CHILDREN'S PROTECTION (HARBOURING) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 6 March 2013.)

The Hon. J.S. LEE (21:20): I rise today to speak on behalf of the Liberal opposition in relation to the Hon. Ann Bressington's Children's Protection (Harbouring) Amendment Bill 2012. The opposition acknowledges the ongoing advocacy by the Hon. Ann Bressington in relation to child protection and her passion for challenging the government to have a deep reflection about how they manage their agencies and questioning why the government is not addressing the important issues.

The bill titled Children's Protection (Harbouring) Amendment Bill 2012 seeks to address the concerns raised by the Hon. Ann Bressington with regard to the power being held by the Chief Executive of Families SA in section 52AAB of the Children's Protection Act 1993. Section 52AAB of the Children's Protection Act states that the chief executive of Families SA has the authority to issue a directive to an adult not to harbour, conceal or communicate with a child under the guardianship of the minister. The Hon. Ann Bressington proposes to remove the final decision from Families SA and instead place the responsibility on the South Australia Police. The bill will replace the words 'chief executive' with the words 'senior police officer', defined to mean an officer at or above the rank of inspector.

Additionally, the Hon. Ann Bressington stated in her second reading speech of this bill that she would like to provide consistency with other harbouring offences introduced by the Statutes Amendment (Children's Protection) Act 2009. She has also included a provision that would require a breach of a directive to be prosecuted by SAPOL rather than the crown on behalf of Families SA. This particular provision, according to the Hon. Ann Bressington, will allow SAPOL to determine whether they have evidence for a prosecution for a breach of this order rather than give Families SA the opportunity to use it as a case management tool.

In the Hon. Ann Bressington's argument, making the police responsible for the prosecution of a breach of direction will also act as a further safeguard against the inappropriate use of these powers. The opposition has sent the proposed bill to all the major and smaller stakeholders and providers within the sector seeking their input. I would like to outline some of our findings.

The majority of the stakeholders that we consulted believe that the current provisions already allow the exercise of section 52AAB to be tested in a court of law if the exercise of that power is in dispute. All the facts and issues can be presented and thoroughly examined in a court of law. The Law Society in their submission stated that the power presently vested in the CE of Families SA exists for a number of reasons. It outlines that the statutory powers and functions of the chief executive in the act in respect of a child protection are to use their expertise in respect of child protection where the department monitors, investigates and gathers information and evidence about a particular child at risk and, thereby, has the mechanism and protocols for initiating child protection action in specific cases, including the giving of such notices. Due to privacy, sensitivity and confidentiality issues, they may not permit dissemination of information about a child by Families SA to SA Police.

There were many questions around operational issues. For instance, under the Children's Protection Act 1993, Families SA is likely to have confidential information about affected children at risk. There are no provisions in the act to permit disclosure of such information to SA Police. Many stakeholders concur with the Hon. Ann Bressington's concerns with regard to the professionalism of some Families SA staff decision-making. There may be poor decisions made from time to time by individual staff but there is nothing to suggest that this is any more prevalent in Families SA than any other large organisation, including the police department. Many believe that there is no reason to suggest that decisions reached by police in relation to the risk of harm from harbouring would be any better or worse on average than those reached by Families SA.

Stakeholders within the sector believe that when dealing with clients under the guardianship of the minister that the best outcomes are achieved when there is a clear and open communication channel between the client's case manager and Families SA. Collectively, all the stakeholders we have consulted believe that the amendments suggested by the Hon. Ann Bressington will not solve the problem. They believe that there would be more benefit in fixing the procedures and rectifying the conducts within Families SA in the way they have handled these issues, rather than attempting to do it through legislation.

Based on the reasons outlined in my contribution today, the opposition indicates that we do not support the bill. However, we would like to acknowledge the longstanding advocacy of the Hon. Ann Bressington in child protection by tabling the bill in this chamber. We acknowledge that she continues to challenge the government as well as honourable members in this place to review practices and legislation with the intention of creating a safer environment to legally protect vulnerable children in this state.

