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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-12-03 Daily Xml
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STATUTES AMENDMENT (CHILDREN'S PROTECTION) BILL

Final Stages

The House of Assembly agreed to amendments Nos 3 and 4 made by the Legislative Council without any amendment; and disagreed to amendments Nos 1 and 2 and made an alternative amendment as indicated in the following schedule in lieu thereof:

Page 6, line 27 [clause 12, inserted section 99AAAC(2)(c)(ii)(A)]—After 'sexual abuse' insert:

Or physical, psychological or emotional abuse or neglect

Consideration in committee.

The Hon. P. HOLLOWAY: I move:

That the Legislative Council do not insist on its amendments Nos 1 and 2 and agree to the alternative amendment in lieu thereof.

The other place disagreed with amendments Nos 1 and 2 passed by the council and agreed with amendments Nos 3 and 4. The other place passed an alternative amendment in place of amendments Nos 1 and 2. I recommend that the committee not insist on its amendments Nos 1 and 2 and agree with the amendment made by the other place.

The reasons the other place disagreed with amendments Nos 1 and 2 are as follows. The advance made by this bill in offering restraint of the predatory adult to protect children at risk of sexual abuse or drug activity is already considerable. Amendments Nos 1 and 2 would have fundamentally changed the nature of this restraining order and allowed it to be used in ways not contemplated by Commissioner Mullighan when he identified the problem this bill seeks to remedy.

The amendments would have allowed a court to make a child protection restraining order against a person on the simple ground that it is not in the best interests of the child to reside with that person. The order could have been made against a person even though there was no evidence that residing with the person put 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 a court having to be satisfied, at the very least, of a risk that the person being restrained would, without restraint, harm another person.

If amendments Nos 1 and 2 had become law, how would a court have determined whether living with a person was in a child's best interest? It would have had to evaluate all other possible living arrangements for the child. What if, in that inquiry, it found that neither living with this person nor living with a parent who was seeking the restraining order was in the child's best interests? Where to then? Is this something we want a busy Magistrates Court to be doing?

How would this relate to the Youth Court's jurisdiction in child protection matters? Although the court should make the child's best interests the primary consideration in deciding whether to make a child protection order and in determining its terms (and the bill already requires this in new section 99AAC(3)), the child's best interests should not also be a ground for a child protection order. Making it a prime 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 a person, a 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 both. 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 a proof of conviction. If there is a relevant conviction for a child's sex or drug offence, then the risk of harm is assumed, it is a given and there is no need to prove a risk of harm. Proof is on the balance of probabilities and not on the higher criminal standard, as for all kinds of restraining orders.

The grounds for restraint that were proposed in amendments Nos 1 and 2 would have been used by some parents inappropriately, and in these cases would have increased the workload of the courts unnecessarily. Most importantly, if child protection restraining orders can be used against people who offer genuine shelter to troubled run-away 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? They are the very people who, in the interests of the child, have no importance whatsoever—predators who will exploit that child.

In relation to the amendment made by the House of Assembly, the government was prepared, if amendments Nos 1 and 2 were disagreed to, to broaden the scope of the bill by adding an additional ground for restraint that is based on a risk of harm. The amendment recommended by the government in the other place, and which was passed unanimously there, 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 exposure to unlawful sexual or drug activities, that are already covered by the bill that some members have raised in debate. Importantly, it links the need for restraint to a risk of harm and keeps the best interests of the child as a primary consideration for the court, rather than as a ground for restraint. I recommend that the committee agree to this amendment.

The Hon. A. BRESSINGTON: I am prepared to withdraw my amendment and accept the government's amendment, but I make very clear that I do so reluctantly. I do so basically because of the usual threat of the bill being pulled if the Attorney-General does not get his way. I make very clear from the beginning that negotiations with the Attorney-General about these amendments began in July this year. We reached agreement on the two amendments I put forward that the government is now rejecting. I have the following email, dated 22 September:

I am following up on suggested amendments to the Child Protection Act. I can confirm that the Attorney-General supports the amendments proposed.

