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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2021-10-28 Daily Xml
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Bills

Statutes Amendment (Attorney-General's Portfolio and Other Justice Measures) Bill

Second Reading

Adjourned debate on second reading (resumed on motion).

The Hon. C. BONAROS (16:26): Prior to the break, I was talking about the amendments that relate to the Children and Young People (Safety Act) 2017 which allow the Chief Executive of the Department for Child Protection to give a direction to prevent a person from communicating with a child who is in custody or under guardianship of the chief executive and the importance of that.

I said that I would repeat what I have said in this place before, that is, if you are going to remove a child from their family, albeit it for very good reason, then you better have a very good reason for doing so and you had better ensure that they are placed somewhere safer than they were previously and that they are protected. To date, you have not. To date, there continues to be systemic failures that go unaddressed to the detriment of those very kids who have been removed from their families.

I want to take a moment to reflect on a recent InDaily article, which included an interview with Jay Weatherill on this very issue. It is not often we hear from a former minister, in this case a former Premier, acknowledging their government got something monumentally wrong, but a few days ago that is precisely what Mr Weatherill did when he said, 'We got child protection wrong. But it's still not right.' It was his single biggest regret.

As highlighted by Mr Weatherill, this Marshall Liberal government has found to its discomfort that what happens inside families continues to occur under its watch. He acknowledged 'there isn't a child protection system anywhere in the world that's going to stop bad things happening' and we acknowledge that too. He said that with the best interests in the world 'sometimes bad things will happen' and that is unfortunately also correct.

He said, 'The whole investigation/removal paradigm is what's wrong with our system,' and yet our removal numbers are through the roof. That is also correct. He acknowledged 'the idea of removing children should be a last resort' and never in my view has a truer word been uttered than that by Mr Weatherill in this article in that respect. He said 'the aim of child protection is not to stay out of trouble but to learn to live in trouble'.

That is probably the most telling comment I took from this interview. It is the crux of the issue that we are dealing with, and it is at the heart of where we have gone so wrong with our child protection system. I do not accept that the political criticism of the former government or indeed the current government is unfair, and perhaps that is where I part company with the views expressed by the former Premier because from where I sit, and I have been outspoken on this issue as have others, nothing I say or do is done for political mileage.

We speak out and do so loudly because these issues are systemic because they continue to occur and they continue to let our kids down, and they result in extraordinarily tragic outcomes for our most vulnerable community members. That is the tragedy of our child protection system and that is why I think that more absolutely needs to be done in an apolitical sense to address those failures, but also in a political sense. It is also the reason we are fully supporting this amendment.

In terms of the remainder of the bill there are a number of amendments that we either do not support or are concerned about. We have asked questions and expressed concern about the amendment of section 84 of the Mental Health Act, as it has the practical effect of denying legal representation to those most likely to be able to least afford it and those who most need legal representation.

I agree with the Law Society that access to justice and legal representation are fundamental tenets of our justice system and especially for our vulnerable and marginalised people. I note the government's claim that most of these reviews are conducted on the papers, but this is a complex process, and those with mental health issues deserve and often need all the help they can get to navigate these so that they are not further disadvantaged.

This provision has, as I understand it, been in place for some nine years, and while I acknowledge the government's rationale for the change they are proposing, I am indicating now to the minister that this is something I would like to clarify on the record during the debate.

I note that the Hon. John Darley and the Hon. Robert Simms and, indeed, the Treasurer have all filed amendments to this bill. I indicate our support for the Treasurer's amendments, and I understand that the Hon. Rob Simms has amendments that accord with the concerns around the changes to the Mental Health Act that I have outlined, although I am not sure that we are actually proceeding with those amendments, but I would like the government to place on the record the assurances that they have provided to members or the rationale or explanations that they have provided to members in order to overcome the need for that amendment.

I have some questions about the amendment filed by the Hon. John Darley seeking an independent inquiry into foster care and kinship care, but as members in this place well know, we support a complete root-and-branch review and reform of the entire child protection system, and I think that is something that should be placed in that basket.

As I have highlighted, this is a large grab of amendments in one bill and in the very last days of this sitting year, many of which are minor fixes, fixing I think obsolete references or definitions, but there are some changes in there which I think are worthy of fleshing out a little further during the committee stage debate. With those words, I indicate our support for the second reading.

