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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-10-29 Daily Xml
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STATUTES AMENDMENT (CHILDREN'S PROTECTION) BILL

Second Reading

Adjourned debate on second reading.

(Continued from 15 October 2009. Page 3633.)

The Hon. S.G. WADE (17:44): I rise to indicate the opposition's support for the Statutes Amendment (Children's Protection) Bill. The bill amends the Summary Procedure Act 1921 and the Children's Protection Act 1993 and makes consequential amendments to the Criminal Law (Sentencing) Act to establish measures to prevent and punish the exploitation of runaway children.

The bill is part of the response to recommendation 47 of Commissioner Ted Mullighan's report of the Inquiry into Children in State Care presented to this parliament on 1 April 2008. Recommendation 47 states:

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 Mullighan inquiry was a traumatic revelation of the abuse of young people and children in South Australia, both within state care and in the wider community. The whole parliament shares a commitment and a responsibility to do what we can to reduce the risk of harm in the future.

This bill focuses on the situation of young people who have run away from home or from a care institution and taken shelter with an adult who supplies inducements, such as money, shelter, food, alcohol or drugs in return for the child providing sexual services to the exploiting adult or the service of selling drugs for the exploiting adult. Commissioner Mullighan highlighted in his report that a range of statutes are available to protect children in these circumstances. However, in practice, these statutes do not provide effective protection and are rarely used—first, because young people are often unwilling to incriminate the exploiting adult for fear that this will cut off their supply of inducements; and, secondly, the statutes tend not to be used because they are limited in scope and application.

We need to appreciate that runaway children have often had negative experiences of state intervention in their lives. Particularly if they have run away from state care, they are often likely to be suspicious of the state when it offers to protect them outside of care. The resistance of these young people to professional help makes them particularly vulnerable to harm. Commissioner Mullighan recommended that, even if it meant overriding the wishes of the young person, these young people should be protected. The opposition supports the recommendation and the bill as implementing that recommendation.

The bill seeks to provide protection by introducing additional measures that target the exploiting adult rather than the child and do not depend therefore on the cooperation or evidence of the child. The first element of the bill to which I seek to refer is the child protection restraining order. The bill introduces this order that will restrain an adult from having contact with a child under the age of 17 years if the person not being the child's guardian resides with that child somewhere other than in the home of the guardian.

The order is not an explicit recommendation of the Mullighan report, but it is consistent with it. To make such an order, the court must either be satisfied that the child's contact or residence with the defendant may expose the child to sexual abuse or drug offending, or that the defendant has in the past 10 years been convicted of a prescribed drug or sex offence, or been the subject of a child protection restraining order.

The court must nevertheless consider that, in the circumstances, the making of the order is appropriate, and the bill makes clear that the primary consideration of the court must be in the best interests of the child. The order may not be with the young person's consent but it needs to be in their best interests. It is not a punitive order on the young person. Being a civil application, the court must satisfy itself of the risk of sexual abuse or the exposure to drugs on the balance of probabilities.

A child protection restraining order may impose restraints on the adult and may provide for the temporary placement of the child. The child may want to stay with the exploitative adult and may return to or refuse to move out of the adult's home after a child protection restraining order has been made. So, to help the police and the child, protection officers who are dealing with these situations will be entitled under this bill (through amendments to section 16 of the Children's Protection Act) to say that if an order prevents a person residing with a child and the child resides with the person, the child will be taken to be in a situation of serious danger from which these officers are authorised to remove the child.

It is worth noting that this order does not have its origins directly in the Mullighan report and it is not explicitly recommended by him. This is an initiative of the government, and the opposition is concerned about some aspects of it. For example, the order is limited to drug or sexual abuse, but there is no doubt that children can be exploited by other means and in other ways; the most obvious and most common of which is where children are used in the commission of crime. In fact, it is noteworthy that in an earlier debate the use of third parties in the commission of crime was mentioned.

A child can be used in the commission of a crime such as stealing, committing a robbery, and so on. These activities would not come under the definition in the bill of their being at risk or exposed to sexual abuse or drug offending. We regard that limitation as concerning.

