Criminal offences relating to child protection

20.6 Parents, caregivers and those with parental responsibility have a duty, at law, to provide children in their care with the ‘necessities of life’, which includes providing financial support, food, clothing, accommodation, healthcare and access to education.^[6] The duty normally extends to children up to the age of 16 years, but may apply to older children in some circumstances, for example, where the child has a disability. Parents and caregivers also have a duty to protect children in their care from harm, including harm that is caused as a result of abuse or neglect.

20.7 The failure of those with parental responsibility to provide for the basic needs of children in their care, or to protect them from harm as a result of abuse or neglect, may constitute an offence under general criminal law or under child protection laws, thus exposing the parent or caregiver to criminal proceedings and the consequences of a criminal conviction.

20.8 As noted in Chapter 19, child abuse and neglect are often closely linked to family violence. An offender may be abusing both a parent and children; exposure to incidents of family violence between adults may be a risk to the child’s health and safety; or violence may interfere with a person’s capacity to be an effective parent.

20.9 Serious cases of child abuse and neglect, causing permanent or fatal injury to a child, are usually dealt with under the general criminal law as an offence of violence—for example, assault or manslaughter. Sexual abuse is also dealt with under the criminal laws of each state and territory which create a number of sexual offences against children.^[7] Sexual offences are dealt with in Part G of this Report, which also considers the difficulties of collecting forensic evidence and the provision of better support to victims in order to reduce rates of attrition. This section will not deal in detail with the application of these general offences.

20.10 The criminal law also creates a number of specific offences relating to child neglect and abuse. The creation of specific offences recognises that the criminal law has an important role to play in child abuse and neglect, on the basis that a function of the criminal justice system is to define acceptable standards of behaviour. Prosecution of an offender when those standards are breached sends a clear message to the community, denounces abusive or neglectful conduct, punishes the offender and acts as both a specific and general deterrent, to prevent the offender and others from committing or recommitting the same offence. The importance of the criminal law in labelling child abuse and neglect as unacceptable and a violation of children’s rights was emphasised in a number of submissions to this Inquiry.^[8]

20.11 In the Consultation Paper, the Commissions identified three issues in relation to provisions dealing with offences against children: whether the offence provisions are more appropriately placed in child protection statutes or in the general criminal laws of the states and territories;^[9] whether the way in which the offence provisions are currently drafted—which varies across all the jurisdictions—creates practical difficulties for law enforcement agencies, such that it affects decisions to bring prosecutions;^[10] and whether the penalties prescribed for these offences are appropriate.^[11]

20.12 The offences under each set of laws will be considered first, followed by a consideration of submissions and consultations with respect to these three issues.

Specific offences

Offences under child protection legislation

20.13 In four jurisdictions, there are child abuse and neglect offences in child protection legislation. In Western Australia, a person with the care and control of a child must not do an act, or fail to do an act, knowing (or recklessly disregarding) that the conduct may cause significant harm to a child from abuse (physical, sexual, emotional or psychological) or neglect.^[12] The relevant legislation defines ‘neglect’ to include the failure by the child’s parents to provide adequate care or effective medical, therapeutic or remedial treatment for the child.^[13] The penalty is imprisonment for up to 10 years.

20.14 In Victoria and Tasmania, it is an offence for a person who has a duty of care to a child to take, or fail to take, action that has either resulted in harm to the child, or has the potential to cause harm.^[14] The maximum penalty ranges, respectively, from 12 months imprisonment to two years.

20.15 NSW child protection law makes it an offence for any person—not just one who has care of a child—to do an act intentionally that causes or appears likely to cause injury or harm to a child or young person.^[15] It is also an offence for a person who has care of a child or young person to fail to provide the child or young person with adequate and proper food, nursing, clothing, medical aid or accommodation.^[16] Both these offences attract a maximum monetary penalty of 200 penalty units, the value of which is currently $22,000.^[17]

20.16 A number of child protection laws also make it an offence for a person who has care and control of a child to leave a child unattended and unsupervised either in a motor vehicle,^[18] or more generally.^[19] In NSW, the offence is framed more broadly to apply to any person, not only one who has care and control of a child.^[20] Again, the penalties for these offences vary substantially across the jurisdictions—from a monetary penalty in NSW to a term of up to five years’ imprisonment in Western Australia.^[21]

20.17 Other offences contained in child protection legislation include removing a child or young person from the care of a person who has protection and care responsibility under the relevant Act,^[22] and offences concerning tattooing, branding and body piercing.^[23]

Offences under general criminal legislation

20.18 In four jurisdictions—Queensland, South Australia, the ACT and the Northern Territory—offences relating to child abuse and neglect are contained in general criminal laws. The criminal statutes of NSW and Tasmania also contain more serious offences relating to the abuse and neglect of children.

