Bills

Criminal Law Consolidation (Foster Parents and Other Positions of Authority) Amendment Bill

Second Reading

Adjourned debate on second reading (resumed on motion).

The SPEAKER: The member for Morphett, I am reliably informed, has five minutes remaining.

Mr PATTERSON (Morphett) (15:38): Thank you, Mr Speaker, and thank you for the opportunity to continue my remarks on the Criminal Law Consolidation (Foster Parents and Other Positions of Authority) Amendment Bill. To recap, the bill itself seeks to rectify an issue which, due to the current legislate framework, may impact upon the ability to prosecute instances of sexual abuse of children in the care of foster-parents and residential care workers in certain circumstances.

The amendments to the bill, while the risk is considered extremely low, will clarify the criminal liability for an offence against a child aged between 17 and 18 years of age and in the care of foster-parents. Additionally, the bill addresses a further gap in the categories of people who are defined to be in a position of authority. The position of authority provisions effectively extends criminal liability for people who are in a position of authority in relation to children if the child is between 17 and 18 years of age.

It refers to facilities that are classified as either a licensed children's residential facility or a residential care facility or other facility established under section 36 of the Family and Community Services Act 1972. If the bill is accepted, it will mean that the law should not have any different impact on those children and young people in residential care, as opposed to those in family-based care. The bill seeks to further protect the state's vulnerable children and ensure that our legislation is clear, guaranteeing that those who engage in illegal behaviour can be prosecuted and punished accordingly.

It also acts as a deterrent for those who seek to enter foster care to harm children and really allows the vast majority, which I spoke of previously, of foster care parents to do such wonderful work and help guide children and youth through to adulthood so that they can have a meaningful life going forward. The bill is retrospective in its nature and it will be backdated to the original commencement date of 22 October 2018. However, as we heard here earlier, the state's first dedicated Minister for Child Protection, the member for Adelaide, is not aware of any case that will be impacted by the introduction of this commencement date.

The bill before us is yet another example of the Marshall Liberal government's commitment to our state's children. Our government has introduced Carly's Law to protect South Australian children from online predators and has introduced a dedicated child protection minister to ensure that some of our state's vulnerable citizens are well looked after. In her contribution to this debate, the minister outlined her support for this legislation and any legislation that enhances the provisions to protect our most vulnerable children. I commend the bill to the house.

Ms LUETHEN (King) (15:41): I rise to support the bill, which has been introduced by the Attorney-General and supported by our hardworking child protection minister because the most important job of government is to keep its community safe. This is the only way, with every child safe, that they are going to have the chance of growing up and reaching their full potential. I have put my hand up to serve the community for this very reason: to keep children safe.

This is the Liberal way: not to whinge and whine, not to talk about a problem or talk about change we would like to see, but to take it on board ourselves; to plan, act, and deliver. This is why this piece of legislation is so important. This is what we are doing. We are listening and we are acting to make our community safer. The bill amends our laws to provide greater protection to our community and better deterrents to perpetrators whose goal is to harm children in our state who are in their care.

In my electorate, my constituents have told me they want harsher penalties for people who hurt other people, and they want a safer community. To us, every child in our community is very important and their protection is paramount. The bill amends the Criminal Law Consolidation Act 1935 to address an issue that has been identified, that may impact on the ability to hold to account and prosecute foster-parents and residential care workers for sexual abuse of children in their care in certain circumstances.

Why is this so important? Australian government research tells us that childhood sexual abuse is associated with a broad array of adverse consequences for survivors throughout their lifetime. As a result of more rigorous research studies in this field, our understanding of the impacts of child sexual abuse is becoming more nuanced, and a robust body of research evidence now clearly demonstrates the link between child sexual abuse and a spectrum of adverse mental health, social, sexual, interpersonal and behavioural, as well as physical health, consequences.

To date, the strongest links have been found between sexual abuse and the presence of depression, alcohol and substance abuse, eating disorders for women survivors and anxiety-related disorders for male survivors. An increased risk of revictimisation of survivors has also been demonstrated consistently for both men and women survivors. This is part of the lifelong sentence given to children who are sexually abused.