Considering the order is not recommended by the Mullighan report, it is no answer to this criticism to say that the limitations on the order reflect the focus of the Mullighan report. The government chose to be creative in developing the order—we do not criticise it for that; we support the order—but we think it could have been more creative in considering its relevant application.

The bill deals with directions not to harbour, conceal or communicate with children. The bill amends the Children's Protection Act 1993 to authorise the chief executive of the Department for Families and Communities to direct a person by written notice not to communicate with, or harbour or conceal, a named child who is under the guardianship or in the custody of the minister if he or she believes this is reasonably necessary to avert a risk that the child will be exposed to abuse or neglect, directly or indirectly, or to avert a risk that the child will be engaged in or exposed to illegal drug activity, or if the issue of the notice is reasonably necessary to otherwise prevent harm to the child.

These directions are aimed at protecting vulnerable children who are in state care from the kind of exploitation that was highlighted by Commissioner Mullighan in his report. The bill makes it an offence for a person without reasonable excuse to contravene or fail to comply with such a direction. I know that this power to direct is not available in relation to children who have left the care of their parents rather than the care of the state. The reality is that children are at risk, irrespective of whether their legal guardianship vests with their parents or the minister.

While Commissioner Mullighan's terms of reference were quite narrow in relation to the children about whom he was making recommendations, a group of other children, who are not under the guardianship of the minister, also need protection.

The third element of the bill is the offence of harbouring or concealing a child. The bill makes it an offence to harbour or conceal a child or to prevent a child's return to state placement, knowing that the child is absent from that placement without lawful authority. Neither offence requires proof that the person induced or enticed the child away, or knew the circumstances of the child's absence from the state placement. However, it will give state authorities and parents options to help separate vulnerable children from exploitative adults and, by so doing, protect them from harm.

For children who are not in state care, the only option—other than asking police to exercise their power to remove children from situations of serious danger—will be the proposed child protection retraining order. Parents or guardians of a child can make a complaint under the proposed child protection restraining order without having to go through SAPOL or the department, although the usual course would be to go through SAPOL.

The second reading explanation of the minister makes it clear that the bill does not make provision for future care. Recommendation No. 43 of the Mullighan report states:

That a secure therapeutic facility to care for children exhibiting behaviour placing them at high risk be established as a last-resort placement.

That the minister appoints a panel of suitably qualified persons to select and design the secure care therapeutic facility and determine the therapeutic services to be provided.

The government has decided to reject this recommendation. When the report was released the opposition publicly stated that it welcomed the recommendation. The opposition has raised concerns in the parliament in the past about a young woman who ran away and, within a period of about seven months, became addicted to both drugs and alcohol. She became pregnant and was the victim of exploitation. She became homeless. Subsequently, the child was placed 'for her own safety' in Magill Training Centre, which is a detention facility for children who have committed offences and are on remand in relation to those charges.

To find that a child who has ultimately become a victim, who has committed no offence, is being held in a prison facility was very concerning; so, when Commissioner Mullighan recommended a secure care therapeutic facility in his report, the opposition was well aware of the sorts of issues he was trying to deal with. The government's failure to accept recommendation 43 is condemning young people who have committed no crime, not even been charged with a crime, to incarceration in a youth detention facility.

In the House of Assembly the Attorney-General referred to the proceedings of the Mullighan Inquiry into Children in State Care. At a public hearing in Adelaide on 28 September 2005, the Attorney-General informed us that Commissioner Mullighan asked for a comment on the option of placing runaway children in forcible, albeit therapeutic, detention. The Attorney-General favourably quoted a witness who spoke against forcible detention. I thank the Attorney-General for that quote because what he has done is reiterate that recommendation 43 was a considered recommendation on which the commissioner received expert evidence and, having weighed the pros and cons, made a positive decision to make the recommendation in the light of that evidence. We believe the recommendation carries double weight on that ground.

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?

The opposition also raises its concern that the relevant agencies be adequately resourced to deal with their enhanced role under this act, particularly in light of 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. In conclusion, I indicate that the opposition supports the bill and looks forward to considering it further in the committee stage.