20.19 Under the criminal legislation of NSW, Queensland, Western Australia, South Australia, Tasmania, the ACT and the Northern Territory, it is an offence for a person with parental responsibility to fail to provide a child—generally defined as a child under the age of 16 years—under his or her care with the ‘necessities of life’—generally defined as the provision of accommodation, food, clothing and access to healthcare, and education.^[24] In NSW, the maximum penalty is imprisonment for five years; in the ACT, it is two years. In Queensland, South Australia and Tasmania, maximum penalties of three years imprisonment apply where the neglect endangers the child’s health.

20.20 In Queensland, it is an offence for any person who has the care and control of a child to cause harm to a child aged below 16 years by reason of failing to provide for the child, deserting the child or leaving the child without means of support.^[25] In a number of jurisdictions it is also a crime to abandon or expose a child where that act endangers the life of the child or may cause serious injury, although the provisions vary in terms of the age of the child.^[26] In the Northern Territory, for instance, the offence relates to a child aged under two years, while in NSW and Queensland, the offence applies to a child aged under seven years. These offences attract maximum penalties ranging from five to seven years imprisonment, some depending on the age of the child.

20.21 There is some variation among the elements of the offence provisions in the criminal laws of the states and territories. Most require the prosecution to prove either an intentional or reckless act or omission and that the child has suffered, or was placed at risk of suffering, a high degree of harm such as serious injury or danger of death. Section 43A of the Crimes Act 1900 (NSW), for instance, provides that a person with parental responsibility for a child who intentionally or recklessly fails to provide the child with the ‘necessities of life’ is guilty of an offence if the failure causes a danger of death or serious injury to the child.^[27] By contrast, under s 30 of the Criminal Law Consolidation Act 1935 (SA)—which applies not only to children but to vulnerable adults—the prosecution must show failure to provide food, clothing or accommodation, but it does not require the prosecution to prove risk of harm.^[28]

The location of offence provisions

20.22 The question of whether offences against children for abuse and neglect should be contained in child protection legislation or in criminal laws attracted substantial, but quite diverse, comment. A number of stakeholders argued that the offences ought to be located in general criminal laws as this would clearly label the behaviour as a violation of children’s rights and a crime, thus sending a clear message to the community that such behaviour is unacceptable.^[29] Some submissions expressed the view that violence against any person should be an offence under general criminal law;^[30] and that the law should not treat acts of abuse and neglect against children any less seriously than it treats such acts committed against adults.^[31]

20.23 National Legal Aid and Professor Julie Stubbs supported locating the offence provisions in general criminal laws on the basis that the offences may be more useful there, given that similar offences in child protection legislation were rarely, if ever, prosecuted.^[32] The Queensland Government also took this position, arguing that the primary purpose of child protection legislation is to work with families in order to promote the safety of children in the least intrusive way to meet the child’s needs. It said that, while the two systems work in parallel with each other, a child protection response is not, nor should it be, contingent on securing a conviction. The Queensland Government submission noted that its criminal legislation provides for a wide range of specific and general offences against children.^[33]

20.24 In contrast, a number of other submissions, including the Magistrates’ Court and the Children’s Court of Victoria and the Department of Premier and Cabinet (Tas) submitted that offences against children for abuse and neglect should be retained in child protection legislation because of its child-focused approach.^[34] As one stakeholder commented:

We need a dedicated legislation and legal system that focuses on children and young people as the priority, with personnel who are trained and understand the needs of children and young people, and concepts of harm and the detrimental effect this has on children. I would be very concerned if the focus was on criminal laws, as these do not have a particular focus on children, and this is needed, to ensure their rights and needs are prioritised. I believe that moving this to criminal law would be a significant step backwards in achieving children’s rights to safety and protection from harm.^[35]

