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

Second Reading

Adjourned debate on second reading.

(Continued from 21 March 2019.)

The Hon. K.J. MAHER (Leader of the Opposition) (16:11): I rise to indicate that Labor supports this bill. The amendments that this bill seek to resolve are that there is a risk, which is fortunately considered to be remote; nonetheless, closing any legislative gap that could affect the successful prosecution of child sex offenders is imperative and we on this side think the bill should not be delayed. The previous Labor government's Children's Protection Law Reform (Transitional Arrangements and Related Amendments) Act 2017 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 (Transitional Arrangements and Related Amendments) Act 2017 inserted a definition of approved carer into section 5 of the Criminal Law Consolidation Act, referencing the Children and Young People (Safety) Act, and replaced the term 'foster parent' with 'approved carer' in four sections of the Criminal Law Consolidation Act. These provisions included a list of who is deemed 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.

Labor accepts the government's statement that it has had advice that an inconsistency in terminology between the relevant acts has been identified since the passage of earlier bills. This amendment bill rightly seeks to address that technical oversight. We accept there is a concern that a change in the terminology used in the context of the Children and Young People (Safety) Act 2017 to refer to 'approved carer' rather than 'foster carer' could affect the interpretation of the term 'foster parent' in the Criminal Law Consolidation Act. As we have been advised, 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 could possibly not be regarded as a foster parent for the purposes of the Criminal Law Consolidation Act.

If such an interpretation was made it would mean that an approved carer would not necessarily be considered 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 that has been provided to us by the government that, if this interpretation were applied, the ability to prosecute foster parents for the sexual abuse of children in care aged 17 to 18 could possibly be impacted.

This was 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 of the current government to prosecute any person who seeks to harm or does harm to a child in care, whether they be a foster parent or anyone else.

We are advised that the risk of such a situation arising and such a sequence of interpretations being made is highly unlikely. Nevertheless, regardless of the unlikeliness of such a sequence of events and interpretations being made, we think that out of an abundance of caution this should be remedied. For those reasons, we fully support the bill.

The Hon. D.G.E. HOOD (16:14): I rise to speak in support of this bill which further demonstrates the Marshall Liberal government's commitment to protecting the young people in our state from harm and to ensure any perpetrators of child sexual abuse will be subject to the full force of the law.

The introduction of this bill was a swift response to an issue the Attorney-General was alerted to by parliamentary counsel late last year when it was identified that foster parents in South Australia could potentially escape prosecution for certain sexual offences committed against children in their care. Although the risk of this occurring was regarded as low, this government is not prepared to take any chances when it comes to the wellbeing of children and is determined to remove any technical discrepancies in current legislation that could impede the original intent of the provisions and their application.

Some members present may recall that the Children's Protection Law Reform (Transitional Arrangements and Related Amendments) Act received passage in 2017 with the purpose of making necessary amendments to legislation for the commencement of the Child Safety (Prohibited Persons) Act 2016 and the Children and Young People (Safety) Act 2017. A definition of 'approved carer' was inserted into section 5 of the Criminal Law Consolidation Act, referencing the safety act itself with the term 'approved carer'. The term was purported to replace the term 'foster parent' in sections 49, 50, 57 and 63B.

As outlined by the Attorney-General in the other place, due to a drafting error at the time, the change was not properly implemented and there is now concern a court could apply an interpretation of the provisions such that a person who has been made an approved carer under the safety act is not regarded as a foster parent for the purposes of the Criminal Law Consolidation Act. There lies the potential technicality.

The Criminal Law Consolidation Act, of course, features numerous offences of sexual abuse against minors. Whilst its provisions generally concern children under the age of 17 who are unable to lawfully consent to sexual acts, it also provides for circumstances in which the relationship between an alleged offender and victim warrants the extension of criminal liability where the complainant is aged between 17 and 18 years.

The impact of an approved carer not being considered to be a person in a position of authority in relation to a child aged 17 between which sexual activity has occurred would ultimately render the perpetrator exempt from criminal liability. These amendments we have before us today therefore seek to remove any ambiguity as to whom the provisions are targeting by inserting a definition of foster parent to include an 'approved carer' within the meaning of the safety act.

In the course of the preparation of the bill to address this particular drafting issue, I am aware a further gap in the categories of those who are defined to be in a position of authority was also identified. At present, these categories rightly include teachers, social workers and health workers, as well as those who provide religious, sporting, musical or other type of instruction. However, those who work in children's residential facilities are not specified.

Given that these institutions are staffed predominantly by youth workers and ancillary staff, an additional category is proposed to include people providing services to institutions established and operated by the Department for Child Protection pursuant to section 36 of the Family and Community Services Act 1972 and those which are licensed under section 105 of the safety act. I note that this is consistent with a similar existing provision pertaining to those who service correctional facilities and youth training centres due to their proximity to adolescents.

It is an unfortunate reality that, whilst we can be confident the vast majority of South Australians engaged in children's services have a genuine desire to see our young people prosper and reach their full potential, we need to be mindful that there are deviant individuals who may strategically position themselves where they have access to our most vulnerable children.

The most notorious example of this that comes to my mind is the case of Shannon McCoole, a South Australian who was employed in after school care and was sentenced in 2015 to 35 years' gaol after pleading guilty to various child sexual abuse offences committed between 2011 and 2014. It is evident that the risks of this inexcusable misuse of authority had persisted, and it was revealed just last year that 50 serious cases of alleged sexual abuse occurring in foster homes, state-run homes, last-resort housing or where children had been living with relatives, were reported to South Australia's Guardian for Children and Young People. This state of affairs is not acceptable to the state government and with over 3,600 children in state care, 1,400 of whom have been placed with foster parents, it is determined to ensure that each child is afforded every possible protection our laws can offer them.

I wish to take this opportunity to commend the hundreds of foster carers and service providers who have dedicated their lives to cultivating a safe and happy upbringing for many of our state's most underprivileged children. They do a tremendous job. Investing in the healthy development of our young people is imperative to ensure our next generation is comprised of high functioning, contributing members of the community, and they are fulfilling a crucial role to this end. I commend them for it.

This bill is designed to better ensure this sector deters the infiltration of would-be child sexual offenders and to bring to account those who choose to exploit their positions of power. I note that the Attorney-General has consulted with the Department for Child Protection, SA Police, the Director of Public Prosecutions, the Law Society of South Australia, the South Australian Bar Association and both the Guardian and Commissioner for Children and Young People, with no objections concerning these amendments.

I am pleased that the Labor opposition has also indicated its support for this bill, as we have just heard from the Leader of the Opposition. I look forward to its passage through this council in the best interests of all South Australians.

The Hon. R.I. LUCAS (Treasurer) (16:21): I thank the Hon. Mr Maher and the Hon. Mr Hood for their contributions to the second reading and their support of the bill.

Bill read a second time.

Committee Stage

Bill taken through committee without amendment.

Third Reading

The Hon. R.I. LUCAS (Treasurer) (16:23): I move:

That this bill be now read a third time.

Bill read a third time and passed.