Criminal Law Consolidation (Children and Vulnerable Adults) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 7 June 2018.)

The Hon. J.A. DARLEY (15:51): This bill amends the Criminal Law Consolidation Act to better assist prosecutors to establish criminal neglect. Definitions will change to better define cognitive impairment and vulnerable adults, as well as outlining that criminal neglect can occur if there is an omission of an action, such as failing to provide food, clothing and accommodation.

The bill makes amendments to stipulate that criminal neglect can occur if harm is caused to children or vulnerable adults, rather than serious harm. I understand that this is to reflect the fact that there are cases where harm is inflicted on children which would be considered serious harm to an adult. However, because children have a greater capacity to heal it is often not considered to be serious harm, notwithstanding the same action was inflicted.

There are also changes to remove the requirement that criminal neglect can only be as a result of unlawful actions. The bill will outline that criminal neglect can occur as a result of actions, whether they are lawful or not. I am supportive of this bill and believe it is important for the parliament to make changes to the law where it becomes clear that there are deficiencies.

It is important that we protect those in our community who cannot protect themselves. If there are individuals who are neglectful of children or vulnerable adults, it is important that the law is there to support prosecutions to send a message that we as a community do not support those actions and there should be punishment for this sort of behaviour. With that, I support the bill.

The Hon. F. PANGALLO (15:52): I rise to speak in support of the Criminal Law Consolidation (Children and Vulnerable Adults) Amendment Bill 2018. The bill, of course, has been introduced into this parliament because the same bill lapsed in the Legislative Council upon the dissolution of the former parliament.

This is a vital piece of legislation as it addresses crucial gaps in the law to ensure that people who inflict serious injuries on children or vulnerable adults will not escape punishment. The bill amends the offence of criminal neglect in section 14 of the Criminal Law Consolidation Act 1935 to address difficulties experienced in the prosecution of offenders for that offence. It also creates a general offence of child neglect.

Currently, section 14 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 that person from harm that the accused should have foreseen.

This bill addresses the deficiencies experienced in practice by law enforcement officers and the DPP arising from the meaning of 'serious harm' as it applies to children who are the victims of the offending. The issues with the current legislation as it stands have made it difficult to establish the elements of the offence, particularly that the child has suffered serious harm as defined.

In reality, this has meant that, where a victim has suffered harm, for example, multiple broken bones, and healed quickly, as often occurs with children, it has been nearly impossible to establish that the victim had suffered serious harm. This has meant in practice that offenders have not been able to be prosecuted in a way that reflects the harm caused to children in particular.

The issues with serious harm have also highlighted that the current law operates in such a way 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 definitive 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.

The only relevant local offences are the offences in section 14 and the limited and rarely used minor indictable offence under section 30 of the Criminal Law Consolidation Act 1935, which this bill renumbers as section 14A of 'failing to provide a child or other vulnerable person with necessary food, clothing or shelter'.

This means that currently 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 undermines the protection that the criminal law should extend to children and other vulnerable persons and the ability to punish abusive parents and carers.

The bill amends section 14 of the Criminal Law Consolidation Act 1935 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 vulnerable child or adult. The threshold is now much lower by removing references to unlawful acts and substituting 'serious harm' with 'harm'.

These changes, along with associated penalties for the expanded section 14 being significantly increased, should result in more prosecutions and subsequent convictions. A person convicted of neglect causing death to a child or vulnerable adult now faces a maximum sentence of life imprisonment. I echo the words of Dr Jeremy Sammut that:

…childhood is fleeting. This time of life must be optimised for children's sake, and for society's good, because bad early experiences have deleterious, life-long consequences. Because today's child is tomorrow's citizen, modern nations place a premium on the care, education and socialisation of children. That adults have a duty to nurture and not damage, disturb or distress is a universal aspiration shared by all civilised peoples.

We must do better as individuals and as a society to nurture and care for our most vulnerable, from the young to the elderly.

Sadly, we all remember too clearly the sickening death of Chloe Valentine at the hands of her mother and her mother's partner and the subsequent coronial inquest into her death. Chloe's mother—and I use that term loosely—Ashlee Polkinghorne, and her low-life, scumbag partner, received just four years non-parole for manslaughter caused by criminal negligence for Chloe's death. They are due out of prison this year.

That innocent little four-year-old girl died from injuries caused by repeatedly being forced to ride a motorbike over several days. The disgusting pair even filmed Chloe's terror as she was repeatedly put on a 50-kilogram motorbike in the backyard of the family home at Ingle Farm in January 2012, and filmed crashing into objects. Chloe suffered severe injuries and was so swollen and bruised when taken to hospital that some other family members could not even recognise her.

The pair failed to call an ambulance when this defenceless little girl fell unconscious, and only sought medical help hours later when she had stopped breathing. They could not even be bothered to be at the hospital when Chloe died from her horrific injuries. What that little girl was forced to endure in her final hours in this world defies human decency.

During the inquest into Chloe's death, Coroner Mark Johns said that Polkinghorne had a selfish lifestyle that prioritised her own interests above Chloe's and had the child been removed from Polkinghorne's care she would probably be alive today. Before her tragic and unnecessary death, more than 20 notifications were made to Families SA from family and friends who were concerned for the girl's welfare. Many of those concerns were largely ignored by the agency.

Every child in South Australia, no matter what their family background, deserves the best start in life and a loving and nurturing home to grow up in. We should always be aiming for the best level of care for our children and not what is merely adequate. At the other end of the age ledger and the need to address crucial gaps in the law to ensure that people who inflict serious injuries on children or vulnerable adults face the full wrath of the law, the Oakden scandal is another example of a permanent stain on our community and how we care for the older members of our community.

Protecting children and vulnerable adults is a priority for all of us. The changes in the law with this bill should be a salient reminder that it will now be easier to prosecute and convict deadbeat parents and carers.

Debate adjourned on motion of Hon. E.S. Bourke.