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

Second Reading

Adjourned debate on second reading.

(Continued from 27 February 2019.)

Ms STINSON (Badcoe) (12:28): I rise as the lead speaker for the opposition on the Criminal Law Consolidation (Foster Parents and Other Positions of Authority) Amendment Bill 2018. Labor supports the bill, noting, of course, that the risk that it seeks to remedy has been identified as remote and highly unlikely to eventuate. Nevertheless, a risk, even one that is remote, when it comes to the successful prosecution of child sex offenders, is one that is worth remedying at the earliest possible opportunity.

The government asserts that the bill addresses an issue that has been identified that may impact on the ability to prosecute foster-parents and residential care workers for the sexual abuse of children in their care in certain circumstances.

The previous Labor government's Children's Protection Law Reform (Transitional Arrangements and Related Amendments) Act passed the parliament in November 2017, making necessary transitional amendments to legislation to commence the Child Safety (Prohibited Persons) Act 2016 and the Children and Young People (Safety) Act 2017. Amongst other things, the children's protection law reform act inserted a definition of 'approved carer' into section 5 of the Criminal Law Consolidation Act (CLCA), referencing the Children and Young People (Safety) Act, and replaced the term 'foster-parent' with 'approved carer' in four sections of the CLCA.

These provisions include a list of who is considered to be in a 'position of authority' for the purpose of prosecuting certain sexual offences involving a child of or above the age of 17. These amendments were proclaimed to commence on 22 October last year. We on this side accept the government's assertions that it has advice that an inconsistency in terminology between the relevant acts has been identified since the passage of the earlier bills. This amendment bill rightly seeks to address that technical oversight. As remote as the risk is, that has now been identified.

We accept that there is 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 impact on the interpretation of the term 'foster-parent' in the CLCA. A court could apply an interpretation that a person who has been made an approved carer under the Children and Young People (Safety) Act since 22 October last year is not regarded as a foster-parent for the purposes of the CLCA.

If such an interpretation was reached, it would mean that an 'approved carer' would not be considered to be 'a person in a position of authority' in relation to a child who has been sexually abused. That is important because the effect of being found to be in a 'position of authority' in those provisions is to extend criminal liability to include where the child is 17 years old and where criminal liability would otherwise arise only if the child was under 17 years of age. We accept the advice provided to us by the government that, if this interpretation were applied, the ability to prosecute foster-parents for sexual abuse of children in their care aged 17 to 18 could be impacted.

This is clearly not the intention of the act and such an interpretation would not be in keeping with the commitment of the previous government—and I am sure the current government, too—to prosecute any person who seeks to harm or does harm a child in care, whether they be a foster-parent or anyone else. Now, of course, we are advised that the risk of such a situation arising and such a sequence of interpretations being made by a judge is highly unlikely.

However, I know as a longtime front-line witness to our justice system that those accused of these most terrible offences against children often employ extensive and expensive means to defend themselves from such charges, as is their right in our system. There have indeed been instances of defence counsel in sexual crime cases seeking to take advantage of deficiencies or grey areas or so-called loopholes in our law, and this situation could transpire into such a loophole if given the opportunity.

We on this side of the house would never want to see that happen. We on this side of the house realise the pain that sexual abuse of any form, but particularly perpetrated against children, causes to victims, their families and our whole community. In my 15 years as a reporter, I spent many years in our courtrooms. I have spoken with countless victims about their experiences, including their experiences as their matters travel through our court system. A prosecution is a painful experience that revives and revisits the violent crime perpetrated against them.

For some, a conviction is secured. For many, a conviction is not, or a defendant is found guilty of a lesser offence or fewer offences than originally charged. For many victims, though not all, the sentence handed down is unsatisfactory. One can only imagine the grief and additional pain to be inflicted upon a victim and their family were a case to be lost due to a technical oversight such as this being used to let off an otherwise guilty offender. It would be simply unbearable, and it would be unjust. We cannot let that happen. That is why Labor supports this amendment. We hope to see its swift progression through this house and the other place.

It is important to note that, while this amendment seeks to ensure the smooth prosecution of foster-parents and other carers accused of sexual violence against children, the vast majority of carers do not and never will come into contact with this section of the legislation. The majority of those who volunteer to foster a child, care for a relative's child as a kinship carer or dedicate their careers to the care and protection of children do so because they genuinely care about kids. They do it because they have love to give, they have a home to share and they have expertise to benefit children—indeed, sometimes scores and scores of children—who most need our love and support.

