Bills

Children and Young People (Safety and Support) Bill

Committee Stage

In committee (resumed on motion).

Clauses 55 and 56 passed.

Clause 57.

Mr TEAGUE: I have skipped over the first couple of clauses dealing with court proceedings specifically in relation to Aboriginal and Torres Strait Islander children and young people. I will get to the subject of clause 57, which stipulates that there are no orders to be made unless a family group conference has been offered. I think it might be a reversion to the question of how that is going to be dealt with from an evidential point of view.

It is sort of like the chicken and egg: has the child in question been the subject of the active efforts to identify their aboriginality? If so, the court will not make an order if the aboriginality of the child has been established unless the family group conference has been offered—so far so good. But if a court otherwise proceeds to make orders in circumstances where the child is not Aboriginal, what onus is there on the court from the beginning to turn its mind to the ascertainment of aboriginality for all children before making any orders? How much is this at the feet of the court?

It is straightforward enough to have an Aboriginal child come to the court and for the court to say, 'An Aboriginal child, therefore I won't make any orders until there is a family group conference.' But if that question has not been determined, the court is being asked to make orders in the ordinary course, and a question arises: 'Hang on, have you determined aboriginality?' To what extent is that at the feet of the court and who is going to satisfy the court as to the aboriginality or not of every child prior to the possible making of orders that might be prohibited under clause 57?

The Hon. K.A. HILDYARD: There are three things: first of all there is the presumption that we speak about, then identification is obviously the precursor, but also in relation to any child particular evidence would be put before the court in relation to the circumstances of that particular child.

Mr TEAGUE: Yes, that is true, and that might be as much as can be said. The clause is proscriptive: there is the possibility that the court is in breach of the act in circumstances where it is making an ordinary order. The court says, 'Alright, this child is before the court. Has there been a family group conference?' 'No, and these are the circumstances in which that has not happened.' 'Alright, we will go ahead and make orders.' The court is not to know that the child's aboriginality has not been determined. The court is proceeding as if the child were not Aboriginal. Is it a matter, therefore, that the court is going to have to turn its mind to, in every case before making any order, where it is clear that a family group conference has not occurred?

The Hon. K.A. HILDYARD: No.

Mr TEAGUE: I am just not sure that that is right in that given that clause 57 is a straightforward prohibition, where there is not positive evidence led as to the non-aboriginality of a child in the absence of a family group conference, I query the question as to whether the court is going to have to cover that ground, in which case the court is going to have to conduct an inquiry into the aboriginality of a child or not in each case. It is not a matter of being pedantic; it is just it is the form of the clause.

The Hon. K.A. HILDYARD: I think the court will of course, in any particular case, make the inquiries of the department that it sees fit to do so in the particular circumstance. There would be circumstances where it is clear they do not need to, but in other circumstances I am sure they will make those inquiries as they see fit.

Clause passed.

Clauses 58 to 61 passed.

Clause 62.

Mr TEAGUE: Clause 62, at the commencement of part 5—State Strategy for the Safety and Support of Children and Young People: I simply draw attention to clause 62 in the broader context of part 5 and invite the minister to address any aspects of importance in relation to changes in the structure of the application of part 5 in the new bill, the new act, as it will be.

The Hon. K.A. HILDYARD: This is a new section, and I think I have covered this at length in my second reading speech but also in an earlier answer in the course of this debate, so I do not have anything further to add.

Clause passed.

Clauses 63 to 71 passed.

Clause 72.

Mr TEAGUE: This is the second clause in part 7 and is introducing the new threshold of significant harm. I refer, in this frame, to the definition that has been addressed at clause 4 already. In terms of the establishment of the threshold, I think much has been covered at clause 4, in terms of what the threshold means and how that will play out.

In terms of the categories of person who are prescribed persons and the circumstances in which they form the relevant suspicion, what consideration has the government given in terms of the scope and the context in which the suspicion has relevantly formed? Is the government satisfied that that range of persons and the settings are where they ought to be?