That is amendments Nos 1 and 2. In September he was agreeable to them: it made sense to him to include the term 'best interests of the child'. I understand that he then got hammered by the child protection department of Families SA and workers there, who said that they did not want the words 'best interests of the child' included in these amendments, even though the courts understand 'best interests of the child', the Youth Court uses the term and Ted Mullighan used it. It is through pressure from that department that the Attorney-General has withdrawn his support for these amendments and has watered down this legislation.

The idea of my amendments was to provide parents with a reasonable pathway to the courts, based on reasonable suspicion, which is also terminology used in the Children's Protection Act, in order to be able to protect their children. We now have 'balance of probabilities', which still means that parents cannot go in there based on a reasonable suspicion. They actually have to have proof. Unless they have hard solid proof, they will be required to have evidence that their child is being sexually abused or exploited or is consuming drugs, and that has not worked in the past without solid proof. None of that will change. Tacking on psychological and emotional abuse is just a fluff to make it appear that we are doing something. This bill was intended originally for kids in state care. I tacked on these amendments to this because there are literally hundreds of parents out there whose kids, at that rebellious age, are running away because they simply do not want to live by their parents' rules, not because there is abuse, neglect or anything else going on. They want a free and easy life, and they are promised that kind of life with these people who harbour them.

These parents, who are trying to get their kids back in order to instil reasonable boundaries and bring them up according to their family values, are getting no assistance at all, and that is what my amendments were intended to do. But the Attorney-General obviously has decided to bend under pressure from the department. As I said, the tail is wagging the dog, and I think it is shameful. This will come again, and I will again propose this amendment. From now on, any complaint I get, after the 500 I already have in my office, will go directly to the Attorney-General's email box, not mine, because I am not handling this stuff any more.

It is about time the Attorney-General and the Minister for Families and Communities actually had to deal with this stuff themselves instead of relying on us to raise it in question time, in motions or via select committee inquiries in order to get them to face up to the fact that these laws are not working. During the negotiations, the clear inference was—and this is the last thing I am going to say—that parents have no rights, that they simply have the responsibilities. That is not how it works. This is a final right. Many parents had a lot of hope in this amendment that it would give them a way to get their kids back and get them on track. It is not about kids being abused at home: it is about rebellious teenagers, and we have all been there and done that.

The Hon. S.G. WADE: I ask the minister whether the amendment proposed by the House of Assembly would allow an order to be imposed where a child is exposed to criminal activity.

The Hon. P. HOLLOWAY: With the government's amendment obviously sexual abuse and drug use are covered, but that behaviour would need to relate to physical, psychological or emotional abuse or neglect. I think we should acknowledge that Ms Bressington has not got the amendments that she might have wanted but, as a result of the alternative by the government, I think she should recognise that she has achieved a widening of the power, and that should come under that title of 'physical, psychological and emotional abuse or neglect' which is pretty broad. It should cover the situation envisaged by the honourable member.

The Hon. S.G. WADE: I appreciate that the minister says the government's amendment does expand it, but I find it surprising that the government has not taken the opportunity to protect young people from what we have clearly seen in recent years, which is where criminal elements try to engage minors in criminal activity. I hope that this council will lead the parliament again in the future in trying to expand protection for young people. This government seems determined to keep this narrowly drawn when the reality is that, in so many other areas of child protection, we want to broaden the scope so that we can have tools available to us to protect children when they need it.

The Hon. P. HOLLOWAY: The honourable member is talking about someone leading them into criminal activity but, I think if you can establish that, I would have thought it would be pretty easy to establish that they were in danger of physical, psychological or emotional abuse or neglect.

