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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2011-03-09 Daily Xml
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CHILDREN'S PROTECTION (REPORTING OF SUSPECTED CRIMINAL OFFENCE) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 29 September 2010.)

The Hon. K.L. VINCENT (19:56): I wish to briefly place on the record my support for the Hon. Ms Bressington's bill. The Hon. Ms Bressington must be commended for introducing what is a simple yet pertinent bill. It is the role of Families SA to look after our children, and this is evident by its mantra, which is, funnily enough, 'keeping them safe'.

As Families SA's role is to keep children safe, then it is perfectly reasonable for us to expect its employees to report matters to the police if there is a reasonable suspicion that a criminal offence is being or has been committed in relation to a child. It seems to me that there are too many children out there who slip through the cracks, so to speak, and that we as parliamentarians must do all we can to ensure their safety.

All too often we hear stories on the news and, indeed, in this place where the authority should have said something to the police about suspected criminal behaviour but did not. Sometimes this lack of action results in dire consequences. Frankly, this is not good enough, although I am sure I do not need to tell anyone in this place that. Our children deserve our protection and I will therefore be supporting this bill.

The Hon. T.A. FRANKS (19:57): I rise to speak on behalf of the Greens to indicate our support for the Children's Protection (Reporting of Suspected Criminal Offence) Amendment Bill, put before this house by the Hon. Ann Bressington. This bill seeks to insert a requirement within the Children's Protection Act 1993 that the CEO of Families SA report to the Commissioner of Police any case in which it is reasonably suspected a criminal offence has been committed against a child.

Based on our consultations with constituents, numerous examples where Families SA have had knowledge or evidence of sexual or other offences occurring against a child and have not referred the matter to an appropriate authority such as the South Australia Police, and our dealings with the department of Families SA itself, we support this amendment. Under current legislation, Families SA are not legally compelled to refer such offences to police and the decision is in fact left to the department's discretion. The Greens note that, based on the advice we have, this has created many problems in the past and no doubt will continue to create problems into the future.

We have been contact with a constituent over the past few months whose case has shown that Families SA systematically failed to notify police of instances of alleged child abuse where there appears to be harm caused to the child. This woman provided Families SA with reports written by an impartial third party at a children's contact centre who recorded conversations where the woman's child indicated that that child had been abused, yet this information was never passed on to police. In instances like this, mandatory reporting is an essential ingredient that could help prevent further child abuse.

This poor mother has had to go through the rigmarole of reporting the incident to the police herself, despite this compelling evidence at the children's contact centre and also after reporting it to Families SA. This case is, of course, ongoing and I will give no further details, but it is just one of many cases that highlight the need for greater transparency within Families SA.

In introducing the bill before us, the Hon. Ann Bressington referred to a further example in the case of Mr John Ternezis and his daughter who ran away from home at 13 and by the age of 14 was living with three adult men, falling pregnant to one of them. As the Hon. Ms Bressington stated then, this all occurred with the department's knowledge. These are far from isolated cases and the parliament must act to do everything in its power to ensure all allegations of child abuse are adequately and appropriately investigated by a body that has that power to bring perpetrators to justice.

I would like to take this opportunity to express the Greens' frustration with Families SA more broadly on the issue of child protection. Just last week, Leon Byner had a mother, and the Hon.—

An honourable member: It must be true then.

The Hon. T.A. FRANKS: —Ann Bressington mentioned this case earlier on this morning. The mother—

The Hon. J.S.L. Dawkins interjecting:

The Hon. T.A. FRANKS: —who I imagine would not appreciate jokes being made about her, given she has a 15-year-old daughter who is living with a 29-year-old man who has been providing the girl with drugs and is himself a drug addict. This woman called Leon Byner in absolute desperation, saying that her daughter had not attended school for the past three months, despite her best efforts to implore her to, and that the daughter had had a miscarriage two months ago, which suggested to her that the pair had engaged in illegal sexual activity.

This mother was told by SAPOL and Families SA that she needed to prove that her daughter was in a sexual relationship with the man before the police could intervene. It later came to light on that radio program that the mother could apply for a paedophile restraint order and domestic violence intervention order, but as Leon Byner put it:

Neither Families SA or any other government authority have actually given mum that information...she had to come to a radio station and plead for help before somebody would lift a finger.

Of the department, Mr Byner said, 'You're as useful as an ashtray on a motorcycle.' These are just three examples but these are not isolated cases. While the Greens remain frustrated by the department's consistent inability to protect children, this is nothing compared to the frustration felt by mothers, fathers, aunts, uncles, grandparents and friends in this state who report abuse, do the right thing and blow the whistle, only to learn that the matter has not been, and in some cases will never be, investigated by police.