The Hon. R.I. LUCAS (Treasurer) (16:32): I thank honourable members for their contributions to the second reading and look forward to the committee stage.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. K.J. MAHER: I rise to briefly indicate that, as I have said, we will be supporting this bill. I think I indicated in my second reading speech there were concerns about the Mental Health Act, amendments to that act that are part of this bill. There has been discussion that has happened this morning that I think has put many members' minds at ease over that, so I can indicate we do not have amendments to move. I understand from discussions the Hon. Robert Simms will not be moving his amendment and will be supporting the government amendment, so that will be the sum total of my contribution in the committee stage of this bill.

The Hon. R.A. SIMMS: Further to the comments made by the Hon. Kyam Maher, I confirm that I will not be pursuing my amendment, the reason being that I have received advice from the government that a number of the agencies involved, including the Legal Services Commission, are supportive of the changes that the government has proposed.

In particular, the Legal Services Commission had expressed some concerns. I understand that if the changes were not implemented it could impact on their fee structures and obviously I do not want to see that outcome. On that basis, I will not be proceeding with the amendments. I think it would certainly be helpful if the government put on the public record the advice that he has given me and the Hon. Kyam Maher to satisfy the other members of this place.

The Hon. C. BONAROS: I thank the Hon. Mr Simms for those comments. I did receive information at the briefing. My understanding was that this issue had arisen post that. If we clarify this now, we can do away with any concerns and ensure that this is a fix that everybody is supportive of. I understand it applies to the automatic review of short-term treatment orders. I think it would be most helpful if the government placed some clarification on the record.

The Hon. R.I. LUCAS: Firstly, to both of you: can you just clarify what you are asking me to put on the record on behalf of the Attorney, because I have not been involved in discussions.

The Hon. C. BONAROS: The information that I received at our briefing was that this related specifically to the automatic review of short-term treatment orders. It is a timing issue, as I understood it. It relates to legal representation on reviews or appeals. The government's advice to me was that most of these reviews are conducted on the papers and we just want to make sure that everybody is comfortable with the change that is being made in relation to basically removing the legal representation entitlement in those situations.

The ACTING CHAIR (Hon. I.K. Hunter): The Hon. Mr Simms on the Treasurer's informal question.

The Hon. R.A. SIMMS: Yes, just to reiterate what the Hon. Connie Bonaros has said. I also want to apologise to members of this place. I should have sent an email around this morning explaining that I was not going to be pursuing the amendment, so I apologise for not doing so. The morning got away from me, so I do apologise for that.

The ACTING CHAIR (Hon. I.K. Hunter): I am sure honourable members will understand. I call the Treasurer in response.

The Hon. R.I. LUCAS: I am sure honourable members will be very forgiving, not having been involved in any of the discussions to which they have referred. I have been provided with some information. I will read that onto the record. I hasten to say that if that is not exactly what it was you were seeking, I am sure you will advise me and I will seek further advice.

What I have been provided with in response to the questions both from the Hon. Mr Simms and the Hon. Ms Bonaros is as follows. The Chief Psychiatrist is supportive of the amendment and SACAT have confirmed that it is an appropriate amendment that reflects the nature of the reviews that are undertaken under section 79. The Legal Services Commission, which facilitates the vast majority of legal representation for reviews under the Mental Health Act, has advised that it has no issues with the amendment proposed as there is no need for a legal representation for SACAT's pro forma review of the papers.

I am sure the Hon. Mr Simms will be gracious in accepting this explanation has been drafted on the basis he was moving the amendment, so it might seem a little like it is highlighting the inadequacies of the amendment. That is not intended by me. Let me give the substance of the government's position and see whether that responds to your questions.

This amendment would remove the amendment to section 84(1) of the Mental Health Act in the bill and is opposed. The effect of the amendment to section 84(1) is to exclude reviews under section 79 from the scheme for government-funded legal representation. Section 79 of the Mental Health Act requires SACAT to undertake reviews on specified grounds on its own accord, i.e. when a level 2 community treatment order is being made in relation to a child three months after the order was made; a level 1 inpatient treatment order was made after a person had previously been on an order which had been revoked or expired; an extension of a level 2 inpatient treatment order was made; a level 3 inpatient treatment order has been made in relation to a child three months after the order was made.

Amending the bill is consistent with and clarifies the manner in which the review scheme in the Mental Health Act currently operates. In practice, initial reviews of treatment orders under section 79 are conducted by SACAT on the basis of written reports and treatment plans; in other words, on the papers. That seems to be a phrase the Hon. Ms Bonaros has used.

