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House of Assembly - Fifty-Third Parliament, Second Session (53-2)
2015-05-06 Daily Xml
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Children's Protection (Implementation of Coroner's Recommendations) Amendment Bill

Introduction and First Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Housing and Urban Development, Minister for Industrial Relations, Minister for Child Protection Reform) (15:45): Obtained leave and introduced a bill for an act to amend the Children's Protection Act 1993. Read a first time.

Second Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Housing and Urban Development, Minister for Industrial Relations, Minister for Child Protection Reform) (15:46): I move:

That this bill be now read a second time.

On 9 April 2015, the State Coroner handed down the findings of the Inquest into the Death of Chloe Lee Valentine. The Coroner's findings included 21 recommendations for change. On 13 April 2015, the government resolved to support 19 of those recommendations. Recommendation 22.13 was supported in principle and recommendation 22.9 is currently the subject of further investigation.

The Children's Protection (Implementation of Coroner's Recommendations) Amendment Bill 2015 seeks to amend the Children's Protection Act 1993 to implement three of the Coroner's recommendations, namely recommendations 22.2, 22.11 and 22.12. I seek leave to insert the remainder of the second reading explanation without my reading it.

Leave granted.

Recommendation 22.12

The Bill amends the objects of the Act to make it plain that the paramount consideration in the administration of the Act is to keep children safe from harm and that maintaining a child in her or his family must give way to the child's safety.

The Bill also removes the fundamental principles set out in section 4. The purpose of this amendment is to ensure that the objects of the Act are clear, and are not complicated by a further section setting out other matters to be considered when implementing those objects.

Recommendation 22.11

The Bill amends the Act to recognise cumulative harm as a relevant factor in making decisions about the care of a child. The Bill provides that in assessing whether there is a significant risk that a child will suffer serious harm or a child has been abused or neglected, relevant officers will take into account not only the current circumstances of the child but also the history of the child's care and the likely cumulative effect of that history.

This amendment provides for proper consideration of the effect of the kind of chronic neglect that was present in the life of Chloe Valentine by ensuring notifications and episodes of neglect and abuse are not considered by decision makers in isolation.

Recommendation 22.2

The Bill will amend the Act to include convictions for particular offences within a new definition; qualifying offence. This will capture any person who has a conviction in respect of a child previously born to them, or for whom they were guardian, for criminal neglect, endangering life, causing or creating risk of serious harm, manslaughter or murder. This definition also captures convictions for an attempt to commit the preceding offences, offences to which the finding of a Court under Part 8A of the Criminal Law Consolidation Act 1935 applies, as well as corresponding offences in other jurisdictions.

The range of qualifying offences is broader than the Coroner's recommendation.

Under the Bill, the Chief Executive must, if he or she becomes aware that a child is residing with a parent who has been found guilty of a qualifying offence, issue an instrument of guardianship in respect of the child. The child specified in the instrument will, for all purposes, be under the guardianship of the Minister for a period of 60 days. As soon as practicable within that period, the Minister must apply to the Youth Court for a care and protection order under Division 2 of the Act. If additional time is required to investigate the child's circumstances, the Bill makes provision for the Court to grant an extension of time on application of the Minister.

Under the Bill, a newborn child who has not yet been discharged from hospital will be taken to be residing with a person if the child is likely to reside with the person, for example the biological mother, on being discharged.

While the Coroner's recommendation focussed on the actions of the biological parents of a child, it is noted that a person that has committed a qualifying offence may reside or intend to reside in a household with a child that is not their own and this may pose a significant risk to the safety of the child. For this reason, the Bill further provides that if the Chief Executive becomes aware that a child is residing with a person (other than the parent of the child) who has been found guilty of a qualifying offence, the Chief Executive must issue a restraining notice to the offender unless the Chief Executive is of the opinion that it is inappropriate to do so in the circumstances.

Under the Bill a restraining notice may prohibit the offender from:

Residing in the same premises as the child;

Coming within a specified distance of the child's residence;

Having any contact with the child except under supervision;

Having any contact at all with the child.

Consistent with the instrument of guardianship, a restraining notice will apply for a period of 60 days and the Minister must, as soon as practicable, apply to the Youth Court for a care and protection order. As is the case for instruments of guardianship, the Minister can apply to the Court for an extension of time.

