Criminal Law Consolidation (Children and Vulnerable Adults) Amendment Bill

Second Reading

The Hon. K.J. MAHER (Minister for Employment, Minister for Aboriginal Affairs and Reconciliation, Minister for Manufacturing and Innovation, Minister for Automotive Transformation, Minister for Science and Information Economy) (00:15): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation and explanation of clauses inserted in Hansard without my reading it.

Leave granted.

Today I introduce a Bill to amend the Criminal Law Consolidation Act 1935 (the Act) to continue the Government's efforts to ensure that children are comprehensively protected under the law.

After introducing the Bill in the House of Assembly, the Government consulted on its provisions with justice and child protection agencies in the public and private sector. Following that consultation, the Government moved significant amendments to the Bill in that House.

Section 14 of the Act creates an offence of criminal neglect 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.

For the purposes of the section 14 offence of criminal neglect, 'serious harm' 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.

The Bill I am introducing addresses shortcomings experienced in practice arising from 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 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 definition of 'serious harm' for the purposes of the offence created by section 14 does not cover many serious injuries to children and is 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.

People who harm children should not escape liability in this way, and these anomalies should be corrected. The Government proposes to amend the Act to ensure that the offence in section 14 of the Act is capable of extending to injuries inflicted on children notwithstanding their greater capacity to heal.

The shortcomings of the definition of 'serious harm' have also highlighted that the present law is such that an abusive parent or carer 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 and carers.

The Bill amends section 14 of the Act so that it applies to any act, whether lawful or unlawful, and where the relevant acts, omissions or course of conduct have caused either death or harm to a child or vulnerable adult. This is achieved by removing references to unlawful acts and serious harm from section 14 and associated definitions of those terms.

Harm is defined broadly for the purposes of the expanded section 14 offence to mean physical or mental harm and includes detriment caused to the physical, mental or emotional wellbeing or development of a child or vulnerable adult (whether temporary or permanent).

The penalties for the expanded section 14 offence have been increased so that a person convicted of causing death to a child or vulnerable adult would face a maximum sentence of life imprisonment. This reflects the penalties in the Act for murder, manslaughter and aggravated causing death by use of a motor vehicle. A person convicted under section 14 of causing harm to a child or vulnerable adult would face a maximum sentence of 15 years imprisonment. This places the maximum penalty at around the mid-point of the spectrum of penalties for other analogous harm-based offences in the Act. For example, aggravated recklessly causing serious harm, aggravated intentionally causing serious harm and aggravated serious harm by use of a motor vehicle carry maximum sentences of 19 years, 25 years and life imprisonment, respectively. Aggravated recklessly causing harm, aggravated intentionally causing harm and aggravated harm by use of a motor vehicle carry maximum sentences of 7, 13 and 7 years imprisonment, respectively.

In each case under the expanded section 14, whether the offender caused death or harm, it would be for the sentencing Court to determine the appropriate sentence on a conviction having regard to all the circumstances of the offence, victim and offender. As a result, it is no longer necessary to attempt to define 'serious harm' in a way that reflects the different physiological responses to injury of children and adults as the Court should take into account the severity, duration and impact of the injuries inflicted on the child or vulnerable adult when sentencing the offender.

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.

6—Amendment of section 14—Criminal neglect

This clause extends the offence of criminal neglect so that it will no longer be limited to death and serious harm resulting from an unlawful act but will now apply to death or harm resulting from any act. The provision also increases the penalty for the offence, deletes some interpretative provisions that are now being moved to proposed new section 13B and inserts new provisions relating to an offence consisting of a course of conduct.

7—Insertion of section 14A

This clause inserts a new section as follows:

14A—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—Repeal of section 30

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

Debate adjourned on motion of Hon. J.S.L. Dawkins.

At 00:16 the council adjourned until Thursday 16 November 2017 at 11:30.