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Legislative Council - Fifty-Fourth Parliament, First Session (54-1)
2018-07-24 Daily Xml
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Criminal Law Consolidation (Children and Vulnerable Adults) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 21 June 2018.)

The Hon. K.J. MAHER (Leader of the Opposition) (17:10): I rise today to indicate Labor's support for the Criminal Law Consolidation (Children and Vulnerable Adults) Amendment Bill 2018. The bill makes amendments to criminal neglect in section 14 of the Criminal Law Consolidation Act 1935 to remedy past problems regarding the prosecution of offenders for the criminal neglect offence.

It is worth noting that this bill is the same as the bill that was introduced by the Labor government during the last parliament, and we welcome the Liberal government reintroducing this Labor initiative. The Attorney-General, in her second reading explanation, asserted that this bill will address problems experienced by police and the Director of Public Prosecutions arising from the definition of 'serious harm' in the current legislation as it applies to children who are the victims of the offending. Section 14 of the Criminal Law Consolidation Act 1935 currently defines 'serious harm' as:

(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;

I understand that the limited definition of serious harm has proved problematic in establishing the offence. In practice, this has meant instances of serious neglect or serious harm have been unable to be prosecuted in a way that holds a parent or carer responsible for the maltreatment and harm caused to a child. The bill looks to address this gap by replacing the 'serious harm' provision with 'harm', which would improve the chances of successful prosecution of neglectful and abusive parents or carers. For example, where a child has healed rapidly from serious trauma, such as a broken arm or leg, prosecution of the offender has been difficult to occur in a way that reflects the true harm done to the child.

The bill also proposes to delete the word 'unlawful' from section 14. I am advised that this has the effect of extending the offence of criminal neglect so it will no longer be limited to death and serious harm resulting from an unlawful act but will now apply to death or any harm resulting from such an act. The bill also proposes a replacement to section 14(3)(a) to allow offences referred to in this bill to be procedurally easier to prosecute and to establish harm was caused without needing to establish that the defendant was or ought to have been aware that there was an appreciable risk that harm would be caused to the victim. With those words, I once again indicate Labor's support for what was once a Labor bill.

The Hon. D.G.E. HOOD (17:13): I rise to speak in support of this important bill, which was developed in consultation with our police force, the Director of Public Prosecutions and justice and child protection agencies in an endeavour to protect both children and vulnerable adults from harm and neglect through addressing shortfalls in current legislation.

As members would be aware, it is identical to the bill that was introduced last year by the former government and supported by the then opposition (now government), which unfortunately lapsed due to the dissolution of the previous parliament. I have always been strongly in favour of the proposed measures and I was therefore hopeful that it would receive swift passage at that time. Nevertheless, I am now thankful that the Marshall Liberal government is prioritising its reintroduction in the best interests of all South Australians.

This bill amends the offence of criminal neglect in section 14 of the Criminal Law Consolidation Act, which attributes criminal liability to carers of children under the age of 16 and people aged 16 or over who are significantly impaired through physical disability, cognitive impairment, illness or infirmity, at whose hands the child or adult dies or is seriously harmed as a result of an unlawful act. The proposed changes before us are designed to better capture behaviour that is considered neglectful and which can prove difficult to prosecute if it is not deemed to constitute serious harm as per the current definition.

It has been determined that one of the primary reasons this issue must be addressed is the fact that children have a tendency to recover from many forms of physical injury or maltreatment without perceivable long-lasting or permanent injury, in some cases, whereas the same trauma suffered by adults is generally likely to have more severe consequences, I am told. Certain injuries that would amount to serious harm when sustained by an adult may therefore not give rise to the same result when sustained by a child. The term 'serious harm' will be substituted with the word 'harm' to mitigate this concern and ensure injuries inflicted upon children, in particular, are capable of being captured, notwithstanding their greater capacity to heal.

The definition of harm is aptly broadened to include the physical or mental harm of the victim, including detriment to their physical, mental or emotional wellbeing or their development. This bill also amends section 14 of the act so that it applies to any act, whether it be lawful or unlawful, ensuring that guardians or carers can be prosecuted for cruelty or a sustained course of abuse or neglect, in addition to specific offences under the current law. This will effectively negate the need for clear evidence of a specific offence, which requirement is presently undermining the ability for punitive action to be taken against suspected abusive or neglectful caregivers and is ultimately impeding the adequate protection of both children and vulnerable adults.

The bill increases the penalty for neglect that causes harm to a maximum of 15 years imprisonment and increases the penalty for neglect that causes death to a maximum sentence of life imprisonment. It is indeed a shame that we have a need to consider strengthening these types of laws. However, as we have unfortunately witnessed in recent years, the instances of serious abuse and neglect concerning both children and vulnerable adults within our community are unfortunately a stark reality.

Members will recall what was referred to as the so-called house of horrors in Parafield Gardens, which was the 'home' to no less than 21 children, who suffered through starvation and malnutrition and were subject to the most depraved and incomprehensible torture whilst subsisting in abhorrent conditions. A few years later, in 2011, a young boy who was near death and weighed just eight kilograms, despite being four years of age, was discovered by police.

We are also never likely to forget the tragic case of little Chloe Valentine, who died of horrific injuries in 2012 from repeatedly falling off a motorcycle she was forced to ride by her mother and her mother's partner, who failed to seek timely medical attention when Chloe was knocked unconscious through these activities. More recently, just a few months ago, two young girls were found living in squalid conditions in our north-eastern suburbs, whilst their mother was passing in and out of consciousness, allegedly high on some sort of illicit substance.

Of course, revelations concerning the reprehensible treatment of elderly patients at the former Oakden Older Persons Mental Health Service were also extremely disturbing, with many families still coming to terms with what their loved ones were subjected to after being placed in the care of those whom they trusted implicitly.

Although these examples may represent the most extreme cases of harm and neglect, they are just a few that we, the public, have been made aware of, and there are, no doubt, countless other instances that remain unreported or undetected. This bill will deal with such matters. I believe and appreciate that most well-adjusted adults would feel an innate sense of responsibility to ensure that those dependent upon them are provided with the care and nurture they deserve. As legislators, however, we must be mindful of the small minority who fail to act in accordance with this fundamental expectation. Our laws must consequently convey that those found guilty of the mistreatment of children or vulnerable adults will be brought to account and will not escape some sort of correction.

The Marshall Liberal government trusts that the strengthening of our existing legislation will act as a deterrent to any unacceptable conduct. It is certainly my hope that this bill receives multipartisan support, as it appears to have done, given the contributions of others today. I support the bill and commend it to the council.

The Hon. R.I. LUCAS (Treasurer) (17:19): I thank the Hon. Mr Hood and the Hon. Mr Maher for their contributions to the second reading of the bill and for acknowledging, in their contributions, that this is a piece of legislation that is being supported by all members of this chamber, and indeed all members of parliament. I think this is indicative of many pieces of legislation that go through the houses of parliament and which perhaps do not attract much public attention because everyone supports them and there is little criticism directed towards what is hopefully going to be good law and good legislative change. On behalf of the Attorney-General and the government, I thank honourable members for their contributions and their indications of support for the bill.

Bill read a second time.

Committee Stage

Bill taken through committee without amendment.

Third Reading

The Hon. R.I. LUCAS (Treasurer) (17:22): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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