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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2012-09-19 Daily Xml
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CHILDREN'S PROTECTION (HARBOURING) AMENDMENT BILL

Introduction and First Reading

The Hon. A. BRESSINGTON (16:56): Obtained leave and introduced a bill for an act to amend the Children's Protection Act 1993. Read a first time.

Second Reading

The Hon. A. BRESSINGTON (16:57): I move:

That this bill be now read a second time.

Today I introduce the Children's Protection (Harbouring) Amendment Bill 2012. This is a relatively simple bill that, despite its short title, does not actually seek to remedy the ongoing issues surrounding the harbouring of runaway teens. However, honourable members would be aware of the numerous times that I have raised issues in this place about the conduct and apparent abuse of power by Families SA.

This bill seeks to address my concerns about the apparent abuse by Families SA of an existing harbouring offence found in section 52AAB of the Children's Protection Act 1993, which empowers the chief executive of Families SA (although this power has been delegated to office supervisors) to issue a direction to an adult not to harbour, conceal or communicate with a child under the guardianship of the minister. To communicate with a child in breach of a direction is punishable by a maximum $4,000 fine or imprisonment for one year, and to harbour or conceal a child in breach of a direction is punishable by a maximum $15,000 fine or four years' imprisonment.

This offence, along with the offence of harbouring or concealing a child in state care, under section 52AAC and child protection restraining orders, was introduced by the government in its response to recommendations of Ted Mullighan QC's commission of inquiry into the abuse of children in state care.

Despite the term 'harbouring' having a relatively mundane meaning, namely the provision of shelter in the sense of providing a refuge, it is clear when reading Commissioner Mullighan's report that he refers to harbouring for the purposes of exploitation, reciting numerous examples of children being lured away from state care and being harboured by men and then sexually abused. It was this form of offending that Commissioner Mullighan sought to prevent when he recommended an offence comparable to section 52AAB to be created.

The government seemingly shared this intention when it introduced the Statutes Amendment (Children's Protection) Bill in 2009. Referring to the proposed section 52AAB at the time, the minister in this place stated during the second reading stage, and I quote:

These directions are aimed to protect vulnerable children who are in state care on the kinds of exploitation referred to by Commissioner Mullighan in his report.

This intention has been subsequently reiterated in Families SA's Statutes Amendment (Child Protection) Practice Guide and Procedures, which I accessed under the Freedom of Information Act 1991. When discussing section 52AAB, this guide summarises the evidence heard by Commissioner Mullighan, including, and I quote:

...the exploitation of some runaway children while they were on the streets performing sexual favours in return for food, money, alcohol or drugs and gifts—

and then details the directions under section 52AAB and how they are to be applied. Whilst the parliament's attention, when debating the Statutes Amendment (Children's Protection) Bill 2009, focused on the proposed child protection restraining orders, I did raise my concern in my second reading contribution that the harbouring offences could—and knowing Families SA, probably would—be applied to family members of children in state care as a case management tool. At the time I implored the minister to 'keep a close eye on this and monitor this particular concern of mine very closely'.

Unfortunately my fears were proven to be well founded. While hesitant to provide too much detail as the case obviously involves a child under the guardianship of the minister, I believe it justified and necessary to demonstrate the abuse to which I refer, and to again outline the case of a young woman aged 23, who was being prosecuted for breaching the direction not to communicate, harbour or conceal her 16-year-old brother who was under the guardianship of the minister.

For some time this young woman had been expressing to Families SA her concerns about her brother. She knew that he was using cannabis and other illicit drugs, that he was being bullied at school, that he was absconding at night from the residential facility in which he had been placed and engaging in risky and illegal behaviour and, further, that he was severely depressed, having made several threats of suicide to her and on Facebook.

On occasion the boy had absconded to his sister's house and, knowing the difficulties of being in care, having formerly been a ward of the state herself, she did not want to turn away her younger brother. Families SA, as is too common, overreacted, and had the police come and return him to his group home. After one such occasion, this young woman was served with a direction under section 52AAB of the Children's Protection Act preventing her from communicating, let alone providing shelter and comfort to her younger brother. I will point out that it had never been implied that this young woman, at the age of 23, was a threat to her brother's safety in any way, shape or form.

