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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
2015-06-04 Daily Xml
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Children's Protection (Implementation of Coroner's Recommendations) Amendment Bill

Second Reading

Second reading.

The Hon. K.J. MAHER (Minister for Manufacturing and Innovation, Minister for Automotive Transformation, Minister for Aboriginal Affairs and Reconciliation) (16:50): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation and explanation of clauses inserted into Hansard without me having to read it.

Leave granted.

The Bill I present to the House today seeks to meet the Government's stated intention to work expediently to enact the legislative amendments to the Children's Protection Act 1993 recommended by the State Coroner, Mr Mark Johns in his findings of the Inquest into the Death of Chloe Lee Valentine.

You would be aware that Mr Johns' findings, which were handed down on 9 April 2015, detailed 21 recommendations for change.

On 13 April 2015 the Government resolved to support 19 of those recommendations.

The status of the two recommendations which are not being progressed immediately is as follows:

Recommendation 22.13 which relates to adoption as an alternative placement option, was supported in principle and will be given consideration in light of the outcome of the review of the Adoption Act 1988 and the Royal Commission into Child Protection Systems; and

Recommendation 22.9, which relates to prohibition of the transport of a child under 12 year of age in a chauffeured car unless in the custody of an employee of Families SA, is currently subject to further work prior to consideration by the Government's Working Group which is overseeing implementation of the Coroner's Recommendations.

The Children's Protection (Implementation of Coroner's Recommendations) Amendment Bill 2015 seeks to amend the Children's Protection Act 1993 to implement three of the Coroner's recommendations; recommendations 22.2, 22.11 and 22.12.

Recommendation 22.12

The Bill amends the objects of the Act to make it plain that the paramount consideration in the administration of the Act is to keep children safe from harm and that maintaining a child in her or his family must give way to the child's safety.

Government amendments passed in the House of Assembly add a further object, which sets out that a decision maker must have regard to a child's views in making decisions under the Act. This was included in response to feedback provided from the Guardian for Children and Young People and others, which was provided following the introduction of the Bill.

The Bill also removes the fundamental principles set out in section 4. This amendment ensures that the objects of the Act are clear, and are not complicated by a further section setting out other matters to be considered when implementing those objects.

Recommendation 22.11

The Bill amends section 6 of the Act to include a definition of cumulative harm, which is to be considered as a relevant factor in making decisions about the care of a child. The Bill provides that in assessing whether there is a significant risk that a child will suffer serious harm or a child has been abused or neglected, relevant officers will take into account not only the current circumstances of the child but also the history of the child's care and the likely cumulative effect of that history.

This amendment provides for proper consideration of the effect of the kind of chronic neglect that was present in the life of Chloe Valentine by ensuring notifications and episodes of neglect and abuse are not considered by decision makers in isolation.

Recommendation 22.2

The Bill will amend the Act to include convictions for particular offences within a new definition; qualifying offence. This will capture any person who has a conviction in respect of a child previously born to them, or for whom they were guardian, for criminal neglect, endangering life, causing or creating risk of serious harm, manslaughter or murder. This definition also captures convictions for an attempt to commit the preceding offences, offences to which the finding of a Court under Part 8A of the Criminal Law Consolidation Act 1935 applies, as well as corresponding offences in other jurisdictions.

The range of qualifying offences is broader than the Coroner's recommendation of murder and manslaughter. This includes offences of criminal neglect, causing serious harm, acts endangering life or creating risk of serious harm, together with the attempted forms of these offences. The attempted forms of these offences are also captured.

Under the Bill, the Chief Executive must, if he or she becomes aware that a child is residing with a parent who has been found guilty of a qualifying offence, issue an instrument of guardianship in respect of the child. The child specified in the instrument will, for all purposes, be under the guardianship of the Minister for a period of 60 days.

Government amendments passed in the House of Assembly have clarified that the 60 day guardianship period commences from either the service of the instrument of guardianship, or its lodgement at court, whichever is earlier. This updated the earlier provision of the Bill which set out that this period was triggered solely by the lodgement of the instrument with the court. This will address situations where a child may be born on a weekend and the instrument of guardianship served at that time, however its lodgement at court may not be possible until the following week.

The Bill requires that as soon as practicable within the guardianship or restraining notice period, the Minister must apply to the Youth Court for a care and protection order under Division 2 of the Act. If additional time is required to investigate the child's circumstances, the Bill makes provision for the Court to grant an extension of time on application of the Minister.

Under the Bill, a newborn child who has not yet been discharged from hospital will be taken to be residing with a person if the child is likely to reside with the person, for example the biological mother, on being discharged.

While the Coroner's recommendation focussed on the actions of the biological parents of a child, it is noted that a person that has committed a qualifying offence may reside or intend to reside in a household with a child that is not their own and this may pose a significant risk to the safety of the child. For this reason, the Bill further provides that if the Chief Executive becomes aware that a child is residing with a person (other than the parent of the child) who has been found guilty of a qualifying offence, the Chief Executive must issue a restraining notice to the offender unless the Chief Executive is of the opinion that it is inappropriate to do so in the circumstances.

Under the Bill a restraining notice may prohibit the offender from:

Residing in the same premises as the child;

Coming within a specified distance of the child's residence;

Having any contact with the child except under supervision;

Having any contact at all with the child.

Consistent with the instrument of guardianship, a restraining notice will apply for a period of 60 days and the Minister must, as soon as practicable, apply to the Youth Court for a care and protection order. As is the case for instruments of guardianship, the Minister can apply to the Court for an extension of time.

