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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-11-17 Daily Xml
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STATUTES AMENDMENT (CHILDREN'S PROTECTION) BILL

Second Reading

Adjourned debate on second reading.

(Continued from 29 October 2009. Page 3853.)

The Hon. R.P. WORTLEY (17:30): I rise today to address the Statutes Amendment (Children's Protection) Bill. This bill represents part of the government's response to a particular recommendation—recommendation 47—within the report of the Commission of Inquiry into Children in State Care.

I do not propose to revisit the stories that were told to that commission of inquiry, stories that are well and truly scorched into our memories. I personally remain—as I am certain we all remain—profoundly affected by those experiences of physical and sexual abuse and emotional and psychological deprivation that were finally revealed by those who had suffered them as children and young people, and who continue to suffer from them today. The government has acted to ensure that in future some of those terrible stories will no longer need to be told. Recommendation 47 reads:

That the following offences be created:

(1) Harbouring a child in state care contrary to written direction.

(2) Communicating with a child in state care contrary to written direction.

The legislation should provide for a written notice to be served on a person with a presumption that, upon proof of prior service, the offence is committed if the child is found with that person.

The bill before us amends two pieces of legislation, the Summary Procedure Act 1921 and the Child Protection Act 1993, and it makes consequential amendments to a further statute, the Criminal Law (Sentencing) Act 1988. These amendments will give effect to measures that will, first, prevent and, secondly, penalise the exploitation of children who have run away from home or from state care.

Unfortunately, a frightening number of children and young people in South Australia have run away from their families or from care, and the reasons for their running must be almost as many in number. Even more importantly, there are in our community predators who would abuse and exploit these young ones for their own sinister ends. Among these are people who will offer money, a home, drugs or alcohol, or simply a meal for the purposes of obtaining in return unlawful sexual activity or the carrying out of a criminal act or acts.

I put this in polite terms, but basically I am talking about the provision of sexual services or criminal acts by young, vulnerable and often damaged people in a situation of complete power imbalance and conscious criminality, and such is the degradation of these children that sometimes they are unwilling to incriminate those who have hurt them. Often the exploiting adult is the rare individual who has shown a twisted form of 'kindness', or who has provided the child with the bare necessities of life for their own nefarious reasons. Currently, and unless this bill is passed, if the child is resistant to police or other professional assistance the predator may avoid sanction.

This bill makes the targeting of the exploiting adult the main event; the cooperation of the victim will not be required, nor will his or her evidence. The bill achieves this by introducing a court-issued child protection order that will restrain an adult from contact with a child (defined as being under 17 years of age) if the person is not the child's guardian as defined, and if the child resides with that person away from the guardian's home. The court must be satisfied that such residence would render the child open to sexual abuse or drug-trafficking, and must be of the view that the order is appropriate to the circumstances. The court may make such an order if:

the adult or other person residing at or frequenting the premises where the adult and child live, or have lived, has been convicted of a prescribed offence in the past 10 years; or

the adult or other person residing at or frequenting the premises where the adult and the child live, or have lived, has ever been the subject of a child protection restraining order; or

where the court is satisfied that the child is at risk of sexual abuse or is being exposed to drug-related conduct that is an offence under part 5 of the Controlled Substances Act 1985; or

where the court is satisfied, considering other related factors and the appropriateness of the order, that the child's residence or contact with the adult puts that child at risk of engagement in or exposure to conduct that is an offence under part 5 of the Controlled Substances Act 1984. This may include the supply of money by the adult so that the child may buy drugs, or the adult involvement of the child in drug consumption, manufacture or trade—even if that adult has not been convicted of a prescribed offence.

The ambit of the order relates not only to direct child sexual abuse; it may be made where the child is exposed to the committing of a child sexual offence on or in relation to another child. In addition, the defendant need not have committed a sexual offence or sexually abused the child in question. The court need only be satisfied that the child's contact or residence with a defendant may expose the child to the risk of sexual abuse, and that in the circumstances the order is appropriate. The applicable standard of proof is the balance of probabilities.

As always in such matters, the best interests of the child are paramount. In considering these the court must—and I repeat, must—have regard to the level of control or influence exerted by the adult over the child, the adult's criminal record, the adult's pattern of behaviour towards the child or other children and their justification of this, and the views of the child and his or her guardian. Ancillary to the child protection restraining order is the option of a temporary placement of the child in certain circumstances.