In order to bring these amendments into practice, the Bill requires a Court that finds a person guilty of a qualifying offence to provide information relating to that finding of guilt to the Chief Executive as soon as practical after the person is found guilty.

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 Children's Protection Act 1993

4—Substitution of section 3

This clause substitutes section 3 of the principal Act, clarifying the objects of the Act so that keeping children safe from harm is the primary object, or the paramount consideration. Further objects are set out in new subsection (2), but they are secondary to the need to keep children safe from harm.

5—Repeal of section 4

This clause repeals section 4 of the principal Act.

6—Amendment of section 5—Provisions relating to dealing with Aboriginal or Torres Strait Islander children

This clause inserts a new subsection (a1) into section 5 of the principal Act. This is a relocation of current section 4(5) and is consequent upon the repeal of that section.

7—Amendment of section 6—Interpretation

This clause inserts a new subsection (4) into section 6 of the principal Act. The new subsection makes it clear that, in assessing the risk of harm to a child for the purposes of the Act, or the fact of whether a child has been abused or neglected, the accumulated effect of any harm across the course of the child's history must be considered, and not just the circumstances existing in relation to the child at the point in time of the assessment.

8—Amendment of section 37—Application for care and protection order

This clause inserts new subsection (3) into section 37 of the principal Act. The new subsection (consequential upon the insertion of new Part 5 Division 3) requires the Minister to apply to the Youth Court for a care and protection order under Part 5 Division 2 as soon as is practicable after he or she issues an instrument of guardianship or a restraining notice under new Part 5 Division 3. The new subsection also sets out the grounds for such an application, namely that the initial instrument or notice was properly issued.

9—Amendment of section 38—Court's power to make orders

This clause inserts new paragraph (ea) into section 38(1) of the principal Act. The new paragraph allows the Youth Court to revoke an instrument of guardianship or restraining notice where an application contemplated by section 37(3) has been made.

10—Insertion of Part 5 Division 3

This clause inserts new Part 5 Division 3 into the principal Act, as follows:

Division 3—Chief Executive to take action in relation to persons with qualifying offences

44A—Interpretation

New section 44A sets out key terms used in the new Division 3.

Of particular note is the definition of qualifying offence, those being the offences that enliven the requirements of the new Division. Those offences are murder, manslaughter, criminal neglect, an act to endanger life or causing serious harm, or an attempt to commit such an offence, where the victim is a child and the offender a parent or guardian of the child. It does not matter whether the offence was committed before or after the commencement of the new Division.

44B—Application of Division

New section 44B provides that new Division 3 only applies to children born in the State after the commencement of the new section who are not the subject of a guardianship order under another Act, for example the Guardianship and Administration Act 1993.

44C—Temporary guardianship instruments and restraining notices

New section 44C(1) requires the Chief Executive to assume guardianship of a child if the Chief Executive becomes aware that the child is residing with a parent who has been convicted of a qualifying offence, being the offences defined in new section 44A. Those offences include interstate offences. This is achieved by Chief Executive issuing an instrument of guardianship.

New section 44C(3) requires the Chief Executive, if he or she becomes aware that a child is residing with a person who is not their parent but who has been convicted of a qualifying offence, to issue a restraining notice to the person, prohibiting the person from doing the things specified in the notice, such as residing in the same premises as the child.

The new section also makes provision in relation to procedural requirements for instruments of guardianship and restraining notices, and creates an offence for a person to contravene a restraining notice. The new section also provides that a newborn baby will be taken to reside with a person if the baby is likely to reside with the person when the baby comes out of hospital.

As soon as practicable after the Chief Executive issues an instrument of guardianship or a restraining notice, the Minister must make the application referred to in the amended section 37 of the principal Act.

44D—Court may grant an extension of time

New section 44D allows the Youth Court to extend the guardianship period or restraining notice period (that is, the period of time an instrument or notice is in effect) if the court thinks it appropriate to do so.

44E—Evidentiary

New section 44E provides an evidentiary presumption in respect of instruments of guardianship and restraining notices.

44F—Information to be provided to Chief Executive

New section 44F requires a court that finds a person guilty of a qualifying offence to provide to the Chief Executive prescribed information relating to the finding of guilt.

Debate adjourned on motion of Mr Gardner.

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