Amendments moved by the Government in the House of Assembly establish that following the issuing of an instrument of guardianship or a restraining notice, the following actions are permissible:

assessment of, or investigation into, the circumstances of the child subject to the instrument or notice under section 19;

application for an investigation and assessment order in accordance with section 20;

taking a child for medical and other professional assessments for examination, tests or assessments under section 26.

Additionally the Government amendment to section 27 of the Act obviates the requirement for a family care meeting prior to application for a care and protection order where an instrument of guardianship or restraining notice has been issued.

To support identification of those guilty of qualifying offences, the Bill requires a Court that finds a person guilty of such an offence to provide information relating to that finding of guilt to the Chief Executive as soon as practical after the person is found guilty.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Children's Protection Act 1993

4—Substitution of section 3

This clause substitutes section 3 of the principal Act, clarifying the objects of the Act so that keeping children safe from harm is the primary object, or the paramount consideration. Further objects are set out in new subsection (2), but they are secondary to the need to keep children safe from harm. The new section also requires decision makers to have regard to the views of the child.

5—Repeal of section 4

This clause repeals section 4 of the principal Act.

6—Amendment of section 5—Provisions relating to dealing with Aboriginal or Torres Strait Islander children

This clause inserts a new subsection (a1) into section 5 of the principal Act. This is a relocation of current section 4(5) and is consequent upon the repeal of that section.

7—Amendment of section 6—Interpretation

This clause inserts a new subsection (4) into section 6 of the principal Act. The new subsection makes it clear that, in assessing the risk of harm to a child for the purposes of the Act, or the fact of whether a child has been abused or neglected, the accumulated effect of any harm across the course of the child's history must be considered, and not just the circumstances existing in relation to the child at the point in time of the assessment.

8—Amendment of section 19—Investigations

This amendment is consequential to clause 14. It requires the Chief Executive to cause an assessment of, or investigation into, the circumstances of a child to be carried out where an instrument of guardianship or a restraining notice has been issued under the new provisions.

9—Amendment of section 20—Application for order

This amendment is consequential to clause 14. It allows the Chief Executive to apply to the Youth Court for an investigation and assessment order where an instrument of guardianship or a restraining notice has been issued under the new provisions.

10—Amendment of section 26—Examination and assessment of children

This amendment is consequential to clause 14. It allows an employee of the Department to take a child to a person or place for the purpose of having the child professionally examined, tested or assessed where an instrument of guardianship or a restraining notice has been issued under the new provisions.

11—Amendment of section 27—Family care meetings to be convened by Minister

This amendment is consequential to clause 14. It disapplies the family care meeting requirements where an instrument of guardianship or a restraining notice has been, or is to be, issued under the new provisions.

12—Amendment of section 37—Application for care and protection order

This clause inserts new subsection (3) into section 37 of the principal Act. The new subsection (consequential upon the insertion of new Part 5 Division 3) requires the Minister to apply to the Youth Court for a care and protection order under Part 5 Division 2 as soon as is practicable after he or she issues an instrument of guardianship or a restraining notice under new Part 5 Division 3. The new subsection also sets out the grounds for such an application, namely that the initial instrument or notice was properly issued.

13—Amendment of section 38—Court's power to make orders

This clause inserts new paragraph (ea) into section 38(1) of the principal Act. The new paragraph allows the Youth Court to revoke an instrument of guardianship or restraining notice where an application contemplated by section 37(3) has been made.

14—Insertion of Part 5 Division 3

This clause inserts new Part 5 Division 3 into the principal Act, as follows:

Division 3—Chief Executive to take action in relation to persons with qualifying offences

44A—Interpretation

New section 44A sets out key terms used in the new Division 3.

Of particular note is the definition of qualifying offence, those being the offences that enliven the requirements of the new Division. Those offences are murder, manslaughter, criminal neglect, an act to endanger life or causing serious harm, or an attempt to commit such an offence, where the victim is a child and the offender a parent or guardian of the child. It does not matter whether the offence was committed before or after the commencement of the new Division.

44B—Application of Division

New section 44B provides that new Division 3 only applies to children born in the State after the commencement of the new section who are not the subject of a guardianship order under another Act, for example the Guardianship and Administration Act 1993.

44C—Temporary guardianship instruments and restraining notices

New section 44C(1) requires the Chief Executive to assume guardianship of a child if the Chief Executive becomes aware that the child is residing with a parent who has been convicted of a qualifying offence, being the offences defined in new section 44A. Those offences include interstate offences. This is achieved by Chief Executive issuing an instrument of guardianship.

New section 44C(3) requires the Chief Executive, if he or she becomes aware that a child is residing with a person who is not their parent but who has been convicted of a qualifying offence, to issue a restraining notice to the person, prohibiting the person from doing the things specified in the notice, such as residing in the same premises as the child.

The new section also makes provision in relation to procedural requirements for instruments of guardianship and restraining notices, and creates an offence for a person to contravene a restraining notice. The new section also provides that a newborn baby will be taken to reside with a person if the baby is likely to reside with the person when the baby comes out of hospital.

As soon as practicable after the Chief Executive issues an instrument of guardianship or a restraining notice, the Minister must make the application referred to in the amended section 37 of the principal Act.

44D—Court may grant an extension of time

New section 44D allows the Youth Court to extend the guardianship period or restraining notice period (that is, the period of time an instrument or notice is in effect) if the court thinks it appropriate to do so.

44E—Evidentiary

New section 44E provides an evidentiary presumption in respect of instruments of guardianship and restraining notices.

44F—Information to be provided to Chief Executive

New section 44F requires a court that finds a person guilty of a qualifying offence to provide to the Chief Executive prescribed information relating to the finding of guilt.

Debate adjourned on motion of Hon. Mr Stephens.


At 16:52 the council adjourned until Tuesday 16 June 2015 at 14:15.


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