The child protection restraining order will expire when the child turns 17 or, if the court directs, at an earlier time. The ways in which an order may be sought, varied or revoked are identical to other restraining orders available under the Summary Procedure Act. For the child's protection the bill restricts the people who may be present in court and prohibits the publication of information that could identify the child. Furthermore, the bill extends the power to make orders beyond the Magistrates Court—to the Youth Court, for example—and penalties apply for a breach of the child restraining order, to a maximum of two years' imprisonment.

Child removal provisions also apply if the child resides with the person in question during the operation of the order. Importantly, the child may be forcibly removed should he or she not decide to leave voluntarily. Additional offences and penalties apply if there is a direction not to harbour, conceal or communicate with a named child in the custody of or under the guardianship of the minister. The direction will extend to attempts to communicate, harbour or conceal as well as the rendering of assistance to another person in communicating, harbouring or concealing a child. Such directions have been made possible by way of amendment to the Children's Protection Act. Furthermore, it will be an offence to harbour or conceal these children or to prevent their return or to assist others to do any of these things.

There is no onus upon the prosecution to prove that the defendant knew the child's placement circumstances or actively enticed the child. All that is required is proof that the person knew that the child was away from state care without authority at the time of the commission of the prohibited acts outlined above by that person.

The measures I have discussed will not wholly prevent child predators from carrying out their terrible plans, nor can they, by themselves, make better the harm that has been done—and is possibly being done even as we speak. While the bill cannot solve all the problems associated with this very difficult area, it will give parents and the state options in protecting and removing children and adults who would exploit them—effective options and substantial sanctions that were not previously available in this form.

These measures are intended to protect any child who runs from state care or from parents and who, by residing with the person who is to be restrained, is subject to or exposed to sexual abuse or drug offences. Indeed, for children not in care, the child protection restraining order will be the only option available to parents or guardians who themselves may make a complaint, save for a request to the police to exercise their powers to remove children from environments of serious risk. As I said earlier, the bill makes the targeting of the exploiting adult the main event. A damaged and vulnerable child in the thrall of such a person (for whatever reason) may not wish to cooperate in bringing that person to justice but cooperation will no longer be required.

In summary, the legislation before us provides additional ways in which the minister and his or her delegates, the courts and the police, parents and the community may deal with the insidious behaviour of child exploiters. I commend this bill to members.

The Hon. A. BRESSINGTON (17:39): I rise to briefly indicate my support for the second reading of this bill. This bill proposes significant reform as to how the state and parents respond to the harbouring of runaway teens. As I am sure members in this place and the other are aware, this is a significant issue that many genuinely loving families face when their children, to use the colloquial term, go off the rails.

I have met many desperate parents whose children are being harboured against their (the parents') will and, from conversations in hallways, I know that other members have had to face the difficult question posed by their constituents: 'How do we protect our son or daughter?'

The first reform relates to children under the guardianship of the minister. The Chief Executive of Families SA is to be given the power to issue a notice directing an individual not to communicate, harbour or conceal a child in state care if it is subjectively believed that it is necessary to either avert a risk that a child will be subjected to abuse or neglect or exposed to drug use or, more broadly, to prevent harm occurring to the child.

Failure to comply with a notice is an offence that can result in a maximum penalty of $4,000 or one year's imprisonment for communicating with a child, and $15,000 or four years' imprisonment for harbouring or concealing a child. A further offence of taking part in the harbouring or concealing of a child or preventing a child from returning to state care, where it is known that the child is unlawfully absent from a state care placement, is also to be created. This offence is not subject to prior direction or notification and carries a maximum penalty of a $12,000 fine or 12 months' imprisonment.

Both these measures attempt to overcome the limitations of the present offences, as outlined by Commissioner Ted Mullighan in his report 'Inquiry into Children in State Care', and repeated by the minister when introducing this bill. While I fully concur with the commissioner and recognise the need for and give my support to these new offences, I seek to make clear my reservations about the potential for their misapplication, specifically if but more likely when they are applied to family members of a child in state care.

Of course, there will be legitimate examples of where this should occur. However, from my dealings with Families SA and my knowledge of how awry the management of cases can go, I fear these new tools may be used not just to protect a child from a predator but to deny parental access. I beg the minister to keep a close eye on this and monitor this particular concern of mine very closely.

