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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2011-05-04 Daily Xml
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CHILDREN'S PROTECTION (RIGHT TO RECORD CERTAIN CONVERSATIONS) AMENDMENT BILL

Introduction and First Reading

The Hon. A. BRESSINGTON (15:55): Introduced a bill for an act to amend the Children's Protection Act 1993. Read a first time.

Second Reading

The Hon. A. BRESSINGTON (15:56): I move:

That this bill be now read a second time.

The Children's Protection (Right to Record Certain Conversations) Amendment Bill 2011, which I introduce today, would empower constituents to record conversations in meetings with Families SA employees. As I have previously stated, I am aware of constituents who have already clandestinely recorded their interactions with Families SA. They do so out of fear of false allegations—a genuine fear of many—out of fear that commitments made during meetings will be denied and not honoured unless they can be proven; and for fear that, unless a recording is made, they will not be believed if they complain about an employee's conduct. Others simply desire to keep a record of, and be able to review, meeting outcomes and the steps they have been advised to take.

I would just like to go over one particular case, where I went to Whyalla to represent a constituent who had been accused of neglecting her 3-month-old baby and was accused of malnourishing that child. When we got to Whyalla, we went to see the family GP who had been looking after this baby since it had got out of hospital. He was quite happy with the child's development. The three children were taken from this mother, based on nothing more than a whim.

A hospital report was done on the baby's condition which said that it was in the 91st percentile of development for its age and that the hospital had no concerns for this child, yet the three of them, the baby and two older ones, were removed, and we had to sit through a 5½-hour meeting with three social workers to come to an agreement that they had absolutely no evidence for the action they had taken, that there was still no evidence after assessments had been done by medical professionals that there was anything wrong with this baby, and then the mother was required to go on a 6-month safety plan—for doing nothing! There was no evidence to support it; it was for doing absolutely nothing.

These social workers then insisted on a 6-month safety plan. That mother had to relocate from Whyalla to Adelaide, relocate her two children in school, and for that 6-month period she was not allowed to be alone with her three children. She had to move in with her brother and live in a house with four other children and two other adults and was not allowed even to pick up her children after school on her own. She was not allowed to take the children on outings on her own, and was not allowed to take them shopping.

There was no evidence to support this, and when we asked for this safety plan to be put in writing, the social workers did not want to do it. They did not want to give a final date of when this 6-month safety plan would be up and what sort of things the mother had to comply with to prove that she was not a negligent mother. The whole six months, this mother's life and the lives of her children were completely disrupted for no reason whatsoever.

There was no proof of what was being said in that meeting. Six months later, we have a meeting with social workers in South Australia, in Adelaide, from the Salisbury office who, for all the reports that we were required to accumulate—medical reports and psychological reports—they did not even read one of them. They closed the case; all done, and they had not even sighted this mother for six months, but she had relocated.

None of this was in writing. None of it was recorded, and I challenged the social workers about the fact they were not even reading these psychological reports that were done, the health reports that were done on the children, and the GP's reports—that they weren't even reading any of this—and this was all part of that safety plan. If they did not sight it, and record that they had read it, and sign off on it, they could quite easily say that the mother had not complied with any of it.

So, in those cases where you have an agreement made between the social worker and the parents or other family members, surely if social workers are refusing to put this stuff in writing, the parents have a right to record these meetings so that there is a record of exactly what is said, what is required of them and the fact that they have absolutely complied with the requirements made of some of these social workers.

While there are many potential scenarios in which a recording will prove to be beneficial, at the heart of each is the fact that a recording will provide an indisputable record of interactions between Families SA employees and constituents, and this is something that is sadly lacking at the moment. They get into court and it is a social worker's word against a constituent's word and, understandably, magistrates are very reluctant to go against the recommendations of social workers because, if anything does happen to these children, it comes back on the head of the magistrate.

To have these recordings to be able to be used in court proceedings will also provide, I think, a clearer path forward for magistrates to be able to make sure that they are not actually doing more harm than good by following through with care and protection orders. As I said, this mother from Whyalla had all of the evidence to show that absolutely none of the concerns were warranted at all. I believe this bill to be an improvement on my earlier bill, the Children's Protection (Recording of Meetings) Amendment Bill 2010, which I recently withdrew from this place.

I would just like to put on the record that I would like to thank the Hon. Stephen Wade for his input, and also crossbenchers who have given another perspective on this, I suppose, and also—

The Hon. S.G. Wade: Don't expect it from the government.

