Private Members, but all versions thus far have failed. An ABC News article noted that the proposed legislation has faced controversy from groups arguing that it could weaken abortion rights.

The Minister addressed these concerns in his second reading speech, stating that the current Bill “does not in any way affect a woman’s ability to obtain a lawful abortion under existing New South Wales legislation”, furthermore, the Bill does not intend to displace the “born alive” rule. This rule deems that legal personhood only applies to an infant once it has been born independently of its mother and has taken a breath.

The Minister noted that in the development of the Bill, there were submissions considered from various stakeholders, including advocacy, not-for-profit, and medical organisations, legal bodies, political parties, religious leaders, and individuals. These submissions contained diverse views, some of which expressed the viewpoint that punishments for causing the loss of a foetus should be harsher, and some of which expressed the view that reform was not needed at all. This Bill endeavours to strike the right balance.

Provisions of the Bill: Two new offences 

The Bill seeks to add two new offences to the Crimes Act 1900 (NSW) through the proposed sections 54A and 54B.

The proposed section 54A, contains what would be a new offence of “causing the loss of a foetus”. Under this offence, if a grievous bodily harm offence is proven, and that offence also resulted in the “loss of a foetus of over 20 gestational weeks, or a weight of 400 grams”, there may be an additional penalty of three years imprisonment.

The Minister noted that to attract this extra penalty, it is not necessary that the defendant was aware of a pregnancy. The provision has been drafted this way so that the law applies to dangerous drivers, who would generally be unaware that the victim of their dangerous driving was pregnant.

The proposed section 54B would introduce a new offence, that the Minister explains will:

“address the circumstances where … a pregnant woman has died and a foetus has also been lost as a result of criminal offending”.

This offence may only be charged where a homicide offence – including murder, manslaughter, or dangerous driving occasioning death – is proven first. Under section 54B, the offence would then carry an additional maximum penalty of three years’ imprisonment.

The Minister emphasised that because these new offences could only be charged when an offence against the “primary victim” has been proven, the proposed legislation does not attempt to create a situation where the unborn child is prioritised before its mother.

Further amendments proposed by the Bill 

The Bill also proposes to make several additional amendments to various Acts. The Minister explain these in his second reading speech to include:

  • an amendment to the Criminal Procedure Act 1986 (NSW) ensuring, but not mandating, that “the name of an unborn child can be included within the particulars of a criminal charge”;
  • an amendment to the Crimes (Sentencing Procedure) Act 1986 (NSW) allowing “close family members of a “primary victim” who has lost a foetus … to also give a victim impact statement”. This is in contrast to the current law which only allows the primary victim to make such a statement and have it be considered in court; and
  • an amendment to the Motor Accident Insurance Act 2017 (NSW) providing that “statutory benefits are payable for any funeral expenses incurred as a result of the loss of a foetus in a motor accident”.

These reforms seek to address the “very specific gap” in the current law, being the lack of a mechanism to deal with the unique harm caused by the loss of a foetus due to a third party’s criminal behaviour. The Minister further comments that:

“[t]his Bill strikes the right balance, by recognising and implementing changes that acknowledge the gravity of the loss of a foetus, without abrogating the born alive rule, or conflicting with the rights of the pregnant woman”.  

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Crimes Legislation Amendment (Loss of Foetus) Bill 2021 (NSW) and additional explanatory materials available from TimeBase's LawOne service

‘Zoe’s Law bill introduced to NSW Parliament to punish crimes that cause loss of unborn foetus’ (Ruby Cornish, ABC News, 10 November 2021)

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