Criminal Law Consolidation (Children and Vulnerable Adults) Amendment Bill

Second Reading

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General) (15:52): Today, the government reintroduces into parliament the Criminal Law Consolidation (Children and Vulnerable Adults) Amendment Bill, a bill that lapsed on the dissolution of the last parliament, but one which the then opposition supported and attempted to swiftly move through the houses. Disappointingly, at the end of 2017 other legislative priorities were placed above those of children and vulnerable adults by the former government. Much like the failings of the former government with children in their state care, we saw a failure to ensure that this legislation was made a priority and passed urgently.

Members might find familiar the remarks I will now make about the bill. They are drawn from remarks made in 2017 by the former government. At the risk of being accused of plagiarism by those opposite, I adopt those remarks to indicate this government's enthusiasm for the reforms that the former government got right on a policy level, although they did not give it the priority that the children deserve.

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. Members will remember the shocking images of the 'house of horrors', for example, as probably one of the worst cases of child neglect and consequential abuse of a whole household of children.

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 the victim from harm that the accused should have anticipated. Importantly, the bill addresses the shortcomings experienced in practice by the police and the Director of Public Prosecutions arising from the definition of 'serious harm' as it applies to children who are the victims of the offending. These shortcomings have made it difficult to establish elements of the offence, particularly that the child has suffered 'serious harm' as defined.

In practice, this has meant that where a victim has suffered harm, perhaps multiple broken bones or other trauma, and healed quickly, the offender has not been able to be prosecuted in a way that reflects the true harm caused. The seriousness of these actions, and any harm against a child or vulnerable adult, should not be diminished, with the full force of the legal system able to punish such behaviour. For the purpose of the section 14 offence of criminal neglect, '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.

Children generally have a superior ability to heal from injury compared with adults. Where the victim of an alleged offence under section 14 is a child, it may therefore be difficult to establish elements of the offence, particularly that the child has suffered 'serious harm' as defined as a 'serious and protracted impairment'. 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.

I hope it assists members if I use the example of myself. At two years of age, I was run over by a truck. Obviously, I survived; should I be hit by the same truck today, there is every likelihood that I would not. Bones are more brittle, obviously, and do not have the flexibility of those of a two year old. Fortunately, as in that example, children do recover, although it was quite a serious accident and, I think it is fair to say, harm was caused. I was lucky enough to be hit at that age when I had the capacity to recover. Some might think more's the pity, but nevertheless I am here.

Consequently, 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 three 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 bill ensures that the offence in section 14 of the Criminal Law Consolidation 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.

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

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 other vulnerable persons and the ability of the state to punish abusive parents or carers.

The bill amends section 14 of the Criminal Law Consolidation 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 significantly increased. It is appropriate that the maximum penalties on a conviction are substantial to reflect the gravity of offending against children and vulnerable adults. A person convicted of neglect causing death to a child or vulnerable adult would face a maximum sentence of life imprisonment. This reflects the penalties in the Criminal Law Consolidation Act for murder, manslaughter and aggravated causing death by use of a motor vehicle.

A person convicted under section 14 of neglect 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 Criminal Law Consolidation 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 seven, 13 and seven years' imprisonment respectively. I will come back and clarify if that last number is correct, but we will leave it as it is at the moment.

In each case under the expanded section 14 offence, 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 can take into account, when sentencing the offender, the severity, duration and impact of the injuries inflicted on the child or vulnerable adult and the lawfulness or unlawfulness of the underlying acts or omissions.

This government is one which places the safety of children and those most vulnerable in our society at the forefront of its agenda. That is why this important legislation is a priority for the Marshall government as it ensures that those who harm others are appropriately and quickly prosecuted for their actions.

I think members are familiar with the Oakden inquiry and the exposure of the vulnerability, in that case, of our mature-age mental health adults in our community. This only adds to the urgency for us to ensure that we protect our vulnerable adults. If I were to use any other example outside of institutional care, obviously, the community is becoming more and more aware and enlightened about the opportunity for neglect and abuse of our frail aged members of the community.

Whilst it might be uncomfortable or inconvenient to be left outside in the rain, for example, if you are in a wheelchair, if you are mature-age, if you are frail, if you are not ambulant and if you are left out in the rain with a current respiratory condition, you can imagine how much more serious the consequences could be, so it is important that we have this legislation.

I am personally very disappointed that the government did not progress this on the last day in the November 2017 sitting of parliament, spending most of the day fighting about whether we had a fairness clause in the Electoral Act rather than prioritising this important piece of legislation. We had publicly committed to support it, yet they were prepared to leave this off the list. It is disappointing.

However, that time is over. Our government is now in place and we will progress it urgently, and I ask the parliament to participate in ensuring there is no further delay in the passage of this legislation. I table the explanation of clauses.

Debate adjourned on motion of Mr Mullighan.