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

Second Reading

The Hon. R.I. LUCAS (Treasurer) (16:14): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

The Bill amends the Criminal Law Consolidation Act 1935 (CLCA)to address an issue that has been identified which may impact on the ability to prosecute foster parents and residential care workers for sexual abuse of children in their care in certain circumstances.

The Children's Protection Law Reform (Transitional Arrangements and Related Amendments) Act 2017 (Children's Protection Law Reform Act) passed Parliament on 28 November 2017. It made necessary transitional and consequential amendments to a range of legislation as required to commence the Child Safety (Prohibited Persons) Act 2016 and the Children and Young Person (Safety) Act 2017 (the Children and Young Person Safety Act).

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 referencing the Children and Young Person (Safety) Act, and purported to insert the term 'approved carer' after the term 'foster parent' in sections 49, 50, 57 and 63B of the CLCA. Those 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 years of age. These amendments were proclaimed to commence on 22 October 2018.

However, shortly prior to the introduction of the Children's Protection Law Reform Act into Parliament, the Statutes Amendment (Attorney-General's Portfolio) (No 2) Act 2017 amended sections 49, 50, 57 and 63B of the CLCA, with the result that the internal numbering of those provisions was changed. Unfortunately that change was not picked up before the Children's Protection Law Reform Act proceeded through Parliament.

Consequently, the intended amendments to sections 49, 50, 57 and 63B of the CLCA were unable to take effect on 22 October 2018 so the sections continue to refer only to a 'foster parent' and do not refer to an 'approved carer'; while the insertion of the definition of 'approved carer' did commence on 22 October 2018.

There is now a concern that, due a change in the terminology used in the context of the Children and Young Person (Safety) Act to refer to approved care rather than foster care within South Australia that this could impact on the interpretation of the term foster parent in the CLCA.

That is, a court may apply an interpretation of the provisions, such that a person who has, since 22 October 2018, been made an approved carer under the Children and Young Person Safety Act is not regarded as a foster parent for the purpose of the CLCA. This would mean 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.

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 old 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 aged 17 years old in their care would be impacted.

The risk of this occurring is considered to be very low. In the absence of a legislative definition, a court would ordinarily be expected to continue to interpret the definition of a 'foster parent' according to its ordinary meaning, rather than by reference to the Children and Young Person (Safety) Act.

Prior to the proposed amendments, the term 'foster parent' was not defined in the CLCA, whether by reference to relevant child protection legislation or otherwise. The section referring to 'foster parent' also references 'parent', 'step-parent' and 'guardian'. It is clearly directed towards a person acting in loco parentis of the child, irrespective of the formality of the arrangements. 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 parent in any event.

However, to ensure that there is absolutely no ambiguity about whether that should be the case, the government has brought this Bill to address that risk.

Since identifying this issue, there has been further consideration of the amendments which were initially intended by Parliament by the Children's Protection Law Reform Act.

The existing term 'foster parent' in the CLCA has a broader application than the proposed substituted term 'approved carer'.

However, to remove any doubt about whether an approved carer is intended to be regarded as being in a position of authority in respect of the relevant CLCA provisions, it is intended to clarify that the term foster parent includes (but is not limited to) an approved carer. The Bill also specifies that a person in whose temporary care a child is placed pursuant to s 77 of the Children and Young Person (Safety) Act is included.

It is the Government's view that this will ensure that all approved and temporary carers are clearly captured as being in a 'position of authority' in the CLCA provisions, while ensuring that the broader application of the term foster parent that previously applied, continues to apply.

Out of an abundance of caution, these amendments have been drafted with retrospective operation, so that they will be taken to have commenced on 22 October 2018—being the date that the original amendments were intended to take effect. In the event that any relevant offending has occurred since this date, retrospective application of the Bill will put beyond doubt that any such offending is intended to be captured by the relevant provisions.

In the course of preparing this Bill to address this drafting issue, a further 'gap' in the categories of people who are defined to be in a position of authority was identified.

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 SA). That is, it extends criminal liability for people who are in a position of authority in relation to the child if the child is between 17 and 18 years of age.

The categories setting out who is in a position of authority includes teachers, social workers and health workers providing services to the child, and those who provide religious, sporting, musical or other instruction to the child (amongst other categories). Obviously, it also includes '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. We are fixing that.

There are two types of children's residential facilities established under child protection legislation. These are:

Facilities established under section 36 of the Family and Community Services Act 1972 These are established and operated by the Department for Child Protection; and

Facilities licensed under s105 of the Children and Young Person Safety Act. These are predominantly non-government departments.

Both of these types of 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 the facilities. These people are unlikely to fall within the definition of 'foster parent'.

Accordingly, the government has determined that it is appropriate to separately provide for this category of person as being in a 'position of authority' in each of sections 49, 50, 57 and 63B of the CLCA. A similar provision already exists in respect of people providing services in correctional institutions and youth training centres; this inclusion is therefore consistent with the existing approach to protecting vulnerable children in institutional environments and will ensure that those who might prey on our vulnerable young people are able to be held to account.

Mr President, I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Criminal Law Consolidation Act 1935

4—Amendment of section 5—Interpretation

This clause inserts a definition of 'foster parent' into section 5 of the principal Act to reflect changes to terminology made by the children's protection law reform exercise.

5—Amendment of section 49—Unlawful sexual intercourse

This clause amends section 49 of the principal Act to include the specified persons as people who are in a position of authority in respect of a child.

6—Amendment of section 50—Persistent sexual abuse of child

This clause amends section 50 of the principal Act to include the specified persons as people who are in a position of authority in respect of a child.

7—Amendment of section 57—Consent no defence in certain cases

This clause amends section 57 of the principal Act to include the specified persons as people who are in a position of authority in respect of a child.

8—Amendment of section 63B—Procuring child to commit indecent act etc

This clause amends section 63B of the principal Act to include the specified persons as people who are in a position of authority in respect of a child.

Debate adjourned on motion of Hon. E.S. Bourke.