Some more recent research has also revealed a link between child sexual abuse and personality, psychotic and schizophrenic disorders, as well as a heightened risk of suicide, ideation and suicidal behaviour. However, government researchers state that many questions still remain unanswered. For example, we need to better understand the experiences of boy victims of child sexual abuse, particularly within the context of institutional cases of child sexual abuse and the impact of such experiences on key areas of victims' functioning.

Today, statistics tell us that one in three girls and one in six boys will be sexually abused. Further research in this area needs to continue to tease out the gender differences in victims' experiences of child sexual abuse and the impact of mediating variables on survivors' future functioning and their adjustment in all spheres of their life. This understanding will assist in the identification, treatment and prevention of child sexual abuse.

Importantly, this knowledge is key to survivors of child sexual abuse being able to disclose their experiences in a safe and supportive environment and gaining access to effective services and the support they need to deal with those experiences and all of its effects. This is why I speak up about child sexual abuse and advocate for early intervention and child protection curriculum being taught in the early years.

I did not know I had been sexually abused until I learnt what this abuse was. I hope by continuing to speak up in this house that more survivors will speak up, that more survivors will share their experience, seek counselling and expose perpetrators. I hope survivors will advocate with me for change until our community is a much safer one. In many cases, speaking up and exposing those who harm children could stop perpetrators from reoffending. This certainly would have been so in my case.

I truly believe that together with the strength and courage of survivors, support from colleagues in this house and with people like the Attorney-General persistently closing loopholes and taking a hard line on perpetrators, and the Minister for Child Protection working hard to improve our Department for Child Protection's support of the community, we will together build a safer community.

Let's reflect one more time on the impact child sexual abuse has on victims so that everyone in our community understands. In the long term, the child may experience a number of effects as an adult. These may include:

1. Depression, anxiety and trouble sleeping.

2. Low self-esteem.

3. They might feel like damaged goods and have negative body image due to self-blame. This might be intensified if physical pain was experienced during the abusive incidents.

4. Disassociation from feeling, which was certainly something that I can reflect on feeling.

5. Social isolation.

6. Relationship problems, such as an inability to trust, poor social skills or a reluctance to disclose details about themselves.

7. Self-destructive behaviour, such as substance abuse or suicide attempts.

8. Sexual difficulties, such as fear of sex or intimacy, indiscriminate multiple sexual partners or other problems during sex.

9. Parenting problems, such as fear of being a bad parent or a fear of abusing the child or being overprotective.

10. An underlying sense of guilt, anger or loss.

11. Flashbacks and/or panic attacks.

We can support changes in this house that prevent abuse. This will put a stop to the resultant lifelong impacts so that more people in this state can live better lives and more people can reach their full potential, which will mean a healthier and more productive community.

Already this year, we have heard time and time again, with the instances in our local papers at the moment, that a key factor of psychological trauma among survivors is not being heard, not being believed and not having their experience validated. We are moving pieces of legislation like this to close all loopholes. As background to this legislative change, the Attorney-General's Department has picked up issues with a number of sections of the Criminal Law Consolidation Act 1935 regarding the definition of a 'foster-parent' for the purposes of certain child sexual offences in the Criminal Law Consolidation Act.

On 22 October 2018, the new child protection laws were fully commenced. There is now a concern that a change in the terminology used in the context of the Children and Young People (Safety) Act to refer to 'approved carer' rather than 'foster carer' could, within South Australia, impact on the interpretation of the term 'foster-parent' in the Criminal Law Consolidation Act. This would mean that an approved carer would not be considered a person in a position of authority in relation to a child who has been sexually abused.

The impact of being found to be in a position of authority in those provisions is to extend criminal liability to include situations where the child is 17 years of age, and where criminal liability would otherwise only arise if the child was under 17 years of age. Accordingly, if this interpretation were applied, the ability to prosecute foster-parents for sexual abuse of children in their care aged 17 would be impacted.

