New Act:The Crimes Amendment Act (No.3) 2011 (the Act)

By Parentline, 11 November 2011

The Crimes Amendment Act (No 3) 2011 (“the Act”) received the Royal assent on 19 September 2011 and will come into force on 19 March 2012.

The Act arises from the Law Commission’s Review of Part 8 of the Crimes Act 1961 (NZLC R111) and is designed to:

strengthen the ability of agencies to hold individuals to account for harming the most vulnerable in our community. It will ensure that not only will the perpetrators of these acts be held accountable but also, significantly and importantly, those members of households who witness those incidents and turn a blind eye to the abuse or fail to take measures to stop ongoing incidents will be held accountable. The changes to the Crimes Act will also mean that those who have responsibility for children and who ill-treat or neglect a child can no longer use ignorance or thoughtlessness as a defence. They will be held accountable according to more objective standards of conduct that are to be expected of parents and caregivers.

(Hon Simon Power, Minister of Justice, Third reading of the Crimes Amendment Bill (No 2), 15 September 2011).

Among other things, the Act makes three key changes to protect vulnerable children and adults:

  • It creates a new offence of failure to protect a child or vulnerable adult from the risk of death, grievous bodily harm, or sexual assault as a consequence of an unlawful act by a third party, or failure of a third party to perform a legal duty (section 195A);
  • It doubles the maximum penalty for cruelty to a child from 5 years’ to 10 years’ imprisonment (section 195); and
  • It extends the offence of neglect or abuse to include vulnerable adults (section 195), and it extends a legal duty on parents and caregivers, who have a duty to provide the necessaries of life, to take reasonable steps to protect a child or vulnerable adult from injury also (sections 151 and 152).

Section 195A – Failure to protect child or vulnerable adult

New section 195A of the Crimes Act 1961 is targeted at persons who have frequent contact with a child or vulnerable adult (the victim) and are members of the same household as the victim or are a staff member of any hospital, institution, or residence where the victim resides.

With the exception of those under the age of 18, such a person will be liable to a term of imprisonment not exceeding 10 years if he or she:

(a) knows that the victim is at risk of death, grievous bodily harm, or sexual assault as the result of—

(i) an unlawful act by another person; or

(ii) an omission by another person to discharge or perform a legal duty if, in the circumstances, that omission is a major departure from the standard of care expected of a reasonable person to whom that legal duty applies; and

(b) fails to take reasonable steps to protect the victim from that risk.

[Our emphasis]

Section 195A(4)(a) outlines when a person is considered to be part of the same household and includes a person who, even though they do not live at the household of the victim, is so closely connected with the household that it is reasonable to regard them as a member of that household.

In accordance with section 195A(5), this will be determined by looking at the frequency and duration of visits to the household, familial relationship and any other matters that may be relevant in the circumstances.

New sections 151 and 152

New sections 151 and 152 respectively provide that a caregiver of a vulnerable adult, or a parent or guardian of a child, has a legal duty not only to provide necessaries to that person, but also to take reasonable steps to protect that person from injury.

Section 150A(2) will make a person criminally responsible for failing to discharge his or her legal duty under section 151 or 152 if, in the circumstances, the omission is a major departure from the standard of care expected of a reasonable person to whom that legal duty applies.

Section 195 – Ill-treatment or neglect of child or vulnerable adult

Section 195 creates a new enforceable legal responsibility for persons with actual care or charge of the victim and staff members of any hospital, institution, or residence where the victim resides.

Such a person is criminally liable for intentionally engaging in conduct, or omitting to discharge or perform any legal duty (such as to provide necessaries or take reasonable steps to protect a child or vulnerable adult from injury) the omission of which, is likely to cause “suffering, injury, adverse effects to health, or any mental disorder or disability to a child or vulnerable adult”.

A breach of this section can render a person liable to imprisonment for a term not exceeding 10 years.

Conclusion

The Minister of Justice has stated that it is his hope that the biggest impact of the Act

will be to help to encourage those in day-to-day contact with endangered children to come forward if they know that abuse or neglect is taking place. We all know that the price of silence in such cases may be the perpetuation of abuse and neglect over an entire childhood or, in some cases, the savage loss of a young, blameless life.

(Hon Simon Power, Minister of Justice, Third reading of the Crimes Amendment Bill (No 2), 15 September 2011).

We will see – because the Act makes it clear that we can no longer ignore what is right in front of us.