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- 25 June 2003
Manslaughter Law Review
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Page: 2128
Mr GIBSON: My question without notice is addressed to the Attorney General. What is the Government's response to the review into the law of manslaughter in New South Wales by Justice Finlay?
Mr DEBUS: I thank the honourable member for his question about a very serious matter. Last October I asked Justice Mervyn Finlay, a retired Supreme Court judge, to undertake a quite daunting task. I asked him to undertake a comprehensive study of the law of manslaughter and related offences in New South Wales. In particular, I asked him to look at the very distressing and difficult issues raised when a criminal act is perpetrated against the mother of an unborn child and that child dies as a consequence. The deficiencies of the law in New South Wales in this respect were brought into sharp relief by the ramming of the car containing Renee Shields, then seven months pregnant, and the subsequent stillbirth of her baby, Byron.
Mr SPEAKER: Order! I call the honourable member for Illawarra to order.
Mr DEBUS: I know that Justice Finlay received a heartfelt submission from Renee Shields. I know from my conversation this morning with her that she is relieved that Justice Finlay has taken her concerns very seriously and has made recommendations to address the gap in the law that her tragedy brought to light. She still endures great distress at the death of her child and the consequences of her ordeal. Although nothing can compensate her for her loss, her efforts on behalf of Byron have not been in vain. I know that members on both sides of this House have expressed great sympathy for her plight and I am encouraged to believe that Justice Finlay's recommendations will be welcomed by both sides of the House.
Justice Finlay has had a most challenging task. He has undertaken a study of this most complex area of the criminal law, one which law reform commissions take years to deliberate upon. I respectfully thank him for the care and thought he has brought to the report and his recommendations. His major recommendation is the creation of an offence for the killing of an unborn child. Such a recommendation would bring the law in New South Wales into line with jurisdictions around Australia. The details of that proposal, with the appropriate safeguards that Justice Finlay recommends, are set out in his report. He has consulted widely and, of course, the Government will consult further, in particular, with health authorities.
The Government is carefully considering the recommendations of the report. For example, we need certainty that any proposed legislation will give protection for any legitimate medical interventions. I make it clear from the outset that in investigating this offence there is no intention to unsettle the well-established common-law position on abortion in this State. That remains the position and the offence, as proposed by Justice Finlay, is designed to safeguard that position. Justice Finlay's report considers in detail the possibility of legislating for differential penalties for degrees or categories of manslaughter.
In summary, he has concluded that the range of criminality covered by the category of manslaughter is simply too diverse to be reduced to subcategories in the statute book. On one hand are the mother in the grip of post-natal depression who gases her child, a mercy killing, a suicide pact, an abused child who turns on his or her assailant, and the farm worker who accidentally discharges a gun and kills his mate. On the other hand, right up the scale, are acts of killing that fall just short of murder, in the heat of passion, in excessive self-defence and in the grip of delusion.
Justice Finlay has studied the law as it applies around Australia and, indeed, around the common law world, and has concluded that to codify the law of manslaughter would result in substantial injustice. The judge reports also that submissions from women's groups, prosecutors and the police all opposed a statutory scheme for manslaughter on the basis of the injustices that it would create. I thank the judge for the care and consideration that he has given to this quite difficult issue. I advise the House that next session I shall bring before the House legislation implementing the recommendations that Justice Finlay has made.
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