For the avoidance of any doubt, this bill inserts a definition of 'foster-parent' to include 'an approved carer' within the meaning of the Children and Young People (Safety) Act. This will ensure that all approved carers are clearly captured by the Criminal Law Consolidation Act provisions and ensure that any broader application of the term 'foster-parent' that has applied previously continues to apply.

When this bill passes, this will ensure that the prosecution of foster-parents for sexual abuse of children aged 17 years in their care will not be impacted. The risk of this occurring is considered to be low, but that does not matter. However, in the absence of a legislative definition, a court would ordinarily be expected to continue to interpret the definition of a foster-care parent according to its ordinary meaning, rather than by reference to the Children and Young People (Safety) Act.

Prior to the proposed amendments, the term 'foster-parent' was not defined. It is therefore expected that the type of care provided by an approved carer would be interpreted to be within the meaning of care provided by a foster carer in any event. To ensure that there is absolutely no ambiguity about who is in a position of authority, the government has brought this bill to address this risk. Since identifying this issue, there has been further consideration of the amendments that were initially intended by parliament in the Children's Protection Law Reform Act.

In the course of preparing the bill to address this drafting issue, a further gap was identified in the categories of people who are defined to be in a position of authority. As noted above, the position of authority provisions effectively extend criminal liability in situations where the cut-off age for regarding a person as a child would have been 17 years old, being the age of consent in South Australia. That is, it extends criminal liability for people who are in a position of authority in relation to children if the child is between 17 and 18 years of age.

The categories setting out who is in a position of authority now include teachers, social workers and health workers providing services to a child and those who provide religious, sporting, musical or other instruction to a child, amongst other categories. Obviously, it also includes a parent, step-parent, guardian or foster-parent. However, people who work in children's residential facilities are not currently specified to be in a position of authority in these provisions. Clearly, they should be, and we are fixing that too.

The state's residential care facilities are staffed predominantly by employees who are not social workers, such as youth workers and other ancillary staff. These employees provide rotational care and services for children and young people who reside in these facilities. These people are unlikely to fall within the definition of 'foster-parent', and this is why this change is so important, because people who work in children's residential care facilities are not currently specified to be in a position of authority in these provisions. Clearly, they should be and we are fixing that.

Specifically, what we are doing is (1) inserting a definition of foster-parent to include an 'approved carer' within the meaning of the safety act. This will ensure that all approved carers are clearly captured by the Criminal Law Consolidation Act provisions and ensure that any broader application of the term 'foster-parent' that has applied previously continues to apply; (2) defining people who work in children's residential facilities as people who are in a position of authority; and (3) making the bill retrospective.

As we have said, although there is a low risk here, it is not a risk that the Attorney-General, the Minister for Child Protection or anyone on this side of the chamber would like to take. All children deserve to be treated with respect and be protected from harm, and this is the only way that every child has every chance of reaching their full potential. This is what this government and I care deeply about.

In closing, I wish to commend the foster carers in my community who care deeply about the children in their care. Thankfully, there are many more fiercely loving, caring and protective foster carers than there are carers we need to be vigilant about. I thank the foster carers in my community for their inspiring and selfless efforts in caring for children who have not had the best start in life. You are making a difference in every one of these children's lives and giving them every chance to reach their full potential. I commend the bill to the house.

Mr TEAGUE (Heysen) (15:56): On 22 October last year, the new child protection laws were fully commenced. As those who have followed the debate will be aware, the new provisions now provide for the approval of what is defined in the new legislation as 'approved carers' for the purposes of the act. That is found in section 72(1) of the Children and Young People (Safety) Act 2017. Section 72 provides that the chief executive may approve a person as an approved carer for the purposes of the act. I take the opportunity to note that, in doing so, the chief executive's responsibility is to consider the objects that are provided for under section 19 of the act in approving a person as an approved carer.

I also remind the house that section 77 of the act provides further that, in circumstances where an approved carer is not available, then measures may be taken. That is the background before which the Criminal Law Consolidation (Foster Parents and Other Positions of Authority) Amendment Bill comes before the house.

