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House of Assembly - Fifty-First Parliament, Third Session (51-3)
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STATUTES AMENDMENT (CHILDREN'S PROTECTION) BILL

Second Reading

Adjourned debate on second reading.

(Continued from 16 July 2009. Page 3629.)

Ms CHAPMAN (Bragg) (12:20): This bill was introduced by the Attorney-General on 15 July this year, contemporaneous with the tabling of the Children's Protection (Implementation of Report Recommendations) Amendment Bill 2009 by the Minister for Families and Communities. Both these bills purport to effect a number of the recommendations made by Commissioner Mullighan, which arose out of his reports to the government—

Members interjecting:

The DEPUTY SPEAKER: Order! Conversations will occur outside.

Ms CHAPMAN: —and which were ultimately presented in this parliament on 1 April 2008, as well as a further report in respect of questions of abuse on the APY lands. These matters resulted in the government presenting a report to the parliament on which of the recommendations it proposes to implement. Subsequent to that there has been provision of some information—particularly via the government's website—regarding how the government has progressed the implementation of a number of the recommendations that did not require legislative attention.

This particular bill is a very important one within that spectrum of reform arising out of Commissioner Mullighan's recommendations. It has been quite long coming, and the opposition is a little disappointed that some of its aspects were not introduced earlier, particularly given the opposition's public commitment to and support of those parts of this bill which came directly from the commissioner's recommendations. Indeed, the opposition pointed out that some of Commissioner Mullighan's recommendations were consistent with the Liberal Party's 2005 policy prior to the last election. So, it is disappointing that we have had to wait so long for this bill to be introduced.

However, there is one aspect of this bill which is not a recommendation of Commissioner Mullighan's and which, we understand, has been developed by the government—in particular, its Department for Families and Communities. That does not mean it is a bad thing, but I make the point that the child protection restraining order regime proposed under this legislation does not have its origins in the Mullighan report and does not form the basis upon which he presented his recommendations for implementation by the government. This is an initiative of the government's own, and there are aspects of it about which the Liberal opposition is concerned.

One of those aspects has been the subject of discussion with other parties, and the opposition has received a copy of an amendment drafted by the Hon. Ann Bressington. That is a matter we have discussed with her office and, as we understand it, the government has indicated that it will support the amendment, as will the opposition. That certainly covers one of the aspects we were concerned about.

I indicate to the house that the opposition will support this bill. It amends the Children's Protection Act 1993, the Criminal Law (Sentencing) Act 1988 and the Summary Procedure Act 1921 and essentially establishes measures to prevent and punish the exploitation of runaway children. What is omitted from this bill is something about which I wish to make some comment. The government has decided—and it has published this decision—to reject recommendation 43 of the Mullighan report presented to the parliament on 1 April 2008, and it has indicated that it will not proceed with its implementation.

I mention this because it is an important omission—to provide a secure facility for runaway children. One of the concerns raised by Commissioner Mullighan in his report regarding the many children he interviewed was that it was simply not safe to leave runaway children on the streets, that this was not a place where they could have any security against the risk of being exploited or abused, and he therefore recommended that 'a secure care therapeutic facility to care for children exhibiting behaviour placing them at high risk be established as a last resort placement'.

That was recommendation 43 of his report. At the time, the opposition had publicly stated that it welcomed this recommendation regarding youth runaways amongst others (the others have been covered by this bill), but we are very disappointed to note that the government has made no commitment either to establish such a facility or to any funding to do the same. What is particularly concerning is that cases of runaway children who have got into trouble have been brought to the attention of the parliament, the Attorney-General and the Minister for Families and Communities.

I can think of one case in particular, which has been the subject of questions in this parliament, relating to a young woman who ran away and who, within a period of about seven months, became a drug and alcohol addicted person, became pregnant and had been the victim of exploitation to the extent that ultimately she became homeless and on the streets. Subsequently, she had the child and, 'for her own safety' were the words used, was placed for a short time at the Magill Training Centre, which of course is a detention facility for children who commit offences.

To find that a child who has ultimately become such a victim and who has committed no offence is ultimately held in a prison facility for children because she is uncontrollable is very concerning. So, when Commissioner Mullighan recommended in his report that we should have a secure facility that provided safety for children in this situation, we understood full well what he was talking about, and we had cases that had already been brought to the attention of the parliament that were being dealt with in a manner that was totally inappropriate for those children.

In fairness, it was acknowledged by the Minister for Families and Communities in her correspondence and to this parliament at the time that it was not the best option available, but it was the only option they felt they had; that is, to place a child in a children's prison, even if they had not committed an offence, for their own safety in those circumstances. That is totally unacceptable, and, therefore, the omission by the government in not making provision for it in this tranche of legislation is even more concerning.