The Hon. S.G. WADE: I do not agree. I think the minister is simply wrong. A child, a young person, a member of the gang of 49, for example, might thoroughly enjoy their criminal life. The damage to them, their future prospects and their development may be quite severe. To use the terms of the Hon. Ann Bressington, there is no doubt that allowing a child to remain in a situation where they are engaged with a criminal gang is not in their best interests. I am surprised to think that a court would find that it was emotional or psychological abuse for an adult to allow a child to engage in criminal activity in their company. Again, I think it underscores the wisdom but perhaps not the perfection, as there may be defects in the proposal by the Hon. Ann Bressington.

There is a considerable amount of wisdom in what the Hon. Ann Bressington proposes, and the opposition is willing to acquiesce to her suggestion that we concede on this occasion. However, we will be keen to work with her and other members of this council to try to lift the standard of protection to be offered to children and young people, in spite of the government's reluctance.

The Hon. A. BRESSINGTON: I would like to ask the minister a question, now based on the balance of probabilities of physical, psychological or emotional abuse. What kind of proof will parents now need to produce, under this amendment, to be able to go to the court and get a restraining order? What level of proof will they need?

The Hon. P. HOLLOWAY: They have to provide a level of proof that meets the test of 'on the balance of probabilities'. They would have to provide some evidence. I should say that that is the lowest possible test. No court is going to give an order without any evidence at all, presumably, on anything. As with any order, there has to be a threshold, and the balance of probabilities is the lowest level of that threshold.

The Hon. A. BRESSINGTON: If we are going to base child protection issues on the balance of probabilities and parents are going to require that level of proof but police will not investigate these cases—and they do not investigate these cases—how does a parent, without the child's co-operation (which is highly unlikely) gather that evidence?

The Hon. P. HOLLOWAY: That is not really an issue for the matter we are debating now.

The Hon. A. BRESSINGTON: It is. In fact, that is the point. There are parents like John Ternezis, for example. I do not know if the minister has ever read that chronology but, even when his daughter became pregnant (at the age of 15) to an older man, it was not enough proof to enable him to get his daughter back.

I am asking for a gauge as to how much proof a parent will require even with these two fluffy little bits of psychological or emotional harm added. That does not give parents any recourse as to how they gather evidence when the police and the child protection agency will not investigate and give parents the evidence they need.

The Hon. P. HOLLOWAY: This is covered by the bill. With that young girl, not only is a criminal offence being committed but she would be at risk of sexual abuse. That is the whole purpose, I would have thought, of this bill, in that it will cover that situation. If it does not, then I guess the honourable member has every right to come back here—we probably all would. One would hope and expect that the bill, as a whole, will address those sorts of issue.

The Hon. A. BRESSINGTON: I just want to make the point that it was a crime before this bill and nobody did anything about it. It was already an existing crime that had been committed, involving sexual exploitation and the provision of drugs to a minor. It was already happening. I am asking now where is the difference in the level of proof that parents will need in terms of this amendment compared to the laws that are already there, where crimes were already being committed and were not being investigated?

The Hon. P. HOLLOWAY: The point is that this bill now offers the parents the chance to get a restraining order. That did not exist before, and that is the whole point.

The Hon. A. Bressington interjecting:

The Hon. P. HOLLOWAY: I do not necessarily concede that.

The Hon. A. BRESSINGTON: Once more—

The CHAIRMAN: I am a bit—

The Hon. A. BRESSINGTON: I know—I am sick of it, too.

The CHAIRMAN: No, but would there not be evidence in the way of DNA with a pregnant 15 year old?

The Hon. A. BRESSINGTON: Sorry?

The CHAIRMAN: Would that not be evidence?

The Hon. A. BRESSINGTON: They could not even get it investigated, and that is my point. My amendment would have allowed parents access to the courts based on a reasonable suspicion (a 15 year old pregnant while residing with older men) that a crime had been committed and that the child was at risk.