These initial reviews are not the same as a review instigated by an agreed party. Rather, they are an automatic review by SACAT that was included as an initial safety measure. Legal representation would be counter-productive at this stage as it would delay reviews and potentially result in people being detained on short-term treatment orders for longer. SACAT has confirmed that there are no instances of legal representation being provided for reviews under section 79. This amendment does not affect reviews; it effectively appeals against earlier decisions such as those under sections 81 and 83.

The Chief Psychiatrist is supportive of the amendment and SACAT have confirmed that it is an appropriate amendment that reflects the nature of the reviews that are undertaken under section 79. The Legal Services Commission, which provides or facilitates the vast majority of legal representation for reviews under the Mental Health Act, has advised that it has no issues with the amendment proposed, as there is no need for legal representation for SACAT's proforma review of the papers. It does not see any issues with the amendment proposed by the government.

The ACTING CHAIR (Hon. I.K. Hunter): Clause 1: any further contributions?

The Hon. C. BONAROS: No, other than to indicate that we are satisfied that is in line with our understanding and with the response provided.

Clause passed.

Clauses 2 to 19 passed.

Clause 20.

The Hon. R.I. LUCAS: I move:

Amendment No 1 [Treasurer–1]—

Page 10, after line 25—Insert:

(1a) Section 10(1)(e)—after ‘order’ insert:

(including any condition the Parole Board is able to impose under section 11(1)).

Section 11 of the HRO act sets out the conditions the parole board can impose on extended supervision orders. Subsection (1) allows conditions to be imposed requiring the person subject to the order to reside at a specified address, undertake particular activities and programs, and be monitored by an electronic device.

Amendment No. 2, as moved, inserts an additional subparagraph (ia) to clarify the Parole Board's powers to place conditions limiting the movements outside the home of high-risk offenders under extended supervision orders. In practice, this may be a curfew or close supervision at home.

Amendment No. 1 is consequential on amendment No. 2. It makes a change to section 10 to clarify that the Supreme Court can impose the same conditions under section 10 as the Parole Board under section 11(1). There are a number of high-risk offenders. The people working with the HRO provisions regularly notice ways in which the act could be clarified or improved. These amendments have been included as part of the suite of amendments to the HRO provisions, in order to provide greater clarity for the courts, legal practitioners and those who may be the subject of such orders.

Amendment carried; clause as amended passed.

New clause 20A.

The Hon. R.I. LUCAS: I move:

Amendment No 2 [Treasurer–1]—

Page 10, after line 31—Insert:

20A—Amendment of section 11—Conditions of extended supervision orders imposed by Parole Board

Section 11(1)(a)—after subparagraph (i) insert:

(ia) remain at the person's residence during a specified period and not leave the residence at any time during that period except for a specified purpose, or in specified circumstances; or

The Hon. R.I. LUCAS: I am advised this is consequential, so I have already given an explanation for it.

New clause inserted.

Clauses 21 to 29 passed.

The ACTING CHAIR (Hon. I.K. Hunter): The Hon. Mr Darley, new clause 29A?

The Hon. J.A. DARLEY: I will be withdrawing this amendment for an independent inquiry into foster care and kinship care, to assist the government with its legislative agenda. I also filed this amendment under the Children and Young People (Safety) (Miscellaneous) Amendment Bill. I place on the record that foster and kinship carers are very anxious for this independent inquiry to proceed, but the government seems reluctant to bring their own legislation to a vote with this amendment and those of other parties.

Clauses 30 to 46 passed.

Clause 47.

The Hon. R.I. LUCAS: I move:

Amendment No 3 [Treasurer–1]—

Page 18, lines 6 to 16—This clause will be opposed

The amendment in clause 47 is no longer necessary, as the timing of the Ombudsman's annual report is dealt with in clause 40 of the Independent Commissioner Against Corruption Amendment Bill 2021. That bill recently passed both houses and is awaiting assent. Clause 40 of the ICAC bill inserts new section 29B into the Ombudsman Act. Subsection (1) provides that:

(1) The Ombudsman must, before 30 September in each year, prepare a report on the work of the Ombudsman's office during the preceding financial year.

I am therefore moving that clause 47 of this bill, which dealt with the same issue, be deleted.

Clause negatived.

Remaining clauses (48 to 55) and title passed.

Bill reported with amendment.

Third Reading

The Hon. R.I. LUCAS (Treasurer) (16:47): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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