However, I go back to what we do at least have in the bill. Under the current law, we have a provision, to some degree, to protect children who run away from home and who find themselves in circumstances in which they are at risk. Under the current law, it is unlawful to take a child from his or her placement or to harbour or conceal the child. That is already an offence. The defect which has been highlighted by Commissioner Mullighan and with which both the government and the opposition agree is that the children who abscond are rarely willing to give evidence against a person who provides them with refuge—in other words, someone who helps them to hide from their parents or from the guardian who has been appointed if they are state wards (as they are sometimes called)—but we need to be able to ensure that they are protected.

Of course, they have a different view. They want to get away from that situation, and therefore they are usually unwilling to give evidence against someone who is helping them to hide. That is the difficulty with that. Obviously, it is already an offence to abduct a child under 16, but again this requires proof that the child was taken and other evidentiary requirements. A general restraint order can be made against a person upon proof of intimidating or offensive behaviour on two or more occasions. Again, evidence is required.

There are paedophile restraint orders where the police can apply—and that does not rely on the child's evidence. That stops a person from loitering near children, but has limited use, as the parliament, I am sure, would appreciate for the children whom we are trying to protect with this legislation. The Youth Court can also make an order requiring a person not to have contact with a child. This applies to a care and protection order. Again, it can be used against a parent, guardian or custodian but it is limited.

The government's way of dealing with this is to introduce this child protection restraining order. This is what has emanated from the Department for Families and Communities. It is fair to say that neither I nor the colleagues with whom I have discussed this have ever heard of this proposal. It does not appear to have been floated in any discussion paper, although that does not mean that it is not a good idea. However, briefings by government officers indicate that this originated from the Department for Families and Communities.

We do not yet have the select committee report on the Department for Families and Communities. We are still awaiting that. Hopefully, we will have that before the end of the year. An expanded terms of reference was set down for a comprehensive inquiry into the operation of the department. In the submissions that have been published to date in relation to that inquiry, I have not seen it put forward as an idea by the Department for Families and Communities. It does not mean it has not happened, I just simply have not seen it. This seems to have come completely out of nowhere. Let us consider what it is though.

There will be power for a court, if it is satisfied of certain things, to restrain an adult person from having contact with a child—that is, someone under 17 years of age to be defined under the act—provided the court is satisfied that the child will be exposed to sexual abuse or drug offending. In terms of aspects of this which would apply, within the last 10 years the adult in question would have had to be convicted of a prescribed offence (rape, indecent assault, incest, gross indecency or child prostitution) and that adult is or has been subject to a child protection restraining order and, as a consequence of the child's contact or residence, the child would be at risk of those two specific things (namely, sexual abuse or drug offending) and the making of the order would be appropriate in all the circumstances.

There is a balance of probability threshold for the court to make that determination, and there can be power to make temporary placements of the child pending the proceedings. Our observation on this side of the house is that this would be a very limited application. There is no question that sexual abuse and drug offending are two areas of behaviour that are heinous and unacceptable, especially if a child is exposed to them, but it is fair to say that, although Commissioner Mullighan's inquiry related to sexual abuse of children under the guardianship and responsibility of the minister—that was the limited aspect of his inquiry—there is no question that children can also be exploited by other means and in other ways once they run away.

The most obvious and most common of which the house would be aware is children being used in the commission of crime—in stealing, committing robberies and the like—which do not come within the definition of their being at risk or exposed to sexual abuse or drug offending. That is concerning in the sense of its limitation, but we understand the reason that it is limited to that and couched on the basis that it is being presented as part of the Mullighan reform.

I make it absolutely clear to the house that this particular recommendation and proposal did not emanate from Commissioner Mullighan but, rather, it has come from the Department for Families and Communities. I think we need to know why it is being implemented because it might help to identify the reason for such limitations and whether there might be an opportunity to expand it.

My understanding from the briefing is that, notwithstanding this was not Commissioner Mullighan's recommendation, there has been some form of informal approval by him of the bill. I am not sure whether he has been given a copy of the bill or a briefing on the detail of it, but my understanding is that that has occurred. Certainly during the consultation we were concerned to ensure that Commissioner Mullighan was at least asked because, after all, this is being presented to the parliament as a Mullighan recommendation response and we wanted to be sure that it was consistent with that, particularly as it became clear in the briefing that it was not part of his recommendations but, rather, had a different origin.

The second aspect of this bill relates to the harbouring and concealing of a child. The two-step process, if I can describe it as that, is consistent entirely with Commissioner Mullighan's recommendation. First, the Chief Executive of the Department for Families and Communities will be authorised to direct a person by written notice not to communicate with or harbour or conceal a particular child. This is restricted to children who are under the guardianship of the minister, and severe penalties will apply in the event of non-compliance with that direction. It does introduce the offence of harbouring or concealing a child, preventing a child from returning to a state placement knowing the child is absent without lawful authority.