The Hon. D.G.E. HOOD (17:57): In my relatively short time in this place (nearly four years) I have seen a number of bills, of course, and I have seen a number of good bills—whether they be government bills, opposition bills or bills from the crossbenches, including my own party. I think I can confidently say I believe that this is one of the better ones that I have seen in that period. For that reason, I put on the record Family First's strong support for this bill.

The bill has many similarities to a bill that was introduced recently by the Hon. Ann Bressington, and I am grateful to see that the government has taken on board many of the honourable member's submissions in drafting this important new bill. We support this bill, as we supported the similar earlier bill presented by the Hon. Ann Bressington for which she deserves credit.

This bill responds to recommendation 47 of Commissioner Ted Mullighan's report of the Inquiry into Children in State Care, as tabled on 1 April last year, by more adequately dealing with young people who have run away from home or a care institution or who would take shelter with an adult who supplies money, shelter, food, alcohol or drugs in return for sexual services or for selling illicit drugs. Chapter 4.2 of that report, entitled 'Children in state care who run away: stopping the perpetrators', focused on deficiencies in the current law where children were being harboured by malevolent adults.

The current law is clearly inadequate, as the minister outlined during the second reading debate. According to the report, section 76 of the Family and Community Services Act 1972 is inadequate because it generally relies on the child being willing to give evidence that they were induced to leave their refuge (which they are often, of course, unwilling to do). Section 80 of the Criminal Law Consolidation Act 1935 makes it an offence to abduct a child under 16 years. However, that section requires proof that the child was taken—either enticed away by force or fraud. This section again would require the child to both report and give evidence against the offender, something that experience has shown is, indeed, quite rare. Section 99 of the Summary Procedure Act 1921 allows courts to make general restraining orders against a person. However, as the report states, the section requires proof that a person has been behaving in an 'intimidating or offensive manner on two or more separate occasions'. Justice Mullighan notes that section 99A of the Summary Procedure Act 1921 provides for the making of paedophile restraint orders. Although these do not require the evidence of the child, their applicability remains limited.

Lastly, section 38 of the Children's Protection Act 1993 permits the Youth Court to order parties to care and protection applications to restrain from contacting a child. However, this again has a limited application to parties within the proceedings. As the minister has also stated, investigating and prosecuting sexual or drug offending by an adult is also difficult if the young person, as the alleged victim or primary witness, will not cooperate. This bill attempts to address the deficiencies in the above situations I have just outlined through the introduction of child protection restraining orders, which will allow the courts to restrain certain adults from contacting children under 17 years of age if there is evidence of sexual or drug abuse. I note the Hon. Mr Wade's comments that the bill could be even broader than it is, and Family First would support the thrust of those comments.

The operative provisions are found in clauses 4 and 6, which give the department power to make an order to protect children in danger and also to remove a child in cases where the order has been breached. New section 52AAB provides that the chief executive may, by written notice, direct a person not to communicate or attempt to communicate with a specific child in any way or in a way specified in the actual notice during a specified period. Also, importantly, the chief executive may, by written notice, direct a person not to harbour or conceal or attempt to harbour or conceal or assist another person to harbour or conceal a specified child during a specified period. Family First strongly supports this policy.

Far too often on talk-back radio or in discussions with constituents or in the public arena I hear from distraught parents whose children have run away from home, only to be harboured by somewhat seedy characters involved in the drug trade, or to be taken advantage of sexually by an adult at a new address. The usual course of events is that the parents will first beg the child to return home, find that in many cases to be unsuccessful, later contact police and regularly be told that there is nothing the police can do about it. Family First does not accept that: we understand that it is currently the situation, but we do not accept that it is appropriate.

We are strong advocates for parents rights—with the responsibilities that go with those rights, of course—and we strongly believe that children require the care and protection of their parents whenever and whenever possible. If a child is being abused or neglected at home, there is the option of foster care and the appropriate agencies should intervene. There were some 645 applications for care and protection and investigation and assessment orders involving 1,158 children during the 2008 calendar year, resulting in many children being placed in foster care. These numbers are truly staggering.