However, they could not get police or child protection workers to investigate the case, even though the child was in the care of the minister. How is that going to change now? Parents will still not be able to have access or gather that evidence for themselves unless, of course, the child co-operates, which is highly unlikely. Parents cannot request a drug test, and they cannot request a physical examination. How do they get the evidence if the police and child protection workers do not investigate?

The Hon. P. HOLLOWAY: Criminal defence investigation is a matter for the police. What has changed with this bill is that parents can put their case to the court. I hope that, in cases such as that mentioned by the Hon. Bressington, it will work and prove successful, but time will tell.

The Hon. A. Bressington interjecting:

The Hon. P. HOLLOWAY: Given the amendment is broad enough, they just have to show that it relates to physical, psychological or emotional abuse or neglect, in addition to the existing grounds of sexual abuse and drug offences, which have already been agreed to in discussion on the bill. One would expect that, in cases such as the one the honourable member mentioned, it would be broad enough and not impossible for parents to establish a case to the court.

They can do that on the balance of probabilities—they do not have to get the DNA evidence—to show that the young person would be at risk of physical or emotional abuse. Obviously, it will depend on the judge but, if a prima facie case could be established that the person had been impregnated while in that situation, if I were the judge I know what conclusion I would reach. The parents now have the capacity to bring that before the court in terms of getting an order.

The Hon. A. BRESSINGTON: Does that mean that, under this bill, if parents can have access to the courts and achieve a restraining order, if on the balance of probabilities their child is at risk of harm, they can now request through the courts that their child take a drug test, a psychological evaluation, a physical examination or a pregnancy test? Will parents have the right to gather their evidence via the courts?

The Hon. P. HOLLOWAY: The order would be directed against the predator, so the parents would go to the court and seek an order to remove the young person from the predator. Essentially, that is the issue.

The Hon. S.G. WADE: I want to pick up on the point the minister made in relation to the balance of probabilities being the lowest burden of proof.

The Hon. P. Holloway interjecting:

The Hon. S.G. WADE: I appreciate the distinction the minister is making between beyond reasonable doubt and the balance of probabilities but, considering we are not talking about a criminal jurisdiction, my understanding is that the reason we are talking about the balance of probabilities in this case is that restraining orders across the criminal jurisdiction have that balance. However, I cannot see why we do not make a special provision in special circumstances. Our responsibility to protect the most vulnerable members of our society is surely higher.

The Hon. Ann Bressington's formulation of the best interests of the child leads us, if you like to use criminal terms, towards words such as that the court has a reasonable suspicion of these negative behaviours and so forth. I do wonder why the government is persisting with the balance of probabilities, which I suppose in layman's terms might be 50 per cent plus 1, rather than a phrase that the minister has already used in his comments, namely, a prima facie case; a reasonable suspicion. We are not talking about protecting an adult's right not to be falsely accused: we are talking about the state's responsibility to be pro-active in protecting children from harm.

The Hon. P. HOLLOWAY: My understanding is that reasonable suspicion is a higher test than the balance of probabilities.

The Hon. A. BRESSINGTON: If that is the case, why are we not amending the Children's Protection Act? The department can remove children from their parents based on reasonable suspicion, but parents cannot go to the courts to get their children back in order to protect them themselves based on reasonable suspicion: they have to prove balance of probabilities. The state here has all the power: the parents have none. I believe this was a direct intention in the amendment of this bill: to make sure that the parents do not have equal rights to those of the department.

The Hon. P. HOLLOWAY: All I can suggest is that the honourable member look at amending that act. We are talking about a different procedure here; we are talking about a different change. If the honourable member wishes to deal with that, that is obviously something the 52nd parliament can look at and maybe address. I would suggest that it is not an issue that we can address here in the context of this bill.

The Hon. S.G. WADE: I agree with the minister that it is worthy of consideration in the next parliament. On whether or not the term reasonable suspicion means more or less than balance of probabilities, I take the minister's advice, but my point is still that it should be possible for the state to put a lower threshold for the protection of children, because we have a higher responsibility.

Motion carried.

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