Having failed to provide the support the boy needed, one night, clearly distressed and again threatening self harm, the boy again reached out to his sister and turned up on her doorstep. She, of course, let him in; however, she also notified Families SA and the police the following day. In fact, it is my memory from the meeting with the young woman earlier this year that the police visited the home and were satisfied that the boy was in no danger at all. However, after the boy returned to Families SA some days later, the young woman learnt that she was to be prosecuted for harbouring her brother contrary to the direction under section 52AAB.

So, despite the assurances of the minister when introducing the offence that such directions would only be issued to those whose actions represented a real risk that the child would be abused, neglected or exposed to drug activity—none of which is alleged in this case—this young woman faced criminal conviction and potentially a maximum penalty of four years imprisonment for doing nothing more than trying to prevent her brother from harming himself.

Thankfully, I learnt earlier this week that, after some 12 months and questions being asked in this place, the charges against her have been dropped. However, as I understand it, she is still subject to the notice not to communicate with her brother, who has spiralled further out of control without his sister's love and support.

As I detailed in a series of questions prior to the winter break, this young woman is not alone in being prosecuted for communicating with, harbouring or concealing a family member in state care. In fact, all of the few convictions for offences against section 52AAB or 52AAC are actually against family members who, to the best of my knowledge, have never been identified as being a risk factor for the children.

As I have previously relayed, the sentencing remarks do not convey all the necessary details to assess whether these directions were issued contrary to the minister's stated intention for these offences. In fact, it would seem that the magistrates themselves were unsure of Families SA's original concerns about the defendants and hence why the notice had been issued in the first place. However, it is clear that in at least one of these prosecutions the defendant posed no danger to his niece, who had seemingly rocked up on his doorstep looking for a place to stay. Noting this, the magistrate only sentenced him to a small amount of community service.

Given these cases (which I will happily provide to members) and the prosecution against the young woman whose case I have outlined, it is clear to me that Families SA is using these offences as a case-management tool and not to protect children from the exploitation referred to by Commissioner Mullighan, as was intended.

One of the questions I asked the minister was whether, given the stated intention of section 52AAB, the police should be given the role of issuing these directions and prosecuting breaches rather than Families SA social workers. Having pondered this over the winter break, I have come to believe that this should be done and, knowing the minister would be unwilling to challenge this particular government agency over this, I have had this bill drafted, because I cannot in all good conscience know that this is going on and allow it to continue.

Essentially, I propose to remove the final decision from Families SA to whom such a direction should be issued and instead place this responsibility with the police—and let us go back to that case I mentioned where the police went to the house of the sister, made an assessment that the young brother was not at risk and that there was no need to remove him at the time and to allow him time and space to calm down. The bill does this by replacing the words 'chief executive officer' (which should in effect read 'Families SA office supervisor') with the words 'a senior police officer', defined to mean an officer at or above the rank of inspector.

Hence, as per the existing process for the prosecution of an offence of knowingly harbouring or concealing a child in state care under section 52AAC, it will be necessary for Families SA to enlist the support of the South Australia Police to issue a direction under section 52AAB, that is, to issue a direction to not have anything to do with this particular person who has run away from state care. In doing so, I place my faith in senior police officers who I hope will see an application against a family member such as the older sisters of a child under the guardianship of the minister for what it is: a case management tool and not based on genuine concern for the child's safety.

I would just like to explain what I mean by using it as a case management tool. I and other members in this place have probably heard on numerous occasions that Families SA, when they take children into state care for whatever reason, will distance children from their family, from their parents and from any relatives whatsoever. I believe this is done to try to get the kids to comply while they are in a care facility. Oftentimes this has the opposite effect: these kids rebel. They want to be with family. They actually want to have contact with their parents, who have not posed any real risk.