Members interjecting:

The Hon. T.A. FRANKS: I propose that there is much to be done in the area of child protection in this state before any of us in this place can feel satisfied and make such jokes during discussions of this most serious issue. The department must be properly resourced and also properly directed to fulfil its duty of care and its responsibility to protect the children of this state.

Returning to the amendment proposed by the Hon. Ann Bressington, which effectively extends the mandatory reporting requirements to Families SA and, indeed, mirrors the wording of section 14(2) of the Queensland Child Protection Act, it will go some way towards addressing child abuse in this state. In cases where a parent has been falsely accused, this legislation will help to ensure allegations are investigated by police and that those who are falsely accused, whether or not they are a parent, can be absolved. That also is a very important part of the puzzle here.

More importantly still, it will ensure that perpetrators who abuse children—whether it be physically, sexually or emotionally—will more likely be investigated and brought to justice. Families SA should not be granted the discretion to report child abuse. They must report all cases where harm is happening to a child to the police. The Greens wholeheartedly support the bill and commend the Hon. Ann Bressington for putting it before us.

The Hon. S.G. WADE (20:04): I rise to speak on the Children's Protection (Reporting of Suspected Criminal Offence) Amendment Bill, a private member's bill brought to this council by the Hon. Ann Bressington. In addressing the bill, I want to acknowledge the advocacy of the honourable member.

As a former shadow minister for families and communities, I am acutely aware of the huge challenges facing child protection systems in Australia and nowhere less than in South Australia. There is goodwill in this parliament for things to be done better, but the Hon. Ann Bressington consistently reminds us of the urgency of addressing these problems. The Hon. Kelly Vincent similarly, is a champion of issues for people with disability.

Considering the hectoring that the Hon. Ann Bressington has been getting this evening from government members, it behoves those parties that are in government, or seek to provide the alternative government in South Australia, to take a bit of humility and to realise that, whilst governments cannot make the world perfect, crossbench MPs who are reminding us about urgent social challenges do a service to this house and to this parliament. They do not deserve to be mocked.

This bill highlights the interface between the child protection framework and the criminal law. The bill would require the chief executive of Families SA to report to the Commissioner of Police any case in which it is reasonably suspected a criminal offence has been committed against a child. The bill is based upon the wording contained in section 14(2) of the Queensland Child Protection Act. Families SA are often the first government agency to discover information that could amount to an offence. The Hon. Ann Bressington asserts in her second reading speech that there have been numerous examples that demonstrate that Families SA has not referred cases that warrant further investigation to the police. She in particular brings to the attention of the house the case of Katrina Ternezis.

Another recent example, of which I am sure honourable members are aware, is the South Australian school which recently had a bullying incident, which clearly amounted to an assault, yet it was not referred to police for investigation and possible charges. It is disputed whether the chief executive of Families SA is currently required to report such incidents to police, but I think the Hon. Ann Bressington's bill is to be welcomed because it ensures that the law will be clear that the chief executive of Families SA is under a duty to report.

Section 11 of the Child Protection Act 1993 currently requires government employees and a range of other community organisations to report suspected abuse or neglect as defined in section 6 of the Children's Protection Act 1993. Those reports are made to the Department for Families and Communities. A key difference between the bill brought before this house by the Hon. Ann Bressington and the Queensland Child Protection Act is the use of the term 'reasonable suspicion' by the Hon. Ann Bressington rather than the Queensland expression 'reasonable belief'.

My understanding is that this would broaden the application of the provision to include hearsay or other material, and so it would make the task of the chief executive easier in that they would be able to accept that the circumstances are true. Of course, it then is a matter for the police as to how they handle that evidence.

Other persons contracted or employed by Families SA are required to mandatorily report any suspected offence against a child to Families SA. The bill before us aims to extend the mandatory requirements of Families SA itself. In the case of Families SA the reporting would be to the police.

I reiterate that the opposition supports the second reading of the bill and the spirit of the proposal. We look forward to the summing up and the further consideration in committee. In that context, we would seek advice from the Hon. Ann Bressington and the government as to what is likely to be the cost of this proposal, if any. Secondly, we would appreciate the Hon. Ann Bressington and the government's interpretation of 'suspected criminal offence'. Basically how wide will the net be cast? With those few words, I indicate the opposition will support the second reading of the bill.