This is all the more likely when a particular parent or family member of a child removed becomes difficult to manage for a social worker who will ultimately be responsible for requesting a directive to be issued and briefing the CEO on its necessity. The power placed in the hands of the CEO, due to the nature of the system, is power given to social workers. I have encountered more than one case where social workers within Families SA have either misinformed or denied crucial information to the minister and his or her then representatives. I have no reason to believe that such deliberate deception has not occurred and will not occur with the CEO.

I have previously in this place, on numerous occasions, raised such endemic issues with Families SA and, along with the other honourable members of the Families SA select committee, I plan to do so again when that report is tabled tomorrow. An example of the potential for misapplication—that is, to anyone other than, in the words of the minister in her second reading contribution, 'those who are believed to be exploiting the child'—is a case which I was made aware of some time ago. A parent, distraught at having her children removed and not being granted access for one child's birthday, attempted to pass a birthday card to the child which was, tragically, contrary to the social worker's instructions.

If this was discovered and she was subsequently issued with a notice not to communicate, any further attempt would be an offence carrying a potential penalty of $4,000 or one year's imprisonment. I ask the minister to answer, prior to the committee stage, whether this would indeed be considered an application contrary to the intentions of the bill.

Of further concern is the potential, from my reading of the bill, for notices to be routinely issued to parents or other caregivers who lose custody without foreseeable prospect of access. The term' prevent harm' could have a very liberal application, particularly when the issuing of a notice is not justiciable. I seek a commitment from the minister, prior to the committee stage, that the routine issuing of notices is not intended and such an abuse of these provisions would not be tolerated.

The second substantial provision in the bill attempts to deal with the non-state wards who have run away from home. As I said at the outset, this is a significant issue. Parents whose child has run away, for whatever reason, and is refusing to leave what is often most undesirable circumstances and return home have found the present law most inadequate, and Families SA and the police apathetic. The statement, 'There is nothing we can do' is too often the response to a parent's desperate plea.

As identified by the Hon. Dennis Hood, there does appear to be a pattern to such cases. Parents will firstly beg and plead with their child to return. When such cases too often involve a rebellious teen who has been initiated into the world of drug use, this is often to no avail. The next port of call is the police who, as stated, explain that their hands are tied. Then some go to Families SA, which department duly informs the desperate parents that their child is not a priority or that they are being overprotective.

This leaves parents with nowhere to turn, which is why so many cases end up on our desk. To be fair, I am aware of several cases where members of the police force have initially endeavoured to return the child to their home. However, after they have made two, three or, in some cases, more attempts, it would seem that the child has been labelled as a recidivist runaway and assistance from the police becomes less forthcoming.

The proposed solution was the advent of the child protection restraining orders. It was made abundantly clear in the other place that this measure was devised by the Attorney-General's Department, in consultation with Families SA, in response to the aforementioned need. At present, under the bill, a police officer or parents, with the support of state agencies, will be able to apply for a restraining order against an individual who is harbouring their child where, on the balance of probabilities, it is shown that the child is being sexually exploited or exposed to illicit drug use, or that the person harbouring the child has been convicted of a prescribed offence in the previous 10 years, or subject to a previous child protection restraining order.

Notable aspects of the proposal include the prevention of an order where the defendant is a guardian; the ability of the court to impose such restrictions upon the defendant as are deemed necessary; and the ability of the court to order temporary placement, subject, of course, to any other custody orders.

While I wholeheartedly support the concept, as members may be aware, I intend to move substantial amendments to the threshold of the child protection restraining order. While I will, of course, go into detail at the appropriate time, I indicate that, in essence, the amendments will make it easier for parents to access restraining orders by lowering the trigger for an order to contravention of the child's best interests. The present threshold, while well intended, is too high for a parent to satisfy, even on the balance of probabilities, and effectively requires a parent to procure either a Families SA or police investigation prior to applying. The Hon. Dennis Hood, in his second reading contribution, said:

...the question is whether parents who have concerns about their children being harboured by a drug fiend or a paedophile will get the action they need from the department. Will there be genuinely swift action, as this bill envisages, or will they be placed in a queue while their child becomes hooked on drugs or taken advantage of sexually?

Experience indicates to me that parents must be fully empowered to initiate an application and prosecute an order, because reliance upon the department will lead to disappointment. My amendments provide that they will be so empowered.

