Grounds for bringing criminal proceedings

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, exposing the parent or caregiver to criminal proceedings and the consequences of a criminal conviction.

The crimes legislation in force in Queensland, South Australia, the ACT and the Northern Territory contain offences against children relating to their welfare, whereas in Victoria and Western Australia similar offences are found in their child protection statutes. In NSW and Tasmania, the same conduct may give rise to offences against children under both crimes and child protection legislation.

A number of issues arise in relation to provisions dealing with offences against children. One of the most significant is whether the way in which the offence provisions are currently drafted—which varies across all the jurisdictions—is appropriate or whether practical difficulties arise for law enforcement agencies, and how such problems affect decisions to bring prosecutions.

In the past, child neglect offences outlined in child protection statutes could be distinguished from those outlined in the general criminal law in terms of what was required to be proved by the prosecution. These differences are more obscure today. Criminal neglect offences often required the prosecution to prove that the accused not only did something that put a child in danger, but also wilfully intended to cause harm to the child. These requirements placed an onerous burden on prosecuting authorities, which often proved too difficult to discharge.

In recognition of the need to strengthen the criminal justice system’s response to child neglect, a number of jurisdictions have amended their criminal laws to relax the prosecutorial burden in child neglect offences, thus enabling relevant authorities to pursue prosecutions in appropriate circumstances. For example, s 43A of the Crimes Act 1900 (NSW) was inserted in 2004 to provide that a person with parental responsibility for a child who intentionally or recklessly fails to provide the child with the ‘necessities of life’, without reasonable excuse, is guilty of an offence if the failure causes a danger of death or serious injury to the child.

A major difference between offences created under child protection legislation and those created in general criminal law is the application, in the former, of objects and principles specific to child protection legislation. Hence, unless specifically excluded, actions taken or decisions made concerning the investigation or institution of proceedings in relation to conduct giving rise to offences under child protection law should be made having paramount regard to the best interests of the child. So, for example, in addition to other matters it ordinarily considers when deciding whether to prosecute matters, a law enforcement agency should take into account the impact on the child of bringing proceedings against a parent, and whether that would be in the child’s best interests. This may be an argument for including offence provisions in the child protection statutes.

On the other hand, locating offence provisions in child protection statutes may place greater responsibility on child protection agencies. This raises a question as to the compatibility of a law enforcement function with the child protection agency’s main function of working with families to ensure the safety of children.

The Commissions are aware that, in practice, it is the police rather than the child protection agency that initiates (and handles) prosecutions against parents or caregivers, although it may be a decision that they make jointly. One reason for the division of functions may be to disassociate the child protection agency from the prosecution so that it does not jeopardise its relationship with the child and the family. Another reason may simply be to allow each agency to focus on its areas of expertise.

The Commissions are interested to hear views about the appropriateness of current offence provisions, what problems arise from the way in which they are drafted, and whether the offences are more appropriately placed in child protection statutes or crimes acts.

Question 13–1 Should offences against children for abuse and neglect be contained in child protection legislation or in general criminal laws?

Question 13–2 In practice, what issues, if any, arise from the way in which the offence provisions are currently drafted?

Question 13–3 In those jurisdictions where the same conduct may give rise to an offence under both child protection or criminal legislation, what factors are taken into account in practice when determining whether to bring an action against an alleged offender under child protection or criminal legislation?

Penalties under child protection legislation

In NSW, questions have been raised about the appropriateness and adequacy of the penalties prescribed for offences under the Children and Young Persons (Care and Protection) Act 1998 (NSW), which currently attract maximum fines of up to $22,000. It has been argued that a monetary penalty, regardless of how substantial, does not adequately reflect the seriousness of the offence, does not sufficiently denounce child abuse and neglect and does not provide an effective deterrent. The question is whether, as is the case under other state and territory legislation, the offences under the NSW statute should be punishable by a period of imprisonment, either in addition to, or as an alternative to the monetary penalty.

The Commissions acknowledge that the jailing of a parent offender may adversely affect the child and the family—in terms of loss of income and loss of contact with the parent. While hardship on an offender’s family is a factor which courts may consider when determining whether to jail the offender, the current practice is for sentencing courts to consider hardship only in exceptional circumstances.[1]

Criminal sentencing options have moved away from sentences of imprisonment in recognition of a substantial body of research which shows that imprisonment neither rehabilitates offenders nor acts as an effective deterrent.[2] There is a trend towards community-based sentencing modules with built-in offender programs, supervised by the government corrective services body. The incentive for offenders to comply with court orders to attend offender programs is the risk of being imprisoned.

The Commissions are interested to hear views about what sentencing options are currently imposed by courts when sentencing offenders for offences against children, and what range of penalties should be available for offences under child protection legislation.

Question 13–4 What range of penalties should be available to courts for offences under child protection legislation?

Question 13–5 In practice, what range of penalties are most regularly imposed, and if conditional, what are the most usual conditions imposed by the court?

[1]Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, ALRC 103 (2006), [6.121]­–[6.127]. The Australian Law Reform Commission supported a more liberal approach to be taken by the courts when considering the impact of sentencing on the offender’s family: see [6.126].

[2]Ibid, [7.114]–[7.115].