20.25 Another group of stakeholders was of the view that offences of abuse and neglect of children should be contained in both criminal laws and in child protection laws, depending on the degree of abuse or neglect.^[36] One stakeholder submitted that offences against children for abuse and neglect have a place in both general criminal legislation and child protection legislation. It suggested that the legislation should draw a clear link between abuse and neglect of children and domestic and family violence. The onus should be on holding the person who commits acts of violence accountable for the abuse and neglect of children in cases where there was evidence of domestic and family violence, rather than blaming the non-abusive parent—usually the mother—for failing to protect the child.^[37] This was a persistent criticism of the response of the child protection sector to family violence.

Commissions’ views

20.26 The major advantage of locating the offence provisions in child protection legislation, rather than in criminal laws, is that decisions as to whether to bring proceedings are subject to a consideration of the objects and principles of the legislation. These make the best interests of children the paramount consideration. It also facilitates the involvement of child welfare experts in harm assessments, and in decisions to investigate and prosecute alleged offences, therefore ensuring appropriate protective responses. On the other hand, locating offence provisions in a criminal statute clearly marks the behaviour as serious, outside the confines of acceptable behaviour and criminal in nature.

20.27 As discussed previously, there is a fundamental distinction between criminal law, on the one hand, and civil law—child protection and family violence legislation—on the other hand. The former looks to past behaviour, with a focus on punishment of the offender and retribution for the victim, while child protection and family violence legislation are forward-looking. Their common and principal objective is to protect and secure the future welfare of those who are at risk of harm caused by family violence—typically by imposing conditions that regulate the behaviour and movements of those who have committed family violence.

20.28 This complex interrelationship between criminal and care and protection issues lends support to the Commissions’ view that the strongest approach to decisions about how to deal with offences against children involves co-operative relationships between key agencies that bring different interests, skills and responsibilities to the process. For example, in NSW, Joint Investigation Response Teams—made up of community services caseworkers, the police and health professionals—undertake joint investigation of child protection matters. In the Northern Territory, the Child Abuse Taskforce also includes Indigenous representatives and other agencies as required in their joint investigations. These and other inter-agency cooperative arrangements are discussed in more detail in Chapter 29.

20.29 The Commissions note the various approaches taken by different states and territories, and acknowledge the diversity of views and responses on the location of these offence provisions and the force of arguments on both sides. The appropriate response to the fact that there are strong arguments in favour of locating the offence provisions in criminal law and in child protection legislation may be to place them in both, and to make a decision about which legislation to use depending on factors such as the nature and severity of the offence. However, the Commissions conclude, on the basis of the submissions received, that there is not sufficient weight of evidence to justify making a specific recommendation.

The form of the offence provisions

20.30 Few submissions addressed the question in the Consultation Paper about the way the offence provisions are currently drafted.^[38] The Magistrates’ Court and the Children’s Court of Victoria commented that there may be cause for a review of the offence provisions if the requirement to prove intention was deterring prosecutors from bringing prosecutions.^[39] The Courts submitted that Victorian courts have not dealt with offences of child abuse or neglect under s 493 of the Children, Youth and Families Act 2005 (Vic), although five people were sentenced for leaving a child without supervision or care in 2007–08. However, it also noted that circumstances giving rise to the charge were more likely to be dealt with by way of referral to the child protection agency where the emphasis is on the need to ensure future safety of the child:

Usually the best interests of a child will be served by maintaining a relationship with the child’s parent. This suggests a need to prioritise protection over prosecution in all but the most serious cases.^[40]

20.31 The Commissioner for Children (Tas) also noted that prosecutions had rarely, if ever, been brought for child abuse or neglect under s 91 of the Tasmanian child protection legislation, attributing this largely to the difficulty faced by a prosecutor to secure a conviction. The Commissioner noted that the provision ‘may well be there for educational impact rather than as a prosecutorial tool’.^[41]

Commissions’ views

20.32 The low number of submissions raising this as an issue of concern suggests that the way the offence provisions are framed was not a pressing issue for the safety of children. Low levels of prosecution were indicated in two submissions, but may be the result of a number of factors. Any concerns about particular offence provisions may be best dealt with by individual jurisdictions. The Commissions do not, therefore, make any recommendation in relation to the form of the offence provisions.

