Criminal Law Consolidation (Children and Vulnerable Adults) Amendment Bill

Introduction and First Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Industrial Relations, Minister for Child Protection Reform, Minister for the Public Sector, Minister for Consumer and Business Services, Minister for the City of Adelaide) (15:48): Obtained leave and introduced a bill for an act to amend the Criminal Law Consolidation Act 1935. Read a first time.

Second Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Industrial Relations, Minister for Child Protection Reform, Minister for the Public Sector, Minister for Consumer and Business Services, Minister for the City of Adelaide) (15:48): I move:

That this bill be now read a second time.

Today, I introduce a bill to amend the Criminal Law Consolidation Act 1935 to continue the government's efforts to ensure that children are comprehensively protected under the law. Once the bill has been introduced, the government will consult with interested persons on the bill. If feedback received during consultation means that changes are needed to the bill, I will move such amendments as may be necessary. I seek leave to have the remainder of the second reading explanation inserted in Hansard without my reading it.

Leave granted.

Section 14 of the Act creates an offence that attributes criminal liability to carers of children under 16 and vulnerable adults where the child or adult dies or is seriously harmed as a result of an unlawful act. The offence occurs where the accused had a duty of care to the victim but failed to protect the victim from harm that the accused should have anticipated. Section 23 of the Act creates the offence of causing serious harm to another, whether intentionally or recklessly.

For the purposes of the section 14 offence of criminal neglect of a child under 16 or vulnerable adult, 'serious harm'currently means—

(a) harm that endangers, or is likely to endanger, a person's life; or

(b) harm that consists of, or is likely to result in, loss of, or serious and protracted impairment of, a part of the body or a physical or mental function; or

(c) harm that consists of, or is likely to result in, serious disfigurement.

'Serious harm' under section 23 of the Act has a similar definition.

The Bill I am introducing addresses shortcomings in the definition of 'serious harm' as it applies to children who are the victims of the offending (i.e. children who are injured but not killed). Children generally have a superior ability to heal from injury compared to adults. Where the victim of an alleged offence under section 14 or section 23 is a child, it may therefore be difficult to establish the elements of the offence, particularly that the child has suffered 'serious harm' as defined.

The Government has been advised that major injuries that would amount to 'serious harm' when sustained by an adult may not have this result when sustained by a child. This is because, although suffering much pain and distress from serious injuries, children possess a natural ability to recover quickly and fully that adults do not possess. As a result, the definitions of 'serious harm' for the purposes of the offences created by sections 14 and 23 do not cover many serious injuries to children and are more apt to address serious injuries to adults. For example, a baby of 3 months of age who sustains multiple leg fractures or multiple serious injuries causing pain and suffering will, however, most likely recover quickly with no impact on his or her development because of the infant's capacity to repair and their young age. The injury is not likely to be considered a 'serious and protracted impairment'. People who inflict such injuries on children may therefore escape criminal prosecution. If an adult suffered the same injury, there would most likely be a permanent impairment as a result.

Parliament did not intend for people who harm children to escape liability in this way, and these anomalies should be corrected. The Government proposes to amend the Act to ensure that the offences in sections 14 and 23 of the Act are capable of extending to injuries inflicted on children notwithstanding their greater capacity to heal.

If passed by Parliament, the Bill would insert new section 13B in the Act and amend existing section 21. The new provisions would in part provide that in determining whether a child has suffered a protracted impairment of a part of the body or a physical or mental function, the impairment may be determined to be protracted even where the healing time of the impairment in a particular child is significantly shorter than a similar impairment in an adult. The determination is to be made having regard to all of the circumstances of the child, and in particular to their age and development.

The maximum penalty under section 14 for causing serious harm is increased in the Bill to 10 years. The current 5 year maximum penalty for that offence is too low. This increase reflects the fact that 'serious harm' could involve injuries as serious as permanent brain damage and also has the effect of aligning these penalties with the penalties under new section 14A.

The shortcomings of the definition of 'serious harm' have also highlighted that the present law is such that an abusive parent can only be prosecuted if there is either criminal neglect leading to death or serious harm or there is clear proof of an actual assault or a definite act giving rise to a real risk of harm or serious harm. There is no general offence of child abuse, cruelty or neglect as there is in some other jurisdictions, including the United Kingdom, New Zealand, Queensland and the Australian Capital Territory.

This means that in South Australia the situation must reach the point where there is clear proof of some specific offence, rather than proof of cruelty or a sustained course of abuse or neglect, before an abusive or neglectful parent or carer can be prosecuted. This arguably undermines the protection that the criminal law should extend to children and the ability of the State to punish abusive parents.

The Bill therefore includes new section 14A which creates a new offence of ill treatment of a child or vulnerable adult who dies or suffers harm and to whom the defendant had a duty of care. To be found guilty, it needs to be proven that the defendant was, or ought to have been, aware that there was an appreciable risk of harm to the victim by an act, omission or course of conduct of the defendant but the defendant failed to take steps that he or she could reasonably be expected to take to protect the victim from harm. The maximum penalties under section 14A are imprisonment for 15 years if the victim dies, imprisonment for 10 years if the victim suffers serious harm and imprisonment for 3 years in any other case.

The Government expects that the changes to the definition of 'serious harm' as regards children for the purposes of sections 14 and 23 of the Act, and the creation of a new offence of ill treatment, will have the effect of increasing the success rate of such prosecutions and deter such conduct.

The Bill is consistent with the Government's response to the Child Protection Systems Royal Commission to review 'the suite of legislation concerning child protection, to ensure that children are comprehensively protected under the law.' (Child Protection—A Fresh Start: Government of South Australia's response to the Child Protection Systems Royal Commission report: The life they deserve, p18).

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Criminal Law Consolidation Act 1935

4—Substitution of heading to Part 3 Division 1A

This clause makes a consequential amendment to a heading.

5—Insertion of section 13B

This clause inserts definitions for the purposes of the Division. In particular it should be noted that a reference to an act includes an omission or a course of conduct.

Proposed subsection (4) relates to the definition of serious harm and provides that an impairment suffered by a child may be determined to be 'protracted' for the purposes of the definition even where the healing time of the impairment in a particular child is significantly shorter than a similar impairment in an adult. The determination is to be made having regard to all of the circumstances of the child and, in particular, to their age and development.

6—Amendment of section 14—Criminal neglect

This clause increases the penalty for causing serious harm, corrects an error and deletes some interpretative provisions that are now being moved to proposed new section 13B.

7—Insertion of sections 14A and 14B

This clause inserts new sections as follows:

14A—Ill treatment

This proposed section creates a new offence of ill treatment of a child or vulnerable adult. The maximum penalty for the offence is imprisonment for 15 years if the ill treatment causes death, 10 years if it causes serious harm or 3 years if it causes harm.

14B—Failing to provide food etc in certain circumstances

The current section 30 is being moved into this Division (with minor changes for consistency of terminology).

8—Amendment of section 21—Interpretation

Proposed subsection (2) relates to the definition of serious harm in section 21 and provides that an impairment suffered by a child may be determined to be 'protracted' for the purposes of the definition even where the healing time of the impairment in a particular child is significantly shorter than a similar impairment in an adult. The determination is to be made having regard to all of the circumstances of the child and, in particular, to their age and development.

9—Repeal of section 30

This section is being relocated to Division 1A - see clause 7.

Debate adjourned on motion of Mr Treloar.