They are the lifeblood of our child protection system and we simply could not do without them. They make a life-changing difference for children each day, and they tilt the trajectory of young lives towards a safer and more secure future. It has been most unfortunate in recent decades that the good name of these volunteers and workers has been tinged with the evil deeds of people who seek to do the exact opposite, people seeking not to support children but to prey on the very vulnerabilities that brought them into the state's care. That is a sad reality and a burden for our upstanding carers.

We owe it to ourselves to have the most robust prosecution processes that we can in order to protect the good reputations of the vast majority of carers who do the right thing by our vulnerable kids. During my time in our courts, I saw far too many cases of approved carers abusing the trust placed in them—in fact, even one is just too many. I was among those reporters to cover the case of Families SA worker Shannon McCoole as well as several other professionally paid carers, foster carers and others in positions of trust and authority who were to be convicted of abusing children in their care. Those people deserve to be exposed, tried and convicted. They deserve to be locked up so that they cannot harm another child placed in their care.

Even though this technical oversight in the drafting of legislation moving from one act to another may only present a remote risk of being realised, it is a serious risk with wideranging ramifications were it to come to fruition. For those reasons, Labor fully supports this correction. This bill also features other changes to further tighten the definitions and avoid any possible loopholes. The bill specifies that a carer who is granted temporary care of a child under section 77 of the new Children and Young People (Safety) Act is captured by the definition of a person in a position of authority.

The bill is also retrospective to 22 October last year, the date when the second and major phase of Labor's new act took effect. This, of course, is necessary and prudent. It would be no fix at all to allow a loophole of some months. Even crimes that have not been charged at this point may yet be detected as having occurred in this period of time, and defendants may seek to take advantage of this discrepancy. Fully closing the loophole is necessary, and Labor supports this amendment.

Finally, the bill also closes a possible gap in the categories of people listed as being in positions of authority for the purpose of extending criminal liability in relation to children in care aged 17 to 18. Currently, in all other relevant legislation, the age of consent is 17. However, the legislation extends that period by a year for children in care when proving elements of sexual abuse against them by people in positions of authority.

The list of people in declared positions of authority does not currently specifically name residential care workers working at either state-run or non state-run facilities. Clearly, the new act was intended to cover residential care workers, but we understand that adding this category specifically, rather than relying on a court to make an interpretation of 'foster carer' capturing all types of carer, is a sensible measure. Labor supports the insertion of residential care workers into the list of people in a position of authority.

Everything we can possibly do to protect children must be done. Everything we can possibly do to detect and prosecute those who do them harm should be done. No matter how small the risk might be, any risk that could be reduced should be. I commend the bill to the house.

The Hon. R. SANDERSON (Adelaide—Minister for Child Protection) (12:38): I rise to speak on the Criminal Law Consolidation (Foster Parents and Other Positions of Authority) Amendment Bill 2018. This bill is yet another way the Liberal government is both tidying up legislative drafting oversights dating back to 2017 and strengthening the law relating to offences against children in care. I commend the Attorney-General for bringing the bill to this place, and I commend the opposition for their support. This bill seeks to make two amendments. The first is to clarify the definition of the phrase 'foster-parent'. The second is to include as a category of 'position of authority' a person employed or providing services in licensed children's residential care facilities.

The Criminal Law Consolidation Act creates, among a raft of offences, offences of sexual abuse against minors. While these provisions generally create offences against a child who is under the age of 17 and unable to legally consent to sexual acts, there are some circumstances in which the relationship between the perpetrator and the complainant necessitates the extension of criminal liability to include when a complainant is aged between 17 and 18 years old.

The extension of criminal liability is met when the relationship is one where the perpetrator is in a 'position of authority' to the complainant. The act provides a list of circumstances which would deem a person in a 'position of authority', including where a person is, among other relationships, a foster-parent of the child. At the time of the full implementation of the Children and Young People (Safety) Act on 22 October 2018, the official language and title of those who care for our most vulnerable children were changed.

Those who are caregivers to children and young people under the guardianship of the chief executive are, since 22 October 2018, formally known as 'approved carers', rather than by the previous title of 'foster-parents'. While it was initially anticipated that there be amendments to the Criminal Law Consolidation Act at the time the Children and Young People (Safety) Act was fully implemented, for the reasons the Attorney-General set out in her second reading explanation on 28 November last year that did not occur.

This bill firstly seeks to address any potential ambiguity in the definition of 'foster-parent' to ensure that both an approved carer of the child and a person in whose care the child is placed under section 77 of the Children and Young People (Safety) Act, such as a temporary care arrangement, are included. The second proposed amendment seeks to expand the category of a 'person of authority' to include anyone who is employed or provides services to licensed residential facilities who has duties in relation to a child, as well as to anyone in the administration of the legislation licensing those facilities who has duties in relation to the child.