The Hon. CARMEL ZOLLO (20:08): The government opposes this private member's bill. In doing so, I place on record that members of the government have sat here quietly without any mocking, so we certainly do not appreciate the Hon. Stephen Wade placing that kind of nonsense on the record. The Hon. Ann Bressington introduced the Children's Protection (Reporting of Suspected Criminal Offence) Amendment Bill for an act to amend the Children's Protection Act 1993 in the Legislative Council on Wednesday 29 September 2010.

As has already been mentioned, the bill seeks to insert in the act the requirement for the chief executive of Families SA to report to the Commissioner of Police any case in which it is reasonably suspected that a criminal offence has been committed against a child. Of course this government strongly supports the importance of reporting criminal behaviour, in relation to children and young people, to the police. That is why this government already has in place legislation and policy not only to achieve this but to do so sensibly and, most importantly, in the best interests of the child or young person. On behalf of the government, I thank the honourable member for her recognition of the success of these measures in many instances.

In introducing this bill, the honourable member raised two examples to support the bill, stating that in neither case were the matters referred to police. The Department for Families and Communities (DFC) has advised that the police were notified in both instances. Nonetheless, I will outline the current situation. The Children's Protection Act establishes the safety, wellbeing and best interests of a child or young person as paramount considerations, and the act carries an implicit obligation to report an offence in relation to a child to police where necessary to enable an appropriate protective response.

To enable this connection, the South Australian government has in place the Interagency Code of Practice: Investigation of Suspected Child Abuse or Neglect, which provides a clear framework for managing information regarding criminal abuse or neglect, reporting criminal abuse or neglect and working collaboratively when investigating suspected child abuse or neglect with the emphasis on the best interests of the child and the most timely and effective intervention.

If this proposed legislation were to come into effect, it would unreasonably lower the bar for intervention. If this proposed legislation were to come into effect, it could put at great risk the possibility of a family being assisted to stay together and, oddly, if this proposed legislation were to come into effect, it would be likely to be criticised for being over the top, prescriptive and lacking in common sense—criticisms that generally come from the honourable member.

In her proposed amendments, the honourable member calls for referrals to the police to be made based on reasonable suspicion. To say that a suspicion is reasonable does not necessarily mean that it is well-founded or that the grounds of suspicion have to be factually correct. It also does not require that harm is being caused. Potentially, this means that the proposed amendments could lead to a range of matters being referred to the police for criminal investigation that are not assessed as requiring child protection intervention.

Such proposed legislation could also result in a great deal of duplication. For instance, someone may phone Families SA and their call could be assessed as not warranting a statutory child protection response. However, because it constitutes a reasonable suspicion, then the chief executive would be compelled to advise police. For example, a child playing outside in winter without shoes and socks may constitute a reasonable suspicion of child neglect. Available information may not indicate that statutory child protection intervention is required, but referral to police for criminal investigation will now be mandated.

As explained, where there is a risk to a child, there is already an obligation on the department to intervene and notify certain concerns to police. Also, there is a reasonable suspicion, it may not always be in the best interests of the child to involve police. For instance, referring a family to counselling and appropriate services will sometimes help more than a police investigation which would only cause more distress to the family and, in particular, the child. Forcing an investigation could potentially lead to a range of other issues and possibly the breakdown of a family that could otherwise be kept together.

We must also remember that it is police who assess information reported to them against relevant legislation, determine whether an offence may have occurred, whether (and, if so, what) further criminal investigation may be required and whether there is sufficient evidence to proceed with prosecution. The simple fact that Families SA has reported a suspected crime in relation to a child or young person to police does not guarantee that sufficient evidence is available to warrant or support further police action. This decision, rightly, rests with the police, not the DFC.

While I have already addressed the two cases presented by the honourable member, I feel it is also important to highlight that this proposed legislation would not be likely to help those situations, either. We all have empathy for parents whose children are living with them, including situations where their teenage children have left of their own accord. However, there is no legislation that sets out when a child should leave home, and introducing this legislation is unlikely to give parents the outcome they are wanting.

For instance, in such circumstances engaging a family with mediation services is more likely to assist in resolving a family's problems than instigating a criminal response that is more likely to escalate the conflict within a family. Reporting to police is not an end in itself under the Children's Protection Act. The safety, wellbeing and best interests of the child should always remain the priority. Therefore, I encourage all of those present not to support the proposed bill on the following grounds:

It would not alter the current legal obligation of the department.

It does nothing to further the best interests of the child. In fact, enacting such legislation could lead to a wrong, damaging response being applied in some situations.

It would duplicate work undertaken by police and DFC and divert police resources to cases where there is insufficient evidence to support allegations.

It would not improve the whole-of-government and non-government approach to addressing criminal offences relating to children and young people.

