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House of Assembly - Fifty-First Parliament, Third Session (51-3)
2009-10-14 Daily Xml
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STATUTES AMENDMENT (CHILDREN'S PROTECTION) BILL

Committee Stage

In committee.

Clauses 1 to 3 passed.

Clause 4.

Ms CHAPMAN: This clause relates to the power to remove children from dangerous situations, and it sets out the circumstances under which will be taken. In relation to where children may be placed, in the absence of there being a therapeutic detention secure facility, which has just been referred to, and in the circumstance where there is no accommodation available, is it the intention of the government that it will continue, in these circumstances, to place children, albeit for short periods of time, at the Magill Training Centre when, clearly, they do not have a criminal record but it has been deemed that the only safe place available to them, and where they will be protected, is a children's prison? I gave the most recent example of that during my second reading contribution. Is it the government's intention that it will continue to place children at the Magill Training Centre in these extreme cases in the absence of a therapeutic detention facility?

The Hon. M.J. ATKINSON: I do not think the question is relevant to the text of the bill.

Ms CHAPMAN: I will put it this way. Does the list of places where the government proposes to place children, having taken them away, include the Magill Training Centre?

The Hon. M.J. ATKINSON: The bill does not contain a list of such places.

Clause passed.

Clauses 5 to 11 passed.

Clause 12.

Ms CHAPMAN: This is the clause which essentially provides for the child protection restraining orders, in particular, who can apply, what are the circumstances that need to prevail to satisfy a court, and a number of other aspects in the machinery of this. The prescribed offence which is referred to means a child sexual offence or an offence under part 5 of the Controlled Substances Act. Are there any other offences that are proposed to be prescribed by regulation?

The Hon. M.J. ATKINSON: No.

Ms CHAPMAN: We were advised in the briefing that this child protection restraining order came from the Department for Families and Communities as one of its initiatives. As I indicated in the course of debate, this was not a recommendation of Commissioner Mullighan in his report, or in any other report that I have seen of his. Can the minister identify who or what division within the Department for Families and Communities came up with this idea and whether there was any report, investigation or assessment of where it might be operating in some other jurisdiction for the purposes of presenting it to the parliament in this bill?

The Hon. M.J. ATKINSON: Families and Communities talked with the Attorney-General's Department about an alternative to therapeutic detention and came up with this alternative which acts on the potential abuser rather than the child. The Attorney-General's Department explained what we were proposing to Commissioner Mullighan and, as we understand it, he was happy with what we are proposing.

Ms CHAPMAN: I understand that, minister, but my question was actually: where did this come from in the department and was it based on any report or investigation done by them before they put it to your department, which you then adopted and explained how it happened from there? I am trying to find the origin of it.

The Hon. M.J. ATKINSON: The Attorney-General's Department, after studying the question, decided that therapeutic detention was not a good idea.

Ms CHAPMAN: I think we are at cross-purposes. I am not talking about therapeutic detention: I am talking about the idea that is the root of this child protection restraining order. This is your idea and nothing to do with the therapeutic facility. It is this idea. What was the data, research or review that was undertaken by either department (yours or Families and Communities) which led to this idea coming in from the department?

The Hon. M.J. ATKINSON: The Attorney-General's Department studied what was done in other jurisdictions and what was done in South Australia. We discussed it with Families and Communities and this is what we came up with.

Ms CHAPMAN: Is that correct then that this is something that has come out of the Attorney-General's Department or is it an idea that has come from Families and Communities? What we were told at the briefing is that this came from Families and Communities. If your department initiated it, then my same question is to your department. I really want to know because, if you say that studies have been done and consideration of other jurisdictions has been conducted, then can you tell us in what other jurisdictions this operates and what other study was done?

The Hon. M.J. ATKINSON: Families and Communities decided that it did not think therapeutic detention was a good idea. It asked the Attorney-General's Department to work up an alternative to it and we did.

Ms CHAPMAN: Having then come from the Attorney-General's Department, what other jurisdictions that you referred to were investigated and what research was done to identify whether this was a proposal that was worthy of proceeding with?

The Hon. M.J. ATKINSON: The member for Bragg just does not quite seem to get it.

Ms CHAPMAN: You said you looked at other jurisdictions.

The Hon. M.J. ATKINSON: That is right.

Ms CHAPMAN: What were they?

The Hon. M.J. ATKINSON: We looked at other jurisdictions but, as it happens, no other jurisdiction has this; it is our idea. Is that what you wanted to know?

Ms CHAPMAN: That is fine.

The Hon. M.J. ATKINSON: What a breakthrough!

Ms CHAPMAN: In your department, what was the basis upon which this idea was born as being the answer whether it is alternative, therapeutic or any other method? Where did this come from? There is no other jurisdiction that you know of that operates it. What was the other data or research that was done?

The Hon. M.J. ATKINSON: We consulted Families and Communities and then we were creative.

The CHAIR: The question is that clause 12—

Ms CHAPMAN: Madam Chair—

The CHAIR: Member for Bragg, I have been very indulgent but these questions are not even committee stage questions. They are more appropriate to the second reading speech, so could you—

Ms CHAPMAN: Madam Chair, this is what the child protection restraining orders were on. The major initiative of this bill—

The Hon. M.J. Atkinson interjecting:

The CHAIR: Order! The matters raised were appropriately raised in the second reading speech when the Attorney could have answered them. Do you have questions about the detail of the bill as opposed to its genesis and origins?