Although it is well documented that family-based care is preferable to residential care for children who cannot live at home, and although I am committed to the expansion of family-based care, there will always be a place for residential care facilities for children and young people who are unable to be placed in family-based care. In my view, there can be no dispute 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. Consequently, the second proposed amendment not only closes an obvious legislative loophole but is sensible and necessary.

As the state's first dedicated child protection minister, I wholeheartedly support any legislative amendment that will:

enhance provisions to protect our most vulnerable children;

serve as a deterrent to those who consider embarking on such abhorrent behaviour;

prevent the failure of a prosecution on the basis of ambiguity; and

ensure clarity to be able to prosecute and punish those who engage in the behaviour.

I also strongly support the proposed retrospectivity of this bill. I am not aware of any cases that will be affected by the commencement date of 22 October 2018.

I am proud to be part of this hardworking Liberal government which continues to look at opportunities to further protect our children and young people, which prioritises their safety and wellbeing and which is working hard to ensure that legislation is in place where necessary. I commend the bill to the house.

Mr PATTERSON (Morphett) (12:43): I rise today also to speak on the Criminal Law Consolidation (Foster Parents and Other Positions of Authority) Amendment Bill 2018. The bill seeks to rectify an issue which, due to the current legislative 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 some certain circumstances.

As the Attorney-General outlined in her second reading explanation, it came to the attention of her department that a drafting error within the Children and Young People's Safety Act in how the act refers to 'approved carer', rather than 'foster carer', could impact on the scope and application of the term 'foster-parent' within the Criminal Law Consolidation Act. If I reflect briefly on the Children and Young People's Safety Act, section 4, in the early stages of the act, makes some really key points; that is, the Parliament of South Australia recognises and acknowledges that children and young people are valued citizens of the state.

The future of this state is inextricably bound to the wellbeing of all its children and young people, and it is of vital importance to the state and all its citizens that all children and young people are given the opportunity to thrive. Not only in this bill before us but in so many of the other bills we debate in this chamber, and also in the work all members of parliament do in their electorates and in the state at large, that is a key theme—to really try to progress this state going forward and act in the interests of not only the people now but also future generations.

The act goes on to state that it is the duty of every person in this state to safeguard and promote certain key outcomes for children and young people in this state, such as to keep them safe from harm, to do well at all levels of learning to give them skills for life, for children to be able to enjoy a healthy lifestyle and, importantly, for them to be active citizens who have a voice and influence. They are key aspects that we try to foster in this state.

One important measure of that is the foster care system, which is vitally important and a way that the parliament and the state of South Australia can ensure that all children are given the opportunity to grow up in a safe environment, which this bill seeks to reinforce, as we have heard. It is a minor risk, but a risk nonetheless. The risk of this occurring is considered to be extremely low, but the confusion really needs to be rectified as soon as possible to ensure that some of our state's most vulnerable children are adequately protected within our criminal codes.

The amendments in this bill really clarify the criminal liability for an offence against a child aged between 17 and 18 years and in the care of foster-parents. Whilst there are some incredible stories of individuals and families opening their arms to these vulnerable children, there are also abhorrent instances of sexual abuse that need to be addressed and protected against properly by South Australia's criminal code, and that is why this bill has been introduced by the Attorney.

It is really important to acknowledge that the vast majority of foster carers should be held in very high regard for the care they provide vulnerable children. The role of a foster carer is certainly challenging, but it is also very rewarding, not only for the foster carers but certainly for children in their care. Fostering can be a short-term arrangement, ranging from just a few days to eventually becoming a permanent arrangement in some circumstances.

The children who require foster care are usually victims of abuse or neglect, so the role of a foster carer often extends beyond just housing and feeding children to also guiding them through overcoming the difficulties they have faced in their past and trying to counteract those and give them a future going forward.

Certainly a foster-parent must be willing to fully accept the child as part of their family and be up for the challenge, advocating for that child's particular needs and caring for both their mental and physical wellbeing. There is no denying that it takes a very special person to become a foster carer, to open up their life, their house and also their family—for they may have children themselves—to a young stranger who is definitely in need. These individuals, couples and families must be acknowledged for the incredibly hard work they do for the South Australian community.