Penalties for offences under child protection laws

20.33 In the Consultation Paper, the Commissions asked what range of penalties ought to be available for offences under child protection legislation.^[42] The Commissions considered whether, where a prosecution is brought under child protection legislation, alternative penalties should be available to the court other than imprisonment or a court-imposed fine. Such penalties may include community service orders or conditional bonds that might, for example, impose conditions requiring offenders to participate in offender rehabilitation programs designed to address risk factors associated with the offender’s conduct, such as alcohol and substance abuse. They may therefore be more likely to produce an effective outcome, in terms of rehabilitation, retribution and deterrence, than the imposition of a court fine.

20.34 A range of community-based, non-custodial sentencing options are widely available in all Australian jurisdictions, generally as an alternative to a sentence of imprisonment,^[43] although in some jurisdictions, such as Victoria, they are also available as an alternative to a fine.^[44] These include options such as community service orders, and orders that require participation in programs designed to address offending behaviour.

20.35 In all jurisdictions where imprisonment is a possible sanction for child abuse and neglect offences—that is, in all jurisdictions except NSW—the normal sentencing alternatives to prison would be available under the jurisdictions’ sentencing laws.

20.36 A particular issue arises in NSW, where the only sentencing option available to a court for a child abuse or neglect offence under the Children and Young Persons (Care and Protection) Act 1998 (NSW) is to impose a fine^[45] or give a bond under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Such a bond allows the court to discharge an offender without conviction on conditions that may include a requirement that the offender participates in a treatment or rehabilitation program.^[46] The Commissions note that imprisonment was a penalty under the previous NSW child welfare legislation,^[47] and this would have allowed access to a wider range of community-based sentences. The 2008 Report of the Special Commission of Inquiry into Child Protection Services (Wood Inquiry) declined to reinstate imprisonment as a penalty for abuse and neglect offences in the NSW legislation on the basis that it was not in the best interests of the child, particularly in the case of a parent offender, because to do so would be likely to exacerbate underlying risk factors.^[48]

Submissions and consultations

20.37 A number of stakeholders submitted that a full range of penalties should be available for offences against children contained in child protection laws, up to, and including, imprisonment.^[49]

20.38 The Magistrates’ Court and the Children’s Court of Victoria submitted that the focus should be on ensuring that the sentencing court has the flexibility to craft orders that reflect the circumstances of each particular case.^[50] It noted that, in Victoria, the court is able to apply a full range of penalties—including penalties to advance rehabilitation such as community-based orders—and can take into account the wide range of scenarios that might fall within the legislation, the ongoing role of an offender as a parent and the best interests of the child affected by the abuse or neglect.

20.39 The availability of community-based orders to divert offenders to relevant programs aimed at addressing associated issues, such as family violence or drug and alcohol abuse, was widely supported.^[51] However, a concern was expressed that these need to be linguistically and culturally appropriate and offenders need to be supported so that they understand clearly what the orders require; how to comply with them; and the consequences of breaching them.^[52] The Victorian Aboriginal Legal Service Co-operative Ltd cited the Wulgunggo Ngalu Learning Place as an example of a culturally-appropriate place for Aboriginal and Torres Strait Islander men who are undertaking community-based orders. The program aims to help these men successfully complete their orders while teaching life skills to reduce the likelihood of return to offending behaviour.^[53]

20.40 Another significant concern was that community-based orders are not widely available outside metropolitan areas. The unavailability of programs in rural and remote areas hampers judicial officers in sentencing. It results in some people being sentenced to imprisonment, and fails to offer rehabilitation or other therapeutic interventions that might address underlying problems.^[54]

Commissions’ views

20.41 It would appear that the only state in which there are limited sentencing options available in relation to abuse and neglect offences under child protection legislation is NSW, where imprisonment was removed as a sentencing option in 1998, when the new child protection legislation was introduced. However, as discussed above, NSW courts do have some capacity under the Crimes (Sentencing Procedure) Act 1999 to impose a bond on an offender, where it considers a bond appropriate. Furthermore, where there is enough evidence, the police also have the option to bring proceedings under the criminal law, where a wider range of sentencing options are available to the court. For these reasons, and in view of the conclusions reached by the Wood Inquiry,^[55] as noted above, the Commissions make no recommendation.