Date:1.33 AM WEDNESDAY, 18 March 1998
Member:Foss, Hon Peter
Page:775 / 1

It does not say what is unlawful, nor does it exhaustively say what is lawful. In fact, the Davidson case comes from a State that does not have a section 259 in its legislation. That was decided on the basis of the word "unlawful". The courts have interpreted what is unlawful in the light of what they believe is reasonable. That is how the Davidson test came about.

Members should not look to section 259 as being in some way definitive of sections 199, 200 and 201. They define the offence. The offence is not defined in section 259; in fact, it is a general defence for what would otherwise be an unlawful assault, grievous bodily harm or manslaughter. It enables doctors to carry out serious medical surgery. A person going into heart surgery might be told he has only a one per cent chance of surviving. The doctor is about to open the body, remove an important part and try to replace it with another part from someone else's body and there is a one per cent chance of survival. If the patient dies, the doctor has caused that death. Why is he not guilty of at least manslaughter, if not murder? He is not because of the provisions of section 259, which override the general rule that one cannot consent to serious assaults or assaults causing bodily harm.

Members should look at the law as it currently stands. It envisages that there will be circumstances under which it will be necessary to terminate the life of an unborn child. It provides that it is only in those cases where it is unlawful that there will be a specific offence.

Who will decide this question? Do we have a doctor, a judge or a tribunal? We already have such a tribunal; that is, the woman. One of the important issues is who will be most concerned in this decision. Who will make the most serious decision? I cannot think of anyone more intimately able to weigh up the matters of relevance and who will live with it forever if they get it wrong. Doctors have a very important role to play, but members should ask a doctor to remember the operations he performed last year or a lawyer to remember the cases he handled last year. They are professionals and they will do their job, but do not expect them to remember whether or not they did a good job.

The woman will live with her decision for the rest of her life. If one believes in a life hereafter, she will live with it even longer. Who can better weigh up the truth of what is being said? Do we ask a tribunal to make decisions about whether the appropriate factors are being properly stated by the person or whether they are making the facts fit within the terms of the law or what is seen to be the law? There is no escaping the truth in that woman's mind or body; there is no escaping her motives. She does not escape that when she makes the decision or after; she never escapes it in her whole life. If members want to find an appropriate body to make a decision, that body is the woman's body.

I suppose I have put it differently from other members, but ultimately we come to the question of whether it is appropriate that we visit this moral decision with criminal consequences.

Nobody would suggest that section 200 should remain. That section imposes a criminal penalty on the woman. How can we suggest that for that particular moral decision? There may be some argument so far as the doctor and the person who supplies the mechanisms are concerned, but for the woman there cannot be any such suggestion. I have not heard any argument put to the Parliament over the days of this debate which I would see as supporting section 200 of the Criminal Code. It is not as if the criminal law is totally escaped. People are saying that we must take abortion out of the Criminal Code. We will never take abortion out of the Criminal Code because the law relating to manslaughter and grievous bodily harm remains there. It is not as if we have said that the normal principles of law do not apply to abortion - they certainly do. We are saying that we do not apply a particular sanction to abortion.
Much has been said about life beginning at conception. I do not believe that life begins at conception. I believe that the possibility of a living human being begins at conception. At some stage - the word people used to use is quickens - it becomes some perception of that child in the womb but at that stage it still does not have the reality of surviving outside the womb. I do not think that in the end that is the relevant point. We have to see what society should be doing for women who find themselves in that traumatic situation of having to make decisions about that child within them. It is not as if we are getting large numbers of third trimester abortions. If we put some of the qualifications on it that I have heard mooted in the Press regarding the number of doctors women would have to see and the amount of time they would have to spend before they made a decision, they could very well end up in the third trimester before they could do it. It is not as if we can demonstrate massive abuse of the process in the way it is being carried out. If we assumed that the law did not provide a special penalty, what abuses could we currently point to that need to be addressed? Despite the fact that some would argue that people are operating outside the law, I cannot see large numbers of abuses. I do not believe they have been operating outside the law.

I was taken to task for mentioning that certain lawyers were Roman Catholic. I should just mention the context in which I did that. I had stated my view of the law. I believe it is a view of the law I am entitled to hold; that is, I believe that the Davidson test applies in Western Australia because it has been applied in Victoria to a lesser provision, which is almost identical to section 199. Victoria does not have section 259, so it was perfectly legitimate for me to hold the view that in Western Australia the Davidson test appropriately applies. I believe that the test suggested by Judge Levine could also be argued to apply in Western Australia until such time as a decision is made