I will very briefly give an example of how someone harbouring a teenager can perhaps be coerced very easily into returning that child. I had a constituent come to me about six months ago in relation to a 13 year old teenage girl who was living in Davoren Park with a gentleman who was well known to police and who had a fancy for young girls. This young girl had not been to school for some three months, so truancy was an issue. She had been observed under the influence of drugs and alcohol, and she had shared with her friends that she was engaging in sexual activities with this 35 year old man.

The family went to the police. The police knocked on the door and saw that the girl did not appear to be at risk of physical abuse. There was a roof over her head and she had a bed to sleep in and was being fed. The police then told the parents that there was not much they could do about the matter because the child refused to leave the premises. Her parents went to Families SA, and Families SA's response to these parents was that, if they had not been so strict at home, perhaps the child would not have run away in the first place.

Her parents then came to see me, and I took it upon myself to write a letter to this gentleman because the parents knew his name and address. I threatened him by saying that perhaps he was in breach of the Child Protection Act and that, if the child was not returned by the Friday following receipt of my letter, I would instigate an inquiry at the highest possible level into his activities with this child. By Thursday afternoon, at 3 o'clock, the girl was packed up and returned to her parents. So, it can be as simple as that.

I hope my amendments will give parents exactly that amount of power; that is, to go to the court and be able to say, 'My child hasn't been to school for one month, two months or three weeks, or whatever. This indicates to me that my child is at risk of harm. My child is a truant and a law is being broken in that regard. I want a restraining order against the person who is harbouring my child against my will. I want that child returned, and I want orders in place that ensure that I have authority over my child.'

I understand that there are some parents who do not treat their children well, and children flee because of that. Those children will not be affected by my amendments. With my amendments, there is no risk of a child being forced to return home to abuse because the key statement in my second amendment is 'in the best interests of the child', and the court can determine that from hearing the evidence that would be presented. I commend this bill to the council. I congratulate the Attorney-General and the Minister for Families and Communities for responding to the serious issues that have been raised about child protection.

The Hon. G.E. GAGO (Minister for State/Local Government Relations, Minister for the Status of Women, Minister for Consumer Affairs, Minister for Government Enterprises, Minister Assisting the Minister for Transport, Infrastructure and Energy) (17:52): By way of concluding remarks, I would like to thank honourable members for their support for this bill and take this opportunity to answer some of the questions asked during the debate. For those questions that I am not able to answer at this point, particularly those that have just been put forward by the Hon. Ann Bressington, I would seek the indulgence of the council to allow me to deal with those under clause 1 during the committee stage. The Hon. Stephen Wade, noting the opposition's support for the bill, has asked two questions, as follows:

The government has advised that Commissioner Mullighan was consulted on the proposed child protection orders. In relation to that advice, I ask the minister whether he could advise at an appropriate stage the answer to two questions:

1. Did Commissioner Mullighan endorse the child protection restraining orders?

2. Did Commissioner Mullighan explicitly advise that the orders would obviate the need for a secure therapeutic detention centre?

Commissioner Mullighan was not asked to endorse the proposal for child protection restraining orders. The proposal was brought to his attention as a courtesy, during his inquiry, and he noted it as an option for protecting children who run away from home and find themselves in the situations of exploitation to which he referred in his report. He did not include the proposal in his recommendations for the obvious reason that it is not about children in state care. This is a measure that will be used mostly for children who run away from home, not from state care, although, as noted in the second reading explanation, it can be used as an adjunct to the harbouring offences by state authorities.

Commissioner Mullighan did not advise the government that child protection restraining orders would obviate the need for a secure therapeutic detention centre. This bill does not set out to provide for the forcible detention of children for therapy, but neither does it set out to exclude this possibility in other legislation. It is a bill setting up restraining order procedures and other measures, including harbouring offences, that are directed against the exploitative adult. It is not legislation setting up measures dealing with the exploited child. The Attorney-General made the limited purpose of the bill quite clear in the final paragraphs of his second reading explanation, when he said:

The bill cannot resolve the difficulties that Families SA and the courts may have in arranging the future care of a child who has been exploited by an adult as I have described. It will simply help separate the exploitative adult from the child. This bill does not seek to pre-empt Commissioner Mullighan's recommendations about the care and control of these children or to limit the actions open to the government in response to those recommendations. Instead, it aims to strengthen the operation of division 2 of the Children's Protection Act 1993, which allows state authorities to remove children from situations of serious danger, by also providing a means of dealing with the exploitative adult. It is one more tool to be used in protecting intractable and highly vulnerable children from exploitation and harm.