Ms CHAPMAN: When your department decided that it was going to make up this idea of doing something which was completely novel and which it had not found anywhere else in any other jurisdiction, what was the basis on which it decided which people could make the complaint as set out in subclause (1)?

The Hon. M.J. ATKINSON: The applications need to be made by a responsible public official, not helter-skelter by anyone who wants to interfere and is not accountable. We do not want these applications to be used vexatiously or to damage the reputation of people who do not deserve it. We want a considered decision by a responsible public official to apply for one of these orders. So, it is the child or the guardian or a police officer. We do not want some busybody coming along and trying to damage a third party by taking out an application against them. The mere process of applying would be enough, I think, to damage the target's reputation.

Ms CHAPMAN: This having emanated from your department, as we now know, and not out of Families and Communities, what was the basis upon which you formulated section 99AAC(2)(c)(ii) which sets out the circumstances in which the restraining order may apply—namely, that there has to be some history that would put them at risk of sexual abuse or drug exposure?

If this had come out as a Mullighan recommendation, I could understand that, because he had very strict terms of reference, but now that we know that it has emanated out of your department, what was the basis for deciding that other forms of risk to children, including exposure to undertaking criminal activity or expectation of being exploited in other ways, are not to be included? Why did it have to be confined to just these two areas?

The Hon. M.J. ATKINSON: Commissioner Mullighan identified the mischief. We then set about dealing with the mischief. This is the result.

Ms CHAPMAN: I think, Attorney, you would agree that the mischief that Commissioner Mullighan was confined to be able to investigate, of course, was sexual abuse of children who were state wards. As prescribed by this parliament, he had a very narrow term of reference to investigate. Of course, he could not look at the question of whether children were necessarily going to be at risk by exploitation or undertaking other illegal activity—for example, being used in the commission of criminal offences and the like.

The Hon. M.J. Atkinson: What's your point? What point are you making?

Ms CHAPMAN: My point is that, this having emanated from your office and not from Commissioner Mullighan and the restrictions relating to that, why would your child protection restraining orders not also be available as a relief when children are, on the evidence, at risk of being used in criminal activity?

The Hon. M.J. ATKINSON: The criminal activity that was identified by both Commissioner Mullighan and others was unlawful sexual activity and unlawful exposure to non-therapeutic drugs and, accordingly, it is to that that we have responded in our law. If the unlawful activity that had been identified was some Fagin having artful dodgers under his roof and shoplifting we would have addressed that, but that was not what was identified. What was identified was illicit sexual activity and illicit supply of drugs.

Ms CHAPMAN: When the Attorney's department came up with this idea, did it even consider any other areas of risk that might need to be included, or did it not even address that issue?

The Hon. M.J. ATKINSON: First of all the member for Bragg takes the view that we should have taken a more rigid approach and only confined ourselves to what Commissioner Mullighan recommended and not be creative and find a different solution, and then in this question she asks, 'Why weren't you more creative?' and go out and find mischiefs to remedy, to which no-one in the consultation referred.

Ms CHAPMAN: Madam Chair, I rise on a point of order. This is the committee stage, during which questions are asked of the mover of the bill in relation to its application—

The CHAIR: Order! The member for Bragg has been indulged by the chair to the extent so far of 10 questions when three is the standing order.

Ms CHAPMAN: —and my point of order is that the Attorney is simply putting back—

The CHAIR: Order!

Ms CHAPMAN: —a rhetorical question that is not only inaccurate but—

The CHAIR: Order! The member is engaging in debate. A personal explanation is the suitable way to address those issues. Are there any further questions on clause 12?

Ms CHAPMAN: No, Madam Chair.

Clause passed.

Clause 13 passed.

Clause 14.

Ms CHAPMAN: With respect to the issue of the restraining order and the absence of the defendant, what is the process that is to occur in relation to the service of the order when it is made in his or her absence?

The Hon. M.J. ATKINSON: The orders do not take effect until they are served on the subject of the application.

Ms CHAPMAN: So, is it the situation that an application for the order to be made can be served on the defendant? The defendant does not turn up to court, the order is made in his or her absence, and it will not take effect until the service of that order on him or her?

The Hon. M.J. ATKINSON: Yes; the same arrangements as under the Summary Procedure Act with apprehended violence orders.

Ms CHAPMAN: I need to clarify that, because at the moment if you are served with the application and you do not turn up to court you run the risk of the court making that order, and that is your bad luck. These are not interim orders; these are orders upon which they have been served and orders made in the absence of the defendant because they have skipped the state or do not want to turn up or ignore the jurisdiction completely. Is the Attorney saying that if they do that—an order is made and they just avoid service—they will be able to avoid any penalty for a subsequent breach thereof in that action?

The Hon. M.J. ATKINSON: I refer the member for Bragg to section 99E of the Summary Procedure Act.

Ms CHAPMAN: That is why I am seeking clarification, because, at present, if you do not turn up to court under the Summary Procedure Act, you run the risk that an order will be made and that it will be binding on you irrespective of whether the defendant snubs their nose at the court. That is why I want to be clear about this. In fact, under the intervention orders which we are in the middle of debating, there will be special provision to ensure that, once the interim order is made and served and it is later confirmed, the police are not required to serve it again. I think that has merit, but I want to be absolutely clear under this new procedure that, if an order is made in the absence of the defendant, will it only be able to be prosecuted for any future breach of conduct if they are served with it?

The Hon. M.J. ATKINSON: Yes, because it is the same as any other restraining order.

Clause passed.

Remaining clauses (15 to 19) and title passed.

Bill reported without amendment.

Third Reading

Bill read a third time and passed.

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