In rising to commend the bill to the house, I welcome the opposition's support. There are an uncontroversial number of amendments to the Criminal Law Consolidation Act and I will step through those in the short time available to me now. In doing so, I certainly seek to endorse and amplify the words of the Attorney-General, the member for Morphett and just now the member for King, who have so ably adumbrated the purpose, objects and necessity for the amendments that are the subject of the bill.

The terms that might be borne squarely in mind in the context of this debate and the work that the bill is doing relate firstly to the use of the words 'approved carer' in the new legislation, to which I referred at the outset. Secondly, and relevantly, it is to be borne in mind who a person in a position of authority is, and the Criminal Law Consolidation Act makes reference to a foster-parent in four sections. At present, the Criminal Law Consolidation Act does not define a foster-parent; rather, a foster-parent is among a class of persons described as 'persons in a position of authority' for the purposes of the offences set out in part 3 of the act.

I turn to the relevant parts of the Criminal Law Consolidation Act. The offences that relate to a person in a position of authority are referred to in three sections within division 11 of part 3 of the act. I will not spell this out in relation to each of the sections but, firstly, section 49 provides for the offence of unlawful sexual intercourse. In subsection (5), the Criminal Law Consolidation Act provides that, if a person in a position of authority in relation to a person under the age of 18 years has sexual intercourse with that person, they are guilty of an offence with a maximum penalty of imprisonment of 10 years. That offence provision is prescribed specifically in relation to a person in a position of authority.

Section 49(9)(b) defines who a person in a position of authority is for the purposes of the section. Indeed, that is consistent in relation to the subsequent two sections within that division and for the purposes of section 63B in division 11A, and I will refer to that briefly in a moment. Section 49(9)(b) provides that, where a person is a parent, step-parent, guardian or foster-parent of the child or the de facto partner or domestic partner of a parent, step-parent, guardian or foster-parent of the child, then they are a person in a position of authority for the purposes of the section and therefore a person to whom section 49(5) applies. The same machinery applies throughout the remainder of the division 11 offences. One picks that up at section 50(13)(b) and again at section 57.

It is because the new provisions, the subject of the Children and Young People (Safety) Act, deal with a reference to an approved carer that the term 'foster-parent' is to be defined in the new act for the first time. We see that clause 4 of the bill now inserts a new definition, and that definition of foster-parent will take in approved carer and so, relevantly, approved carer for the purposes of section 72 of the Children and Young People (Safety) Act and also those persons who, as I referred to at the outset of my remarks, are persons in whose care a child may be placed pursuant to section 77 of the act, that is, in circumstances where an approved carer cannot be found and the provisions of section 77 are then called upon for the purposes of temporary care.

For completeness, I referred to the three sections within division 11 of the Criminal Law Consolidation Act. Section 63B within division 11A of the act dealing with child exploitation also contains, relevantly, the same machinery that is applicable to persons in a position of authority and, in turn, foster-parents and therefore the new terminology that is the subject of the Children and Young People (Safety) Act, that is, relating to an approved carer. Those four provisions are now to be the subject of the definition.

The bill further takes the opportunity to deal with those three circumstances in which a child is placed in care—that is, care in a licensed children's residential facility (that is the subject of section 105 of the Children and Young People (Safety) Act 2017); secondly, in a residential care facility; and, thirdly, in another facility that might be established under section 36 of the Family and Community Services Act 1972, or if a person is engaged in the administration of such a facility and acting in the course of their duties in relation to the child.

The bill provides, in each of those relevant four sections to which the new definition will also apply, new subsection (9)(ga) to section 49, a new subsection (13)(ga) to section 50, a new subsection (4)(ga) to section 57 and a new subsection (6)(ga) to section 63B, so that there can be no doubt that where a person is in a position of authority in relation to both those forms of authority under which we are now well familiar and which have been the subject of the Criminal Law Consolidation Act in those sections for some time.

They are well settled, so much so that those terms have not found their way into the definitions in the act because terminology of that specific nature is now used in the new provisions that are the subject of the Children and Young People (Safety) Act. That is now defined in such a way as to cover the field so that there can be no doubt that someone in a position of authority, whether it be a parent or guardian or foster-parent, will be caught by the definition for the purposes of that particular class of relevant offending that applies to persons in a position of authority.