The opposition also asked about the resources required for the measures in the bill. The Hon. Dennis Hood, of Family First, supporting the bill, put it this way:

What resources will be provided to the department to facilitate and implement these important protections for at-risk children?

The government will implement these changes from within existing resources. The Department for Families and Communities, in consultation with the Attorney-General's Department and SA Police, will develop appropriate policies and procedures to implement the new requirements. DFC and SAPOL will also prepare a communication strategy to raise staff awareness and facilitate appropriate staff training.

Support for children and young people affected by these changes will be provided through existing child protection services. The government already provides appropriate interventions and support for children and young people who are at risk. These interventions are further supported by the government's response to recommendation 42 of the Mullighan Inquiry into Children in State Care, where a pilot program has been established to provide intensive therapeutic support to children and young people in care who are identified as at risk through specialised and individual responses.

The full impact of the proposed changes is unknown at this stage. The Department for Families and Communities, with the Attorney-General's Department and SA Police, will monitor demand on government services and review the need for additional resources on a regular basis. I note the intention of the Hon. Ann Bressington, who has indicated that she will move amendments to the bill. The government will be supporting some but not all of those amendments, for these reasons.

The bill was designed to meet a particular problem that Commissioner Mullighan identified in his Inquiry into Children in State Care: the exploitation, by predatory adults, of children who run away from home or care, who get the child to sell or make drugs or use the child for commercial or personal sexual purposes in return for drugs and shelter. There is no evidence that these children are at risk of any other kind of abuse, unless that abuse is secondary to the sexual or drug-related abuse.

It appears that the Hon. Ms Bressington is trying to use this restraining order procedure to give parents a new legal means of controlling their children, and one that is not afforded by any other Australian jurisdiction. Her amendments would allow a parent to apply for a child protection restraining order against anyone with whom their runaway child is living, even if that person is genuinely caring for and not exploiting the child, as long as the parent thinks the arrangement is not in the best interests of the child (for example, because the parent thinks the child is not doing enough homework or is allowed too much freedom or simply because the parent thinks it would be better for the child to live at home, despite the plain fact that the child is unhappy there).

Most of these children have long histories of running away from home, and this is usually because there are intractable problems in their relationship with their own family. It will not help the situation to allow parents to drag people who are genuinely caring for these children before the courts as if they were predators in an attempt to force the child to come home. A law like this may well deter people from helping runaway children and put those children at even greater risk of exploitation.

The government is not prepared to expand the scope of the bill to this extent. It offered, however, to meet the Hon. Ms Bressington half way in allowing, as a further ground for restraint, that residing with the defendant would put the child at risk of physical, psychological or emotional abuse or neglect. Although, as I have said, this kind of exploitation usually only occurs in association with the kinds of exploitation already captured by the bill (providing shelter and drugs in return for sex or selling drugs), the government thought its compromise would at least be consistent with the policy behind the bill and would put appropriate limits on the discretion of a court to make a restraining order in cases where the child is not at risk of sexual abuse or exposure to drug activity. Unfortunately, the Hon. Ms Bressington would not accept that proposal, but I restate the government's willingness to work with the Hon. Ms—

The Hon. A. BRESSINGTON: On a point of order—

The PRESIDENT: Order!

The Hon. A. BRESSINGTON: It is actually not accurate what is being said here.

The PRESIDENT: What is your point of order?

The Hon. A. BRESSINGTON: I do not know—that they are not actually being truthful about what I did and did not agree to, because I was not consulted at all on the amendments that the A-G put up in my name.

The PRESIDENT: The honourable minister.

The Hon. G.E. GAGO: I am sure that the Hon. Ms Bressington will have ample opportunity to put her detailed response to this on the record, no doubt, during the committee stage. I am sure that she will have more than enough time to set the record straight.

The Hon. A. Bressington interjecting:

The PRESIDENT: Order!

The Hon. G.E. GAGO: I restate the government's willingness to work with the Hon. Ms Bressington to render her proposals into a practical form. I will provide further detail of the government's opposition to this amendment in the committee stage.

Bill read a second time.


[Sitting suspended from 18:01 to 19:47]


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