For those of you who occasionally, in amongst all your other electorate duties, get the chance to go to the movies, I had the opportunity to see a movie currently showing called Instant Family, which addresses the issues and challenges, as well as the benefits, of foster care. The two parents, played by Mark Wahlberg and Rose Byrne, were a childless couple who took in a young teenager. Of course many people's hearts go out to the very young children who need foster care, but this story was around teenagers who, while they look big and as if they do not need as much care, are quite often the ones with the hardest battles and most personal demons to work through.

The foster care of teenagers can provide a life-changing experience for them, to know someone is there who loves and cares for them. This movie also brought home the fact that with foster care it is often not just the one child but their siblings as well and the importance of trying to keep these family units together. That might be challenging, and quite often the eldest of the siblings has to take on a parental role. They can become very protective, and it really is important that the foster care they get is loving and caring not only for them but also for their siblings.

Last week, I had the opportunity to visit the new home of Time for Kids at Hindmarsh, not far from where Adelaide United plays. They have joined up with Relationships Australia SA. I was joined by the Minister for Human Services, the Minister for Child Protection and, towards the end, also the member for Badcoe. Time for Kids has been operating for over 50 years and offers volunteer respite foster care to disadvantaged children.

It was great to hear children's stories about the positive influence that Time for Kids carers have had on their lives and how that care had positively impacted on their levels of self-esteem and confidence as well as their sense of identity. That experience helped expand the children's understanding of the options and pathways open to them, because it is important to realise that children in foster care have sometimes only been shown one way of life. Sometimes it is just a matter of seeing how other families love and support each other as a family unit, what their aspirations are, seeing that there are other ways of going about things and that life can be limitless if approached in the right way.

The experience certainly helped their understanding, but it also built on their resilience which, in turn, can help to overcome and neutralise some of the risk factors typically associated with juvenile offending. You can get a downward spiral, but good foster care, good foster-parents, can really help put children on another track. These respite foster carers are supported by the professional Time for Kids staff, who have many years of experience in child development as well as family support for the carers.

The launch of the Time for Kids new home in Hindmarsh was also an opportunity to thank and acknowledge the previous head of Time for Kids, Jennifer Duncan, for her past efforts as well as for her vision to join Time for Kids to Relationships Australia SA and build on the programs they offer. At the launch, the new program manager for Time for Kids, Nikki Hartmann, outlined the synergies between the two organisations. Alongside Nikki was the hardworking staff: Sheri Borlace, Gabrielle Comey, Rachel Nairn and Sarah Warland.

The event certainly gave real insight into the genuine affection that the staff have for the children. You could see them interacting with the kids and the rapport between the children and the staff but also the rapport this professional staff had not only with children but with their families and the respite foster carers. You could really understand the positive experience that respite foster care has brought to these children and also foster care in general.

At a broader level in South Australia, as of 31 July 2018, 3,680 children were in state care with 1,414 being cared for in foster households. In September 2018, Connecting Foster and Kinship Carers South Australia encouraged carers to share their experiences and provide some insight into why they signed up for the role. The results were really astounding in a way because it showed that there were 165 respondents who had cared for more than 1,500 of South Australia's most vulnerable children. That is certainly a very heavy workload for so few, and so I take this opportunity to encourage more people to get involved. It is a challenging job but, as I said before, it is very rewarding.

I now return to the bill that we have before us and mention that it also addresses a further gap in the category of people who are defined to be in a position of authority. The position of authority provisions effectively extend 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 category setting out who is in a position of authority includes a parent, a step-parent, a guardian or a foster-parent. It also includes teachers, social workers and health workers who provide services to a child and also those who provide religious, sporting, musical or other instruction to a child, amongst other categories.

As you can imagine, that touches a broad range of people in this state. There are so many volunteers who help out in many activities, as I said before, with the aims of the original act—the Children and Young People (Safety) Act—providing an active role for our youth. However, there are people who work in children's residential facilities who are not currently specified to be in a position of authority in these provisions.

While the family-based care of foster-parents certainly is preferable for some of the reasons that I outlined earlier in terms of seeing the dynamics of the family unit and how they interact and the time spent together—even if it is just reading a book before bed, the bond that can be built up is so important—unfortunately, there are some occasions when residential-based care is necessary. So it is really important to ensure that similar protections are put in place for children who are being cared for in children's residential facilities, as well as those who are being cared for by foster-parents.

These facilities are classified as either a licensed children's residential facility within the meaning of the Children and Young People (Safety) Act 2017, or a residential care facility or other facility under section 36 of the Family and Community Services Act 1972. Being mindful of the time, I seek leave to continue my remarks.

Leave granted; debate adjourned.

Sitting suspended from 12:59 to 14:00.