The Hon. K.A. HILDYARD: I think this is what the member is drawing our attention to. There is obviously the inclusion of allied health professionals and there is a long list of new categories of persons. In answer to your question, we are satisfied with that list, bearing in mind that nothing stops any person from making a particular report when there is a suspicion of a risk of significant harm. Also, nothing would preclude at a later time adding particular new classes of people as required.

Mr TEAGUE: I note in relation to the discretion that applies also to a prescribed person at subclause (3) and so on, there is provision for that. As was drawn to my attention, I appreciate subclause (7) and the provision in relation to liability.

I refer specifically to a concern raised by SACOSS in this context, and I get back now to the threshold. It is a concern that is not unique to SACOSS, but I recognise that, having been raised by it, there is an experience where there is a history of multiple reports that are being made, each of them might be innocuous almost, certainly below the newly introduced threshold, but there are many of them, and they all provide an indicative picture, which would not be brought to attention without the accumulation of them. Is the government satisfied that accumulation of multiple small indicia is still able to be addressed, notwithstanding the threshold that is now to be applied in terms of mandatory reporting?

The Hon. K.A. HILDYARD: I think we spoke about that particular matter earlier when I spoke about the definition around 'cumulative harm' in relation to the provisions about 'at risk of significant harm'. Cumulative harm is an area that we are deeply interested in. We have sought advice about that from various bodies, and it is an area that we will continue to look at, and we will certainly be looking at how that is contemplated as we go through implementation and educate various new persons who are named in the legislation but also existing people as well.

Clause passed.

Clauses 73 to 78 passed.

Clause 79.

Mr TEAGUE: Clause 79 is concerned with random drug and alcohol testing. My understanding is that that is certainly drawn from the 2017 act but, in turn, it has had its genesis in an amendment that was in the context of the 2017 act, motivated I think by a member of the other place. That then carries on into clause 80.

I just query whether or not the government has satisfied itself as to the proved utility of that regime and if there is a frank answer that is possible, that it remains at the margins of utility but it has been retained out of an abundance of caution, or whether, in fact, on review it has work to do and, if so, what is that?

The Hon. K.A. HILDYARD: Two things: I am informed it is a clause that is frequently relied on in Youth Court proceedings. This clause, yes, was born from that 2017 or the existing act, but it also does ensure that the clause now supports all of the relevant types of testing that are currently available and which may be available in the future, bearing in mind that there are developments in terms of what can be tested and how, etc.

Clause passed.

Clauses 80 to 90 passed.

Clause 91.

Mr TEAGUE: Clause 91 is the first clause of part 8, which deals with the ordinary regime for family group conferences. At the outset I again note the proved-up efficacy of family group conferences. Clause 91 deals with the application of the part, which is wideranging. I ask just at the outset, and I will not repeat it in terms of the discretionary aspect that remains for a part 8 family group conference, is there any particular single reason why family group conferences the subject of part 8 are not mandatory in the same way as they are in part 4?

The Hon. K.A. HILDYARD: I think I have already outlined that, but we made a very clear decision in line with the consistent advice from SNAICC, from SAACCON and through the discussions at a national level to ensure that there was that taking into account of that advice that required offering to Aboriginal and Torres Strait Islander children and young people.

Of course, in this provision there are family group conferences available to other children and young people, and this clause makes it very clear that that applies whether or not they are in care.

Mr TEAGUE: Again, I do not know that this has been covered in exactly the same way; if it has, then fine. Is it in any way a matter of budgetary consideration or are there other factors that are in play that are entirely qualitative? Is there a budgetary factor? If so, fine, there is a cohort for which there is an extra effort, as it were, to provide a mandatory family group conference, but if there is a broader qualitative criterion and it is nothing to do with budgetary considerations, then I just ask if one or other, or both, plays into it.

The Hon. K.A. HILDYARD: It is about that extra effort for that particular group of children and young people.

Mr TEAGUE: I might just indicate by way of anecdote—again, a nod to SACOSS and its feedback—I understand that by reference to the Woodville office there has been no case where a child has been returned following a family group conference. This is an unusually shining example, but proves up the great worth of the family group conference.

The Hon. K.A. HILDYARD: Thank you.

Clause passed.

Clauses 92 and 93 passed.

Progress reported; committee to sit again.