NSW has the weakest child neglect penalties in Australia according to a University of Wollongong legal academic.
Associate Professor Julia Quilter, a former criminal lawyer, said NSW was the only jurisdiction in the country where these offences carried a fine-only penalty.
In Queensland, South Australia, the ACT and Northern Territory, she said, offences relating to child neglect were dealt with through general criminal laws, with imprisonment the maximum penalty.
The rest of the country, including NSW, prosecuted these offences under specific child protection legislation.
“Some would view that putting these offences in the general Crimes Act appropriately marks the conduct as ‘criminal’, and sends the message that failing to appropriately care for a child is a crime,” Dr Quilter said.
“On the other hand, there's the view by experts who work in the field, that it’s more important to have these types of offences dealt with under child protection legislation where there is a dedicated focus on the best interests of the child.”
Dr Quilter said those states that did use specific child protection legislation, still had very different penalties available. In WA, she said, the maximum penalty for child neglect was 10 years imprisonment, in Victoria and Tasmania it is between 12 months and two years imprisonment.
“NSW is the only regime in Australia that uses a fine only as the penalty for child protection,” she said. “NSW is an outlier in that respect.”
Imprisonment was removed as a sentencing option in NSW when the Children and Young Persons (Care and Protection) Act 1998 was introduced.
Dr Quilter said a decade later, the Special Commission of Inquiry into Child Protection Services, headed by Justice Wood, declined to reinstate imprisonment as a possible penalty.
“It was viewed as not in the best interest of children, especially where it was a parent offender, because it may exacerbate risk factors,” she said. “For instance if a parent was in prison, it exposed the child to a whole range of other risk factors.”
The decision however did limit sentencing options, Dr Quilter said, as it also took a range of community-based orders off the table.
“One issue that results in a fine being the only option for this type of offence is, not only does it limit a magistrate in relation to imprisonment, it limits them in terms of any alternative sentencing options,” she said.
“Where someone can be imprisoned, a court also has available a range of alternatives like community service orders or conditional bonds that require offenders to be involved in rehabilitation programs, typically alcohol and substance abuse but not exclusively.”
Dr Quilter could not comment specifically on the case before the courts last week. However said such an “extreme example” should not lead to quick law changes without the appropriate consideration of the issues.
“Child protection needs to be addressed in a very principled way - I wouldn’t want to see some sort of knee-jerk response,” she said.
“While we would all been concerned by a parent accommodating children in an extremely dirty, unclean, unhygienic environment, we might also see that as a call for help.
“Would it be better to invest time money and resources into supporting a parent to understand the importance of hygiene? Under an alternative form of sentencing, we would perhaps be able to engage someone in community health to work with this person to clean up and get some structures in place.”
The magistrate in the recent case said harsher sentences would have been available for perpetrators of animal neglect.
Dr Quilter explained: “In NSW, under the Prevention of Cruelty to Animals Act 1979, there’s a range of different offences related to having animals in your control.
“For instance there’s an offence for failing to provide food, drink and shelter for animals - that offence carries a fine of up to 50 penalty units (the fine for child neglect is a maximum of 200 units) or imprisonment for six months.
“More serious types of offences, such as cruelty to animals, again incur 50 penalty units or six months imprisonment.”
Meantime Dr Quilter said while most people were charged for offences relating to child neglect under the Children and Young Persons Act, there was some general offences under the NSW Crimes Act.
“There’s a criminal offence which relates to the failure of a parent to care for a child in terms of what’s called the ‘necessities of life’ (which includes food, clothing, accommodation, healthcare and access to education) which carries a maximum penalty of five years imprisonment,” she said.
“So there are more serious offences available to prosecutors to prosecute, so these matters can be dealt with in a more serious way … that’s of course if the elements are able to be proven.”
For instance, in order to successfully prosecute child neglect charges under the Crimes Act, prosecutors have to prove beyond reasonable doubt that the failure to provide the necessities of life directly caused a ‘danger of death or serious injury to the child’.