I would hope—and I am sure other members of the house would also hope—that this legislation will help to deal with a number of cases that come to us in our electorate offices. Concerned parents or relatives of children who are under the guardianship of the minister and who run away from their secure accommodation or from foster parents' residences and are at large, feel that they do not have any legal control over the matter. Nonetheless, they are very concerned about the safety and well-being of their child. There will have been occasions, I am sure, when members have had parents contact them in that situation to express their concern and ask what can be done to ensure the child is returned safety, even if not to their own home. Sometimes there are concerns about exposure to risk of abuse or exploitation in some manner—if a 14 year old girl has gone off with her 18 or 20 year old boyfriend—and the parents feel completely impotent to do anything.

That is one category dealt with, and it is restricted in the bill to those under the guardianship of the minister. Obviously, there are penalties, including imprisonment for up to one year, which will help deal with that, but there is another group in the community who are also responsible for the correspondence that many of us in this place receive, namely, the parents of children who are not under the guardianship of the minister but who run away. They are the children who, as a result of some disagreement as to arrangements within the family, run away from home. I specifically exclude children who escape an abusive situation within the family home as we have a whole child protection umbrella to protect them, and I am sure that everyone in this place supports that situation being maintained for those children, who must be protected.

However, disagreements can arise in a household as to the level of discipline and the arrangements a child will have for their schooling, who they might be friendly with, or whether they can associate with a particular person of the same or opposite sex: they are issues that confront households and families and affect relationships between children and their siblings or parents. Sometimes they result in a child running away and therefore being on the street. They may run away to another relative and still be in the sanctuary and safety of a household that is supportive and protective of them, but we are talking of those who run away, nobody knows where they are and they do not show up on the radar in a hurry as they are hiding because of a disagreement they have had with their parent or guardian back in the household.

These are disturbing situations for the parents who contact police and say that their child is missing. They might indicate where they suspect the child has gone, but they have a harrowing time not knowing where their child is. Not surprisingly, in certain circumstances the police will say that they will record the child as being a missing person but, if there appears to have been a domestic dispute, after examination of the situation they may not treat it as a major crime or regard the child as being at risk, and they will apply their attention to other duties. So the parents are left in a situation where they then contact government agencies.

They may be told by officers that they do not know where the child is, but they undertake to contact the parent if that child turns up. At that stage a genuine attempt is made by all concerned to locate the child to ensure they are safe, and efforts are usually made to return the child to their home. That is in the good cases. Obviously, in the more difficult cases, where the child might ultimately be located, either by police or by other agencies, the child expresses a wish not to return to the family home, indicating their disquiet at the relationship, or lack of such, that they have with their parents.

It may be something as simple as whether the child is allowed to have their ears pierced or something. These are situations where there is a breakdown of the relationship in the family and the child is at large and, as Commissioner Mullighan says, is at risk. Frankly, those children are at risk irrespective of whether their legal guardianship vests with the parents or with the minister. Just because these children are under the guardianship of the minister does not give them any greater protection. These children are at risk because there are predatory people out there who will abuse and exploit them if they are given the opportunity.

So, it is very important that, whilst Commissioner Mullighan's terms of reference were quite narrow in relation to the children he can give recommendations on—and that is to be commended and understood—there is a whole group of other children out there who are not under the guardianship of the minister and who also need to be protected.

One of the matters that were under discussion during the consideration of this bill was how we ensure that the parents of the non-state ward children (that is, the children who are still under their legal guardianship) also have the capacity to ensure that their child is protected and that they can have access to the benefits of this legislation. That forms the basis of what I would describe as the Bressington amendment, which I understand the government is prepared to support and the opposition will do likewise.

I do not think for one moment that this legislation will be some panacea of protection for runaway children, but we do acknowledge that the government has acted on these recommendations. We made our position very clear back in 2008 that we supported these recommendations. So, while we are disappointed that it has taken such a long time to bring this to the parliament, we will support it and hope that it has a quick passage through the parliament and that its implementation can then be available for consideration in the courts, where necessary.

There is one resource issue I want to touch on, and that is the issue of dealing with the number of cases that may now come before the Magistrates Court to protect children in these circumstances. It will, of course, impose an extra responsibility on the courts. How many of these applications are made we are yet to see. It may be that a flurry of work will be undertaken in respect of the notice procedure and that the chief executive might be inundated with requests to issue notices under the directions provision not to harbour, conceal or communicate with a child and that the courts are not rushed with applications.

What we would like to hear from the government is that, in introducing this legislation, for which the government has our support, it will ensure that some assessment is made and data recorded as to the applications that are brought before the court and that, if the number or complexity of these applications in any way overburdens the court services, adequate resources will be available to deal with it. In the absence of having any indication of how many cases this will be, it is difficult for any government to make any provision. However, we say that it is something the government should track and should be observing in other jurisdiction—if it applies in any—in relation to the child protection restraining order process and certainly in other departments where there is any kind of notice or direction procedure.

