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House of Assembly - Fifty-First Parliament, Third Session (51-3)
2009-12-02 Daily Xml
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STATUTES AMENDMENT (CHILDREN'S PROTECTION) BILL

Final Stages

Consideration in committee of the Legislative Council's amendments.

Amendments Nos 1 and 2:

The Hon. M.J. ATKINSON: I move:

That the House of Assembly disagree with the Legislative Council's amendments Nos 1 and 2, and make the following alternative amendment:

Clause 12, page 6, line 27 [clause 12, inserted section 9AAC(2)(c)(ii)(A)]—After 'sexual abuse' insert:

or physical, psychological or emotional abuse or neglect

The advance made by the bill in offering restraint of the predatory adult to protect children at risk of sexual abuse or drug activity is already a considerable one. Amendments Nos 1 and 2 will fundamentally change the nature of the restraining order and allow it to be used in ways not contemplated by commissioner Mullighan when he identified the problem the bill seeks to remedy.

The amendments will allow a court to make a child protection restraining order against a person on the simple grounds that it is not in the best interests of the child to reside with that person. The order can be made against a person even though there is no evidence that residing with this person puts the child at risk of harm. No other form of personal restraining order under South Australian law or any other Australian law may be issued without the court having first to be satisfied, at the very least, of a risk that the person being restrained would, without restraint, harm the other person.

If amendments Nos 1 and 2 become law, how is the court to determine whether living with a particular person is in the child's best interests? The court will have to evaluate all possible other living arrangements for the child. What if, in that inquiry, it finds that neither living with this person nor living with the parent who is seeking the restraining order is in the child's best interests? Where to then? Is this something we want a busy court of summary jurisdiction to be doing? How does this relate to the Youth Court's jurisdiction in child protection matters?

Although the court should make the child's best interests a primary consideration in deciding whether to make a child protection restraining order and in determining its terms—and the bill already requires this in new section 99AAC(3)—it should not also be a ground for a child protection order. Making it a primary consideration is enough.

A child who is prey to people who exploit him or her sexually or expose him or her to drug activity is already amply protected by the bill. Under the bill, to make a child protection restraining order against such a person the court simply needs to be satisfied that residing with this person puts the child at risk of sexual abuse or drug activity, or exposure to either.

The bill does not require proof of a conviction before an order can be made. The bill deliberately allows the order to be made when there is a risk of harm only without proof of conviction. If there is a relevant conviction for a child sex or drug offence, then the risk of harm is assumed. It is a given. There is no need to prove a risk of harm. Proof is on the balance of probabilities and not on the high criminal standard, as for all kinds of restraining orders.

The grounds for restraint proposed an amendments Nos 1 and 2 from the other place will be used by some parents inappropriately and in these cases will increase the workload of the courts unnecessarily. But, most importantly, if child protection restraining orders can be used against people who offer genuine shelter to troubled runaway children and who present no risk of harm to them, albeit that the living arrangements do not satisfy everyone, then the only people to whom these children can turn are—guess who?—the very people for whom the best interests of the child has no importance whatsoever—predators who will exploit the child.

The government is prepared, if amendments 1 and 2 are disagreed with, to broaden the scope of the bill by adding an additional ground for restraint that is based on a risk of harm. The amendment I recommend will make it an additional ground for restraint that, as a consequence of the child's contact or residence with the defendant, the child is at risk of physical, psychological or emotional abuse or neglect. This would cover the kinds of exposure other than the exposure to unlawful sexual or drug activities, which are already covered by the bill, that some members have raised in the debate.

Importantly, I think, the need for restraint to a risk of harm keeps the best interests of the child as a primary consideration for the court rather than as a ground of restraint. I recommend that the House of Assembly agree with amendments Nos 3 and 4 made by the other place to the bill.

Ms CHAPMAN: This, as members will recall, is a bill that was introduced by the government subsequent to the inquiry by Mr Ted Mullighan QC, who had been appointed to investigate children in state care who had been exposed to sexual abuse. That report made a number of recommendations. One of the aspects that he considered important to appreciate is that children who run away from home and are left on the streets are at risk and that, in a nutshell, it is too dangerous to leave them there.

His report, after receiving interviews from a number of children, recommended that there be legislative provision to impose obligations on persons not to interfere with the guardianship of children and that there be new offences in respect of harbouring of children and for those who essentially aid and abet children to remain not just on the street but also at risk, and to impose some obligation on persons who are responsible to ensure that they be returned to safe care. I paraphrased that, but that is the gist of the second and third trunks of this legislation.

The first bit of it, a rather novel approach, was not the idea of Mr Mullighan. I cannot recall exactly where it came from—it is in the previous debates on this matter—but someone in the department decided that a way to deal with children who are at large and potentially at risk was to allow for a regime that would impose restraining orders on certain persons, having noted the report from Mr Mullighan that persons who were sexual predators and/or those who had a history of dealing in drugs were a monte for exposing to risk children the subject of his inquiry. Having recommended, therefore, that there be some protection in these circumstances, the government's idea was to have a restraining order arrangement.

The Hon. Ann Bressington in another place—and I read her initial contributions—felt that this was too narrow and that there should be amendments to facilitate the opportunity to seek a restraining order and only have to satisfy the best interests of the child test to reside with the relevant party rather than having any other evidence of risk or harm that might arise out of that, I was going to say cohabitation, but at least occupying the same premises.

The government's view, as I understand it, is that that is far too broad. Its remedy for acquiescing to the Hon. Ms Bressington's request—not just to make it practical, but also to keep some containment on the accessibility of these restraining orders and the applicability thereof—is to come up with this further amendment. I have listened to the Attorney and I can certainly see some merit in what he presents.

My understanding is that, in another place an indication has been given to the Hon. Ms Bressington to be absolutely clear (I suppose for her reassurance but for all of us who are having to vote on this) that the sexual predators, pimps, drug dealers and all these sorts of people are already covered by the bill and that there is no need to prove a conviction to get a child protection restraining order against a suspected paedophile or drug supplier and that this was an assertion possibly mistakenly indicated by the Hon. Ms Bressington.

With that assurance given, I am not sure whether or not it is in the house but I place it on the record here, I indicate that we would accept the resolution presented by the government to disagree with the amendment of Ms Bressington as outlined in amendments Nos 1 and 2 and to support the amendment as tabled by the Attorney-General.

I understand that with that is an indication by the government that it is prepared to make that provisional ground essentially by this amendment to allow for an order of restraint where, as a consequence of a child's contact or residence with the defendant, the child is at risk of physical, psychological and emotional abuse or neglect.

On that basis, we indicate our support for the government's position, particularly as it is important in the closing days of this parliament—and hopefully the last of the government but I will not debate that much longer. This is an important piece of legislation which the opposition has very much supported the thrust of, so with those few words we look forward to the swift passage of the bill.

The Hon. M.J. ATKINSON: I just want to add that I am grateful for the bipartisanship of the member for Bragg on this matter.

Motion carried.

Amendments Nos.3 and 4:

The Hon. M.J. ATKINSON: I move:

That the Legislative Council's amendments be agreed to.

Motion carried.


At 17:57 the house adjourned until Thursday 3 December 2009 at 10:30.


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