For those reasons I have outlined, I urge those opposite, and those who have already spoken, not to support the legislation.

The Hon. A. BRESSINGTON (20:17): I have to say that the Hon. Carmel Zollo's response is so typical of the government's response to a sensible bill that deals with situations that we hear about every day. We are talking about criminal offences being committed against children, and those offences should be brought to the attention of the police. I could give the council a dozen examples (but I will not) of cases where children have been exposed to the most horrendous of situations in which Families SA has been involved and it has never been brought to the attention of the police for a prosecution.

One of those cases involved a young girl who was given to a paedophile father by the Family Court and reported herself from the age of eight being sexually abused daily by her father, her brother and her brother's criminal friends. The mother reported this. The young girl reported this, herself, to social workers and never once was it brought to the attention of the police. That young girl is now 14 years old and a drug addict. You cannot tell me that early intervention would not have changed that little girl's life forever.

I can give the example of the family at Brahma Lodge with three children who are constantly being abused. A little girl eight years of age has been kicked across the front yard and kicked in the stomach by her father. The middle kid who is aged 10 tried to hang himself because he just did not want to be in that situation any more. These children are being abused and neglected, but none of this is reported to the police as offences. You cannot tell me that Families SA does not know that this crap is going on and they do not take the easy way out and not report it to police.

We can go to the other side of the coin where fathers and mothers are falsely accused—based on the equivalent, I might add, of criminal intelligence, nothing but gossip and hearsay—that they have abused or neglected their children. One mother this week took her little toddler to the hospital because he fell off his bike and bumped his head. She was reported for child abuse and that child was taken away from that mother. There was no proof and no evidence.

So, do not tell me the refusal of this government to pass this bill is about making things better for our children, in the best interests of our children, because we have this upside down and back-to-front. Children are being removed who should not be removed, and children who should be removed are being left in intolerable and untenable situations.

People who are perpetrating against these children deserve to feel the full force of the law. The only way we can make that happen is to ensure that a thorough investigation is undertaken based on evidence; not on hearsay, not on gossip, not on nasty people reporting their next door neighbour because they do not like the way they hang the washing out.

This is serious stuff. We have a department that is lacking in resources and struggles to answer the calls of tier 1 and tier 2 reports. We are expecting them to undertake almost a criminal investigation to prove their case when it is not their job. The backlash is that these children, these reports, go unattended to. We heard in the inquiry that sometimes they wait for a tier 1 report to go around three, four or five times before they will act on it. They leave it because they know it is going to come back around. They know but they let it go and they let it go.

This is about taking the pressure off Families SA and handing these investigations over to the proper authority, which is the police. We are talking about criminal behaviour, crimes being committed against our children, and coming up with the facts and taking the action.

I cannot believe that the Hon. Carmel Zollo said that, in some of these cases where we are talking about criminal offences against children, sometimes counselling would be better than police intervention. I cannot believe you said that. I cannot believe you would think that counselling is going to fix a problem where children are being abused and neglected, and we will refer them to a counselling service, for goodness sake.

This government needs to get a grip. This is a serious problem in this state. I have some figures here about the number of cases that were referred to Families SA. There were 1,220 tier 1 imminent risk notifications; and the majority of tier 2 and nearly all tier 3 notifications were closed, no action taken. Approximately 5,000 notifications were investigated out of approximately 21,000 reports. There were 21,000 reports, 5,000 investigations, meaning the majority of tier 2 and tier 3 notifications were closed, no action taken.

That is not because Families SA do not care. That is not because Families SA do not know that these children are at imminent risk. It is because they do not have the training and the resources to undertake the investigations that are necessary. I am asking this government to relieve the burden on Families SA.

It is a win-win situation: relieve the burden on Families SA having to do what they are not trained to do, what they are not qualified to do, and hand it over to the relevant authority. In the meantime protect our children, help clear the names of people who are being falsely accused and prosecute people who are perpetrating against our children. Who loses here? Those children who are being abused, neglected and referred to counselling sessions? Give me a break.

So, I condemn the government for its response to this bill. It is typical of a government who just does not get it, who just does not care, and at any cost would oppose a crossbench or opposition bill because it did not come out of their own little thought circle, therefore it cannot be good enough.

Members interjecting:

The Hon. A. BRESSINGTON: And, by the way, I just—

The PRESIDENT: Order!

The Hon. A. BRESSINGTON: Sorry; I do not want to continue—

The PRESIDENT: We are not turning the place into a circus. You sat down. Do you want to put the second reading? It is probably best that you let the President run the show, and we will all get on very well.

Bill read a second time.

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