Most of these parents have reached out to Families SA for assistance. They are going through a tough patch, they have reached out and bang, their children have been removed from them. I have one such case in my office right now of a mother with seven children, who three years ago was living with an alcoholic husband and an alcoholic father. She reached out to Families SA and admitted she needed help because she was not coping.

Now she has seven children on a GoM18 order and no right of appeal against that decision. She has gone through; she has studied; she is now managing a family restaurant, a booming business, but is fighting this now as a parent. Six of her children are going to be sent to Victoria, to live with a family of whom I have photos: bongs on the table, drugs on the table. When challenged about the choice of carers, a Families SA social worker, heard by three independent witnesses, said, 'What's wrong with having a good time?'

These are the people who are making decisions to cut kids off from their families and their parents, and nobody, no minister, will step up and fix this. I heard the Hon. Mark Parnell yesterday give a great speech acknowledging that whole catastrophe of forced adoptions. We have had the Mullighan report about abuse of children in state care. We have had numerous inquiries into this department, but we do not fix the basic problems of the dysfunction of some—some—of these social workers, who have one of the weirdest agendas. It is not about the protection of children: it is about power over families, and it has to stop. It has to stop.

This bill, as I said, will not fix all of these problems, but it will at least put in place some measures to make sure that the legislation that this place and the minister genuinely passed to protect children from predators on the streets is used appropriately and not abused like every other piece of legislation we put through this place in the name of child protection.

I also hope that having SAPOL and not Families SA workers issue and serve the direction will reinforce to the recipient the severity of breaching such a direction. If that family member is indeed a risk and is issued with the direction under 52AAB and it is served on them by the police, they will know they are being watched. In one of the judgements referred to, the magistrate seemingly accepts that the defendant did not realise how serious a breach of the order would be.

To provide consistency with the other harbouring offences introduced by the Statutes Amendment (Children's Protection) Act 2009, I have also included a provision that will require a breach of a direction to be prosecuted by South Australia Police rather than the Crown on behalf of Families SA, as it is currently. The reason I have done this is because it is no surprise to members in this house to hear yet again that Families SA (some social workers within Families SA) think nothing of distorting facts or creating facts or fabricating a case in order to win. We heard that in the inquiry, we heard that they had a pervasive and toxic culture within that organisation and we heard it not only from constituents with a grievance but from professionals like Professor Freda Briggs and others who said there needed to be a good clean out of this organisation and retraining.

This particular provision will allow South Australia Police to determine whether they have the evidence for a prosecution for a breach of this order, rather than giving Families SA the opportunity to fabricate a case. As is detailed in the practice guide and procedures, the police prosecute the offence of harbouring and/or concealing a child in state care under section 52AAC and a breach of the child protection restraining order. Making the police responsible for the prosecution of a breach of a direction will also act as a further safeguard against the inappropriate use of these powers, as I have already stated.

Being detached from the case-benefits to Families SA in prosecuting an uncle or older sister (or, in a more recent case, a mother whose recently removed teenagers decided of their own volition to return home), the police will hopefully use their discretion and prosecute only those who pose a real danger and threat to a child.

As I said, I do not pretend that this bill will dramatically affect Families SA's operations nor meaningfully address the systematic dysfunction in the children's protection system here in South Australia. However, I hope it will restrict notices under section 52AAB being issued to those preying upon vulnerable children and not their family members who despite Families SA's assessments only want the best for them. I know I certainly did not and I do not believe this parliament intended for the young woman that I have mentioned in this address to be prosecuted for doing nothing more than trying to prevent her younger brother from committing suicide or harming himself over and over. I might add that as a result of Families SA's actions this young boy who was in state care has now disappeared over the border to Victoria, so neither Families SA nor his sister now know where he is, and that is as a direct result of their actions.

I leave this bill with the chamber, the members and the government. If the government does not want to support my bill, then draft one of your own but for God's sake this time don't come back and say, 'Unintended consequences: we can't do.' Just amend the bill that I have presented and cooperate with this because this is a most serious problem that is going on in this state day after day.

Debate adjourned on motion of Hon. C. Zollo.

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