The Hon. A. BRESSINGTON: —exactly—and also, some of the constituents who have come forward and who have actually recorded these meetings and been brave enough to give them to me and put them on disk, so that I can view them myself and see the sort of concerns constituents have and that they are actually warranted.

In particular, this bill focuses on extending the ability of constituents to record meetings, as opposed to placing that onus on Families SA. It ensures that the limited resources available in child protection cases are not expended on recording equipment and the associated infrastructure. Additionally, my earlier bill required all meetings to be recorded, and hence it was conceivable that meetings in which the mundane or trivial were being discussed would need to be recorded by Families SA and then stored for some years, with the associated costs, for perceivably no benefit.

Placing this right with constituents has the advantage of making the bill cost neutral to the government—something I have come to recognise as being absolutely necessary to a bill's progress in this and the other place. Given that recording devices are now available with most mobile phones and can make audio or audiovisual recording, I do not believe that placing this responsibility with constituents who feel the need would be onerous. Additionally, the concern expressed to my office, through consultation, that crucial recordings may become corrupted or go missing will no longer be an issue.

When we were conducting the inquiry into Families SA, Professor Freda Briggs was just one of the professional witnesses who stated, quite clearly, that records go missing, files are changed and files are altered, in fact, social workers came in and gave evidence to the same effect. Therefore, putting this responsibility with the constituent guarantees that a record will be kept and they can rely on the records that would be presented.

This bill also has the advantage of giving constituents who find themselves involved with Families SA an absolute right, something that they have very few of currently while they are involved with that system. I have sat in on a number of meetings between parents and social workers where the parents have made it known at the beginning of the meeting that they intended to audio record the meeting and they have been told, in my presence, that if they were to continue to do that the meeting would be called off, it would finish, and that they were not allowed to record these meetings for their own benefit.

I was of the understanding that it is legal to make a recording of any meeting or any person only when you have informed them that is your intent, but apparently Families SA social workers are above that and they can terminate a meeting immediately if they are not comfortable with the fact that the meeting is being recorded.

A couple of those meetings that I sat in on were quite intimidatory and my question is: if it is an upfront meeting where genuine issues are going to be discussed and remedies sought, why would you not want it on tape and why would you not want parents to have a record of that when social workers, as I said before, often refuse to put this in writing for the benefit of the parents?

While the government may dispute this, unless you are in favour with Families SA, in particular the social worker handling your case, the reality is that you have few rights which cannot be taken away. My office has been working with one constituent who for six months was denied access, both in person and over the phone, to her children, something that I would consider a right unless there were safety concerns.

However, in this case there were no safety concerns; rather, the mother was simply dealt a cruel blow in the social worker assigned to her case. I can thankfully report that through the assistance of the executive director's office, that mother was able to get phone access just prior to Christmas and is now regularly seeing her children and, further, that social worker is no longer in the employ of Families SA.

If the recording of certain meetings legislation was to be in place, this mother would have had, at the very beginning of this, proof that the social worker was being spiteful, unprofessional and biased in the decisions that she was making. The lives of this woman and her children would not have been turned upside down for this long, with no contact at all being allowed, if she could have provided that visual or audio proof.

Even so-called voluntary custody orders, provided for by section 9 of the Children's Protection Act 1993, simply are not voluntary, with many constituents alleging that they are threatened that if they do not sign then the department will go for a court order, and to quote one social worker, 'We always get our court orders.' Sadly, the statistics show this to be the case. It is my hope that parents in such a situation will be aware of their right provided by this bill to record this interaction, and that doing so visibly will temper these threats.

Of course the intention of my earlier bill, and this bill, is the same and as such much of what I would have said when introducing the Children's Protection (Recording of Meetings) Amendment Bill remains relevant. For this reason I will focus today on the detail of this bill. The effect of the proposed subsection 57A(1)(a) is that any person will have a statutory right to make an audio or audiovisual recording of a conversation with an employee of Families SA in relation to a child protection matter, provided they first inform the employee of their intention to record.

If a child is present, the conversation may also be recorded, provided the person is a guardian of the child and if the child is of the age of 10 years the child is informed of the intention to record. While there is an obligation to inform the departmental employee, it is not a requirement to obtain their consent and, as such, any interaction following the notification can be lawfully recorded.

While it will, of course, be open to the employee to terminate the conversation, it is envisaged that recording will become so routine that this will be rare. Further, proposed section 57A(2) makes it unlawful to treat a person unfavourably on the ground that the person has made a recording. Hence, if the conversation is to convey anything of significance or is in some other way of importance, terminating the conversation would be, I believe, to treat that person unfavourably.