The only other notice or direction procedure I can think of that is in some way equivalent is the notice procedure which can be utilised under the Education Act and which enables principals of schools, for example, to issue a notice on a person who is in some way causing a disturbance around a school. I cannot recall the details specifically, but it was largely to deal with situations where parents have separated and there is a disturbance outside the schoolyard, with confrontations between the estranged parents regarding disputes over access arrangements with children and the like.

There is another example (and I can recall one incident in a school in the north-eastern suburbs where this was a problem) where children, who were former students at the school, were coming back to the school precinct, waiting outside the schoolyard for current students to leave the premises at the end of the school day, and questions were raised about selling drugs and the like.

There is a procedure that enables the principal of a school—it may be a lower position, as well, but it is at least the principal and perhaps the deputy principal as well—to have the capacity to issue a notice against a person. That can be referred to the police, and the police can ask them to move on if they loiter within the precincts of the school. So, there are some precedents for this type of notice arrangement.

If a large increase in resources is required, we would want some commitment from the government that that would occur in order to ensure that this does not remain as just bald legislation, that it will be applied and that it will not cause significant delay to other cases. One of the difficulties we already know of—and I am sure the Attorney is aware of it—is that we have a number of cases in which there is a proposed prosecution and charges are laid for criminal offences arising out of the Mullighan inquiry.

The government has announced certain initiatives to accommodate the express resolution and expedition of those cases, given the time that has elapsed already. The opposition recognises that that is appropriate, but there is a direct consequence; that is, people who are awaiting the determination of other cases (not just other criminal cases but also civil cases) are delayed. I am sure members of this house know of a number of cases in their electorates to which that is pertinent.

I had one case in the past week, when a woman complained that she had pending de facto property action in the Supreme Court (or it may have been the District Court) in which she was seeking relief to access settlement for her share of property with her former de factor partner, and that included her registered half interest in their former residence. She has now been advised that her case will not be heard until March or April next year, and that is a very long time to wait.

It is particularly difficult—and this is where it affects other policies–because there is a policy that states that, if you are a registered proprietor of property, you cannot access or even get onto the list for people seeking public housing through the South Australian Housing Trust. So, you have a situation where, because someone is a registered proprietor of property—even though they cannot live in it at the present time, access it, use the money from it or even borrow against it to secure other accommodation—the legal status means that they are excluded from being on a public housing list or having access to it, and yet at the same time they face a significant delay in the resolution of the civil proceedings in the court.

So, be under no illusion. I am sure that members would not be, because I am sure that they also have these cases where we introduced legislation here, or we all agree that something needs to be expedited because it is worthy of expeditious resolution and justifies some advance. However, be very clear that something else has to take a second seat. It is very important that the government at least commit to ensuring that it will monitor this and that it will make provision to ensure that this is fulfilled without adverse impact on others seeking justice.

Mr HANNA (Mitchell) (12:56): I wish to make a few remarks about the government's latest efforts to extend protection for children who are at risk. This legislation specifically provides greater protection in respect of children who are under the care of the minister. It allows orders to be made for adults not to harbour those children. I am, possibly, more concerned about the more prolific situation where children who are not in the care of the minister have run away from home and are living with people who are unsavoury one way or another.

I am glad to say that this legislation allows for child protection restraining orders to be made against the adult in that situation. I have been in favour of this sort of legislation since cases in my electorate were brought to my attention. I can think of two examples. One is the case where a teenage girl had run away from home. She lived with a drug dealer. She was certainly at risk of being in a sexual relationship with him, even if it did not, in fact, happen. She was certainly exposed to drug dealing. And, yet, when her mother complained to Families SA, one of the social workers said, 'Well, at least she's got a roof over her head.' That was said because the volume of cases that Families SA deals with is so great that this was very much a lower order issue and it was not going to be the subject of investigation by the authorities. So, I hope this legislation will help that case.

The other case I had was, again, a teenage girl who ran away because she had disagreements with her sole parent mum, and she went to live with a guy who had been grooming her when she was younger. He was one of the few figures who had shown her some affection outside the family. He was about three times her age. That is the sort of situation which I hope will be covered by these child protection restraining orders. It is beneficial legislation, and I am very glad to see its passage through the parliament.

Mr GOLDSWORTHY (Kavel) (12:59): I am pleased to make a contribution to the legislation before the house, the Statutes Amendment (Children's Protection) Bill 2009. I join with my colleagues, particularly the shadow attorney-general, in speaking in support of the bill. I seek leave to continue my remarks.

Leave granted; debate adjourned.


[Sitting suspended from 13:00 to 14:00]


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