Those are the provisions that are the subject of this bill. They are rightly uncontroversial. We have a duty in this place to ensure that wherever there may be an opportunity to make clear in the laws that we enact, particularly in circumstances where those laws concern the protection of children, that we do so comprehensively and with clarity so that there can be no doubt that, if someone is in any form relevantly of a position of authority, they will be appropriately the subject of these provisions should they be required to be called upon.

By way of general remarks in the short moments available to me, I wish to emphasise the words of the member for Morphett and the member for King, and those of the Attorney in introducing the bill, and all those who have spoken on both sides. They have all spoken about the important role that foster-parents play in this area. Whether an approved carer is someone putting their hand up to do this important work or whether that is an institution that is providing safe haven for children in need of this support, we must recognise the importance of that.

We must also recognise the importance of ensuring, insofar as we possibly can, children who are in need of this assistance are both protected and supported so that, regardless of the circumstances of the child's early life that may cause them to need those services, they are given every opportunity to flourish and to live a life that is as full of opportunity as it possibly can be. Personally, I take the opportunity to thank and salute those who dedicate themselves to engagement in this important area of work. It is important, too, to recognise the work that the minister has already done in this space.

This is a bill amending the Criminal Law Consolidation Act and it is doing so promptly after the introduction of new provisions in the Children and Young People (Safety) Act. Those provisions were introduced in October last year promptly on the election of this new government.

We have already seen that we have in this minister and in this new government a single-minded dedicated purpose to do all that can be done to ensure that we have the best possible outcomes; that is, an environment, as far as we can possibly achieve it, of safety for our young people in care and an environment in which we encourage participation by those who would place themselves in a position of authority. We want to ensure that this is an environment in which people will put their hands up and, in turn, people in care will receive the benefit of that care. With those brief remarks, I commend the bill to the house.

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General) (16:16): I thank members of the house who have made a contribution to the debate on this matter and have reminded us that, whilst this is in a way a small amendment to very substantial law reform that we have previously dealt with, it is important. Members have taken the opportunity to reaffirm this parliament's universal condemnation of child exploitation and sexual manipulation. There has been a universal outcry at the exposure of children, particularly those who have been abused within a relationship with a person of authority.

I further welcome an indication from the opposition that they will support the bill. It is true that it is a pre-emptive strike to ensure that whatever potential loophole might be there is closed to ensure that there is no opportunity for someone to escape criminal prosecution and be dealt with by virtue of definitional deficiencies.

The two areas of criminal law in which we are seeking to deal with the description of a person of authority are section 49, 'Unlawful sexual intercourse', and section 50, 'Persistent sexual abuse of a child'. In that regard, I remind the house that we have already sanctioned a high order of significance in there being an act to be dealt with at a criminal level between the ordinary offence by a person who has no direct relationship as a position of authority and someone who is in a position of authority, and insisted on how severely they be dealt with.

In regard to unlawful sexual intercourse, a person who has sexual intercourse with any person under the age of 14 years is subject to being guilty of an offence and liable to imprisonment for life. Someone who engages in sexual intercourse with a person under the age of 17 years is guilty of an offence and is liable to imprisonment for 10 years.

There is various identification as to the defence entitlements, but in particular that consent is no defence, but the provisions already state that a person who is in a position of authority having sexual relations with a person under the age of 18 years is guilty and can be imprisoned for 10 years. So it is a very much more severe imposition to a person who is in authority, and there is very good reason for that: if one is a teacher or a foster care parent, or if a child is living in a residential facility under the supervision of an authorised carer, there is a circumstance in which the child is even more vulnerable because of the nature of the relationship, and the law recognises this and imposes it.