I have also ensured that those who are engaged by the department in relation to the child protection matter such as psychologists conducting psychological examinations are also covered. I have had numerous constituents allege that these so-called psychological reports are biased towards Families SA. Among those critical of Families SA, it is generally accepted that the psychological assessments are at best superficial and at worst simply guns for hire. This may be in part due to the heavy reliance by psychologists on the constituent's file as the basis of their assessment, with often only a single and sometimes brief face-to-face interview being held.

As constituents who have submitted a Freedom of Information Act request for their file will attest, the notes and information recorded in their file by Families SA employees are often heavily prejudicial against the constituent, even when the matters in question are subject to dispute. The ability to record these interviews will enable constituents to firstly ensure that the report submitted accurately reflects what was conveyed during the interview.

Secondly, in certain circumstances, it will allow a constituent to get a psychologist they have engaged to give a second opinion on an interpretation of an answer given to Families SA psychologists. Thirdly, it could be used in any complaint proceedings against a psychologist or Families SA. As I said in my previous speech, it could also be used to clear the name and reputation of a social worker who is being falsely accused of unprofessional or inappropriate conduct.

A recording made under proposed section 57A(1)(a) must be provided by the person within seven days if requested to do so by the chief executive. These recordings must be provided at no expense; however, given the relative ease of burning such a recording to a disk or even sending it to the department by email if sufficiently compressed, I do not believe this to be onerous. While proposed section 57A(1)(a) permits the recording of interactions between Families SA and constituents, proposed subsection (1)(b) enables parents or guardians of children to record interactions between themselves and their children. Again, as a condition, the conversation to be recorded will need to be held in relation to a matter under the Children's Protection Act, such as an access visit.

It is access visits that I had in my mind when drafting this clause, as many constituents have alleged to me that their children have disclosed abuse or neglect while in foster care, or more commonly in NannySA-run facilities, only for the disclosure then to be ignored or denied to have occurred even though the access was supervised by a social worker or other employee.

I cited as an example when I spoke to my earlier bill the case in which children during access spoke of being covered in school sores and how they were not being treated. His sister told of being sworn at and being told what bad children their mother had raised. This, of course, was denied. It was these parents who began recording the access visits and meetings they were having with social workers on the telephone. I put that on a CD and gave it to the chief executive, and it was not long after that this mother's children were returned to her.

In recognition that permitting the recording of meetings and phone calls is intended to assist constituents navigate the process, proposed subsection (4) guides and in effect places some limitations on who the recordings made under this bill may be provided to. The recordings may be used in any proceedings under the Children's Protection Act 1993 to any employee of the department; to a person acting as an advocate, including a member of parliament; to any complaints bodies such as the Health and Community Services Complaints Commissioner or the Ombudsman; and, of course, as required by law.

It is also my intention that recordings could and should be used in proceedings in the Youth Court if relevant, and this has also been provided for. I believe this bill to be a positive addition to the Children's Protection Act and can foresee it being of great assistance to constituents who presently find it a daunting experience when dealing with Families SA.

I would also like to say that I know and I understand that the Children's Protection Act and Families SA are there solely for the protection of children and that the psychological or emotional well-being of parents and family members is not of concern to them. However, when the department removes children from their family, from their siblings and from their extended family on nothing more than a whim, what greater child abuse could there be?

It turns those children's lives upside down for six months, 12 months or 18 months when the department refuses to admit that a mistake has been made and then builds cases against these parents for sometimes longer than 18 months. Those children's lives are absolutely changed forever when this sort of thing happens. We cannot deny that this happens because, as I said, I have numerous case files in my office alone showing that quite often the building of a case by a social worker is done to protect their job, their reputation and often to protect the department.

This was also attested to in the report that was handed down from the Families SA inquiry when five current social workers from the department came in to give evidence of this sort of carry-on. People who come up against this department, based sometimes (not always) on false allegations or an overzealous, inexperienced social worker, find themselves in a hole that they just cannot dig themselves out of.

Although the Children's Protection Act is there to protect children, if we do not protect the family unit as well and make sure that the actions that we are taking are warranted and needed and deserved, then we are letting these children down. I believe that it is time that we started to take a balanced view on child protection and the actions we take where child protection is concerned.

I hope that this council and this government will see that we have gone way too far one way and that there is a middle ground to be found here where parents can be supported so that when they make allegations or complain about the conduct of social workers we are, at least, able to consider that their allegations are possible rather than dismissing them as being mere disgruntled constituents. I commend the bill to the house.

Debate adjourned on motion of Hon. I.K. Hunter.

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