The Hon. T.A. FRANKS (21:26): I rise on behalf of the Greens tonight to support the bill before us put here by the Hon. Ann Bressington, the Children's Protection (Harbouring) Amendment Bill 2012. I do so noting not only the opposition's contribution just now but also the contribution of the Hon. Russell Wortley previously on behalf of the government. In that contribution, the government's position was that this current incarnation of the practice of the chief executive of Families SA's department, DECD, being able to exercise this power in terms of issuing directions with regard to harbouring was right and proper because it was indeed as recommended by Commissioner Mullighan with regard to child protection.

On review, the matters where Commissioner Mullighan addressed areas of child protection with regard to harbouring were those of quite a serious nature and quite rightly so would continue to be addressed under the Hon. Ms Bressington's bill should it pass this chamber, and they were very real issues. But what I would point out to the government is that you have amended what Commissioner Mullighan first recommended with regard to harbouring.

Under the original definitions, the standard was 'serious danger'. Should serious danger be able to be proved, then it probably was fit and proper that a Families SA staff member as well as South Australia Police could act in that case. However, in 2009 the minister recommended that that definition be downgraded to also include the category of a risk to the wellbeing of the child. So, now we have a situation where a Families SA member can, under the definition of a risk to the wellbeing of a child, put often family members and others under the jurisdiction of the harbouring provisions. Indeed, they could be facing up to four years' imprisonment for this.

People have ended up in courts and have been able to have the crown prosecute those cases rather than the police and, indeed, what we are looking at is a proposal here from the Hon. Ann Bressington to simply put the power where we have expanded the definition of harbouring to a much lesser standard only in the hands of the police and, indeed, senior police. The Greens think that is fit and proper. We are quite convinced that there have been enough cases and, while they are only a handful of cases, that is enough to convince us that perhaps we should either look at redefining the standard that we are applying here or, in short, restricting the ability of a social worker who a family probably goes to looking for support to be able to apply this provision.

Families SA social workers and staff should be in the position of supporting these families and families should not be in fear that this harbouring provision will come down on their heads. I think it is actually detrimental to the work of Families SA to have that ability there within the realms of their power because it will lessen trust that families might place in them if they know that this provision could be provided. Should there, in fact, be a proven risk to the wellbeing of the child, surely that should be the jurisdiction of the police and for the police to prosecute in that case, not only to issue and direct but to ensure that the direction is taken seriously.

Certainly, there have been cases where, because it has come from the Families SA staff, the seriousness of the direction has not been realised at first, and that has been remarked upon in our courts when these matters have ended up in the courts. The magistrates have said that is why they have not punished those who have had to go through that horrific process of getting all the way to the courts.

I think the government needs to take a long, hard look at its original position and realise that it has lessened the standard under the definition; perhaps the government should tighten up who gets to implement it.

The Hon. A. BRESSINGTON (21:31): I thank all members for their contribution to this bill. Along with the Hon. Tammy Franks, I note with interest the second reading contribution from the Hon. Russell Wortley about the idyllic way in which this current law operates. I, too, concur that, in theory, this process should work. However, my issue is, and has been for a very long time, that information is fabricated on a frequent basis by some social workers to further an agenda which is not in the best interests of the child.

I have had numerous presentations to my office, as members in here know, from parents and also from children in state care, who frequently run away from those care facilities simply because they want nothing more than to be with their family. Those parents do run the risk of being charged under this harbouring law as it stands for doing nothing more than doing what comes naturally, which is trying to protect their children from harm on the street and letting their children know that, regardless of what state workers tell those children, their family stills loves them and still wants them and that their family will never give up fighting for them.

This is a very sad state of affairs, which has existed in this state now for some decades. There have been numerous inquiries into this department under its various names, going back, I think, as far as the 1970s. It is quite ironic to read back over those inquiries and those reports to see that absolutely nothing really has changed. We may have changed it in the world of paper policy, but in action on the ground, nothing has changed.

We do have a department which has far more power than our police have and, according to professionals in the last inquiry into Families SA, it frequently abuses those powers. It is obvious, after the number of bills I have put forward in this place on child protection, this government has absolutely no intention at all of fixing a systemic and generational problem within the department and to rein in workers who abuse their power, who destroy families and who destroy children's lives.

The council divided on the second reading:

Majority of 6 for the noes.

Second reading thus negatived.