I suppose the most frequent evidence that we see of abuse in this area, which is published, is between teachers and students, and therefore it is important to ensure that we protect children who potentially are in such a vulnerable relationship. In relation to the persistent sexual abuse of a child, which has been a relatively new initiative in the criminal law, here, again, imprisonment for life is the maximum penalty for any adult who maintains an unlawful sexual relationship with a child. A child, for the purpose of this, is someone under the age of 17 years. So, again, there is a very severe indication in that regard. Again, if the person in the relationship is someone who is in a position of authority, there is an aggravation recognition in the offence.

Already the law makes it very clear that if you exploit children within these relationships where there is such a power imbalance relative to the child's circumstance, then the law will treat you seriously. I do not think that, from the contributions that have been made, anyone in this house would walk away from insisting that foster carers or foster-parents, as they are commonly known (and we are reintroducing that definition into the act and that language into the act so that it is abundantly clear what we are doing here), or someone who is in a position of authority and trust and supervision in a residential facility clearly understand that they are to be covered by this, and that they, too, will not escape the criminal law and punishment in respect of any offences in breach of section 49 or section 50 of the Criminal Law Consolidation Act.

It is important that we do tidy this up, that we do ensure that we protect our children in this circumstance. Could I just say one final word in relation to the significance of the principal law that was reformed and effective as of October last year, which, really, was born from the recommendations of the Nyland royal commission. Former Supreme Court judge Margaret Nyland had undertaken a comprehensive assessment of the weaknesses in relation to child protection. Her report I think is rather disturbing reading—and I would encourage particularly any new members in the parliament to read the report; it is a long report, and I am not suggesting that everyone reads every word of it—but what is really telling are the case studies that she specifically investigated and which she reported on.

Repeatedly in these case studies, there were regrettably multiple events where children were in vulnerable circumstances under the supervision of a person of authority who exploited them. Probably the most notable, of course, was the case of Shannon McCoole, who was employed in after-school care. Subsequently, the department, which had responsibility for child protection, outlined his tawdry history over multiple occasions with multiple victims. He has been convicted and sentenced, and I think one of the former premiers described his conduct as acts of evil. The reality is that it can happen and it has happened. It did happen in relation to someone who had access to children regularly and repeatedly and he abused that position of authority.

Obviously, we have to ensure that this is minimised. A number of processes were undertaken. One, of course, deals with the criminal sanctions. Others deal with the training and screening of those who work with children. These types of initiatives have been implemented. Following on from that, I have since met with the Chief Judge of the Youth Court, who is responsible for a number of things, including child protection matters and, obviously, dealing with youths in respect of when they engage in criminal conduct themselves. She is still, I suppose, getting used to the new legislation and the new process that is to occur in relation to child protection matters.

A very significant number of responsibilities of the minister were transferred to the chief executive. A very abridged process was introduced under the new legislation. She has brought to my attention that we are the only state, I think, that actually operates an abridged version of that without the assessment—

Members interjecting:

The SPEAKER: Order!

The Hon. V.A. CHAPMAN: I am not sure whether members are laughing at child protection. I hope not—

Members interjecting:

The SPEAKER: Order!

The Hon. V.A. CHAPMAN: —because it is a very serious issue.

Members interjecting:

The SPEAKER: Members on my left, I know it is late in the day; please. The Attorney-General has the call.

The Hon. V.A. CHAPMAN: What I would ask members to do, particularly—

The Hon. T.J. Whetstone: The Labor bully mentality—that's what it is.

The SPEAKER: Minister for Primary Industries, be quiet.

The Hon. V.A. CHAPMAN: —those representing the shadow attorney-general and, indeed, child protection, is to consider this in due course. What she brought to our attention was that, whilst we are one of the only jurisdictions to have an abridged version of the child protection process that cuts out the assessment period, that has come with some perhaps unintended consequences, and she has asked us to review that. It may be necessary to come back to the parliament again once we have diagnosed what she has presented to us and identified any areas that we might be able to improve.

Of course, we will continue to work with those who advise us, but also, particularly, those who have been vested with the responsibility to deal with child protection, namely the Youth Court. We will continue to keep the house updated in that regard. Otherwise, I commend the bill to the house.

Bill read a second time.

The SPEAKER: The member for West Torrens has sprung to his feet.