I put on record my sincere appreciation for the work foster carers do in our community. When children are genuinely abused or neglected, foster carers step up to the plate to help heal the situation. They are the true contrast to the drug dealers and sexual predators to whom this bill applies, and they deserve the community's thanks for the care they provide to our state's neglected children.

While dealing with the issue of child protection I raise a comment made by the then minister for families and communities after he had just stepped into the portfolio back in 2004. In that year a departmental investigation found that 5 per cent of cases, where child welfare thought children were in immediate danger, were not investigated within a 24-hour period. This was in breach of the guidelines, and in a ministerial statement the minister called the figure, in his own words, alarming. On 26 May 2004, the minister also said, as recorded in Hansard:

I can assure the house that the resources will be provided to this organisation to achieve the required outcomes under the legislation, which is to investigate those matters within 24 hours. We know that investigations into the most serious of these matters are absolutely vital. It is vital that they occur within the 24-hour period and it is also incumbent upon us to give those involved the resources to do so.

However, a response to a question on notice I asked on 25 March this year, answered on 8 September this year, indicated the following:

The practice standard required that Families SA staff commence an investigation of Tier 1 notification within 24 hours...The Client Information System used by Families SA shows that in 2008 a response was commenced within 24 hours for [just] 84 per cent of Tier 1 notifications.

The so-called alarming figure of 5 per cent has now increased to 16 per cent, despite a promise at the time to provide whatever resources were necessary. I do not say that to embarrass the minister; in fact, that minister is no longer the minister responsible for that portfolio. I say it because this is a situation that deserves an urgent response. Clearly, the situation is getting increasingly worse.

I think this bill is a positive step in the right direction, and I commend the government for introducing it, because it will go some way to reducing that 16 per cent. However, so much more needs to be done now, because this is indeed a truly alarming situation. We spend a lot of time in this place passing bills on law and order and crime-related issues and, generally speaking, Family First supports those measures. However, I think that if we were able to address these measures at the very early stages of life we might find that a lot of these young people do not go off the rails in the first place and, therefore, do not end up in the criminal justice system later on. I think that this bill will take one step in the right direction towards reducing that 16 per cent, but so much more needs to be done.

On the face of it, that figure seems to indicate that the department is struggling under the load of child abuse and neglect notifications. I note that a recent answer to a question on notice that I asked indicated that there were some 33,658 notifications of child abuse or neglect during the 2008 calendar year, which is an absolutely staggering and gut-wrenching number. Each one of them represents a child who desperately needs help.

Another indication of a department struggling to cope comes from other answers to questions on notice recently supplied to me. Pursuant to sections 91B and 92A of the Family Law Act, judges and magistrates can request state child welfare agencies to urgently intervene in child custody and access proceedings if they have a fear that a child 'has been abused or is at risk of being abused'. Those sorts of requests are usually made of Families SA when grave fears are held by a judge for a child's welfare and safety. I can say with confidence that such requests would not be made lightly.

However, I was recently advised that, of about 30 such requests received by Families SA in 2007 from the family and federal magistrates courts to urgently intervene to ensure a child's welfare, it intervened only twice. On only two occasions did it intervene, after some 30 direct requests from judges and magistrates to do so. I think that is appalling. The government refused to supply data for 2008 beyond saying that it received 26 requests for intervention from 1 January to 30 September 2008. The Minister for Families and Communities has not provided the data with respect to how many times it intervened, but the wording of the response implied that no core interventions had occurred.

If the department is truly struggling, the question is whether parents who have concerns about their children being harboured by a drug fiend or a paedophile will get the action that they need from the department. Will they get 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? And there is the crux of this bill.

As I said, we strongly support this bill. It is a very good bill, and I am sure that probably every member in this council will support it. I hope that is the case. However, the rubble will hit the road when the issue of resources comes to the fore; that is, when this bill becomes law, will the department have the resources to make it happen? That is the key question. I hope so.

I indicate that Family First will support the second reading of this bill, and I look forward to the committee stage. However, I also ask the question of the minister: what resources will be provided to the department to facilitate and implement these important protections for at-risk children? This is a good step in the right direction, but the resources must be provided.

Debate adjourned on motion of Hon. J. Gazzola.

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