Criminal Law Consolidation (Children and Vulnerable Adults) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 28 September 2017.)

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (12:18): In this case, we, the opposition, indicate our support for the bill and so I will be brief. We may need to look at some amendments in another place. We have not had extensive consultation with others, and we appreciate that we may only have six sitting days left, so we are trying to hastily deal with as many of these bills as possible to accommodate the government's agenda. Where they are good, obviously we want to ensure that that is followed.

This was a bill introduced at the end of September by the Attorney to provide some extra protections under our law for vulnerable people, and largely that is children and vulnerable adults, as they are defined. The amendments relate to the offences of criminal liability being introduced for carers of children under 16 and vulnerable adults and the increasing of penalties. There is some clarification in relation to serious harm, which we think is necessary. We accept that as has been presented. In addition to that, there are some foreshadowed amendments, which I have had a brief look at this morning, and I thank the Attorney for bringing the matter to our attention. Essentially, they look in order. I will ask him to place on the record the reason for the amendments, and if there is any issue we undertake to let the government know before it is dealt with in the other place.

In relation to this bill, the government have outlined that there are a number of cases reported to police and the DPP over the last few years that have not been prosecuted or, indeed, have been withdrawn. The victims have not died, but, for example, they have had multiple broken legs, arms, ribs, etc., and healed quickly, particularly the children. Most of us understand the significance there—if you break a leg when you are 85, it is a pretty serious problem; when you break a leg when you are six, you might have a greenstick fracture and it may heal very quickly. The victims may miss out on being recognised through a prosecution process but, although they have had those serious injuries, they have not necessarily been protracted.

Child Protection Services in SA have also raised these concerns. We need to remedy it. We are here to assist in the swift passage of the legislation to do that. It is concerning to us that the government introduced this bill without any consultation, other than with its own advisers or departments; nevertheless, we accept that it needs to be remedied. If there are any matters that come to light, as I have indicated, we will follow them up between the houses.

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) (12:21): Can I thank the deputy leader for her indication of support, and I note that she will reserve her position if there is some matter of detail that needs to be worked out. I indicate my availability, obviously, to discuss matters further with her. Rather than consume a lot of time in the second reading or the committee stage, can I just indicate very briefly there is a raft of amendments, which have just been filed in my name, to this bill.

I mentioned this earlier in the day to the deputy leader, but I will just put it on the record. One of the issues has been the terminology 'serious harm'. That is a threshold question, as to whether the harm is serious or not. The way the bill was shaping up originally, it was going to have three categories basically: there would be death (which is obviously very serious), serious harm and harm. The problem is that the line between harm and serious harm, unlike the line between death and harm, is not clear.

Lawyers being what they are, there is ample opportunity for people to in effect litigate the substance of whether or not the particular injury the child is presenting with—children in particular—constitutes harm or serious harm, and that will have consequences for which charge applies. It may result in these absurd situations where somebody is charged with a particular offence and for technical reasons that offence is not proven because it is 'serious harm' rather than 'harm', and then the perversity of the circumstances results in their not being actually convicted of anything, which is just not acceptable.

I have discussed this with the Director of Public Prosecutions. He, for various reasons, I can inform the parliament, would still like to have the stratification between death, serious harm and harm. I disagree with him. I disagree with him because in my opinion it is far better to have simply 'death' as one set of problems, which are pretty clear—death is final and easily ascertainable as a matter of fact eventually—and to get rid of the stratification between 'harm' and 'serious harm', so that it is just 'harm'.

We put 'harm' in there with a maximum penalty of 15 years, and then we say to each judge who hears each case, 'You work it out. The worst you could possibly have in 'harm' warrants 15 years. You work out how badly you think this child was treated and you give it a number somewhere between zero and 15 years.' I know that there are some who say that does not give sufficient guidance to the courts, and I realise that is a risk. But there is also a risk in stratifying this into little subsets all the time—serious harm, harm, not very serious harm, very very serious harm and so on.

The amendments I have put in are to simplify the rules to make it very clear that if a child dies, that is one circumstance; if a child is harmed, that is another; and the prosecution would be able to lead evidence of the circumstances of the injuries, the nature of the injuries, and it would be a matter for the judge to determine what the appropriate response was having regard to the proven evidence. That is where those amendments are going. I think it is simpler, it is clearer and it will mean that we will be able to prosecute cases without having to worry about technical defences based on which tier of harm we are talking about.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 to 3 passed.

Clause 4.

The Hon. J.R. RAU: I move:

Amendment No 1 [DepPrem–1]—

Page 2, line 14—Delete ', ill treatment'

Amendment carried; clause passed.

Clause 5.

The Hon. J.R. RAU: I move:

Amendment No 2 [DepPrem–1]—

Page 3, lines 17 to 20 [clause 5, inserted section 13B(1), definition of unlawful] —

Delete the definition of unlawful

Amendment No 3 [DepPrem–1]—

Page 3, line 25 [clause 5, inserted section 13B(2)]—Delete 'subsections (3) and (4)' and substitute:

subsection (3)

Amendment No 4 [DepPrem–1]—

Page 3, line 28 [clause 5, inserted section 13B(2)(c)]—Delete paragraph (c)

Amendment No 5 [DepPrem–1]—

Page 3, line 33 to page 4, line 3 [clause 5, inserted section 13B(4)]—Delete inserted subsection (4)

Amendments carried; clause passed.

Clause 6.

The Hon. J.R. RAU: I move:

Amendment No 6 [DepPrem–1]—

Page 4, lines 8 to 11 [clause 6(1) and (2)]—Delete subclauses (1) and (2) and substitute:

(1) Section 14—delete 'serious harm' wherever occurring and substitute in each case:

harm

(2) Section 14—delete 'unlawful' wherever occurring

(2a) Section 14(1), penalty provision—delete the penalty provision and substitute:

Maximum penalty:

(a) where the victim dies—imprisonment for life; or

(b) in any other case—imprisonment for 15 years.

Amendment No 7 [DepPrem–1]—

Page 4, line 12 [clause 6(3)]—After 'delete subsections (3) and (4)' insert:

and substitute:

(3) If a defendant is charged with an offence against this section in respect of a course of conduct—

(a) it is not necessary to prove that the defendant was, or ought to have been, aware that there was an appreciable risk that harm would be caused to the victim by each act making up the course of conduct; and

(b) the information need not—

(i) allege particulars of each act with the degree of particularity that would be required if the act were charged as an offence under a different section of this or any other Act; or

(ii) identify particular acts or the occasions on which, places at which or order in which acts occurred; or

(iii) identify particular acts as causing, wholly or partly, particular harm to the child.

(4) A defendant may be charged with an offence against this section in respect of a course of conduct even if some of the acts making up the course of conduct occurred before the commencement of this section.

Amendments carried; clause passed.

Clause 7.

The Hon. J.R. RAU: I move:

Amendment No 8 [DepPrem–1]—

Page 4, line 15 to page 5, line 23 [clause 7, inserted section 14A]—Delete inserted section 14A

Amendment carried; clause passed.

Clause 8.

The Hon. J.R. RAU: I move:

Amendment No 9 [DepPrem–1]—

Page 5, line 32 to page 6, line 3—Delete clause 8

Clause negatived.

Remaining clause (9) and title passed.

Bill reported with amendment.

Third 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) (12:29): I move:

That this bill be now read a third time.

I would like to thank in particular the deputy leader for her assistance with that matter.

Bill read a third time and passed.