Australian Capital Territory Current Acts

CRIMES ACT 1900 - SECT 36A

    (1)     A person commits an offence if—

        (a)     the person is responsible for providing care to a vulnerable person; and

        (b)     the person engages in abusive conduct towards the vulnerable person; and

        (c)     the conduct results in—

              (i)     harm to the vulnerable person; or

              (ii)     a financial benefit for the person or someone else associated with the person; and

        (d)     the person is reckless about—

              (i)     if the vulnerable person suffers harm—causing the harm; or

              (ii)     if the person or someone else associated with the person obtains a financial benefit—obtaining the benefit.

Maximum penalty:

        (a)     if the person's conduct results in harm, other than serious harm, or a financial benefit—imprisonment for 3 years; or

        (b)     if the person's conduct results in serious harm—imprisonment for 5 years.

Note     A law that creates an offence applies to a corporation as well as to an individual (see Legislation Act

, s 161).

    (2)     Without limiting subsection (1) (a), a defendant is responsible for providing care to a vulnerable person—

        (a)     if the defendant exercises control over any aspect of the care needed by the vulnerable person; and

        (b)     regardless of whether the care of the vulnerable person is short-term or long-term care.

    (3)     It is a defence to a prosecution for an offence against subsection (1) if the defendant proves that—

        (a)     the defendant's conduct was reasonable in all the circumstances; or

        (b)     for a defendant who is associated with a relevant institution providing care to the vulnerable person—

              (i)     the defendant's conduct complied with—

    (A)     the relevant institution's procedures and practices for the care, supervision or control of the vulnerable person; or

    (B)     the direction of a person in authority in the relevant institution; or

              (ii)     the abusive conduct happened as a result of circumstances beyond the defendant's control.

Note     The defendant has a legal burden in relation to the matters mentioned in s (3) (see Criminal Code

, s 59).

    (4)     For subsection (3) (b), a defendant is associated with a relevant institution if the defendant—

        (a)     owns, manages or controls the institution; or

        (b)     is employed or engaged by the institution; or

        (c)     works as a volunteer for the institution; or

        (d)     engages in an activity with or for the institution; or

        (e)     is in any other position of authority in relation to the institution.

    (5)     In this section:

"abusive conduct", engaged in by a person (the abusive person ) toward a vulnerable person, means an act or omission—

        (a)     that is directed at the vulnerable person, and is of a violent, threatening, intimidating or sexually inappropriate nature; or

        (b)     that—

              (i)     is directed at the vulnerable person, or someone known to the vulnerable person, and is reasonably likely to—

    (A)     make the vulnerable person dependent on or subordinate to the abusive person; or

    (B)     isolate the vulnerable person from friends or family; or

    (C)     limit the vulnerable person's access to services needed by the vulnerable person; or

    (D)     deprive or restrict the vulnerable person's freedom of action; or

    (E)     frighten, humiliate, degrade or punish the vulnerable person; and

              (ii)     is not reasonably necessary for the safe and effective care of the vulnerable person, or for the safety of another person who is present or nearby.

"harm" means physical, psychological or financial detriment.

"relevant institution "means—

        (a)     an entity, other than an individual, that operates facilities for, engages in activities with, or provides services to, vulnerable people under the entity's care, supervision or control; or

        (b)     a group of entities mentioned in paragraph (a) if the entities—

              (i)     interact with each other, share similar characteristics and collectively have a sense of unity; or

              (ii)     are controlled, managed or governed by another entity.

Examples—par (a)

religious organisations, hospitals, nursing homes

Example—par (b)

a group of nursing homes controlled by a religious organisation or operated by a company

"serious harm" means any harm (including the cumulative effect of more than 1 harm) that—

        (a)     endangers, or is likely to endanger, human life; or

        (b)     is, or is likely to be, significant and longstanding.

"vulnerable person" means an adult who—

        (a)     has a disability within the meaning of the Disability Services Act 1991

; or

        (b)     is at least 60 years old and—

              (i)     has a disorder, illness or disease that affects the person's thought processes, perception of reality, emotions or judgement or otherwise results in disturbed behaviour; or

              (ii)     has an impairment that—

    (A)     is intellectual, psychiatric, sensory or physical in nature; and

    (B)     results in a substantially reduced capacity of the person for communication, learning or mobility; or

              (iii)     for any other reason is socially isolated or unable to participate in the life of the person's community.