CARE AND PROTECTION OF CHILDREN BILL 2007 Second Reading Speech

Northern Territory Second Reading Speeches

CARE AND PROTECTION OF CHILDREN BILL 2007

(This an uncorrected proof of the daily report. It is made available under the condition that it is recognised as such.)

Ms SCRYMGOUR (Family and Community Services): Mr Deputy Speaker, I move that the bill now be read a second time.

The primary purpose of this bill is the care and protection of children and young people, including the care and protection of children at risk of harm and exploitation, such as child abuse and neglect. The bill also emphasises the need to intervene early to prevent children’s exposure to harm, and to support families to care adequately for their children. The bill repeals the Community Welfare Act which commenced in 1984. It is important legislation, a key component in a range of measures taken by a civil and caring society such as ours to protect and care for its more vulnerable members.

We all know the impact and legacy of past child welfare policies and legislation on Aboriginal Territorians. The Community Welfare Act that this bill replaces took a significant and positive step forward by acknowledging the damage done by these misguided policies and practices, recognising the importance of family, community and culture within Aboriginal society, and ensuring that Aboriginal children removed from their families because of concerns about their safety would, wherever possible, be placed with their extended family or other Aboriginal community members.

The Community Welfare Act was also the first Australian legislation to make the reporting of suspected child abuse and neglect mandatory by all members of the population. It has served Territorians well, however it reflects the values and practices of the people of the Territory more than 20 years ago. It is now time to update and build on this experience to provide legislation that is in keeping with the current thinking and action.

The Community Welfare Act has been reviewed and all aspects of its operations examined. Expert advice has been taken, an extensive literature review has been made and interstate and overseas practices examined. Further, a Territory-wide consultation process was developed. This involved running 26 public forums and actively engaging with a number of special interest groups, and with various Northern Territory government departments. All of these processes have informed the drafting of this bill.

The bill I am introducing today provides a modern and contemporary legislative framework to ensure that children and young people in the Northern Territory are safe and well cared for within their families and by other persons or organisations having responsibilities in relation to children. The key characteristics of the new legislation compared with existing legislation involves:

· a comprehensive approach that includes measures to prevent harm and exploitation of children;
· strengthening of provisions to support families to care for their children;

· continuing the support for young people leaving the care of the CEO from 18 years of age until they have reached 25 years of age;

· provisions to move a child to a safe place;
· introduction of a screening system for child-related employment;
· establishment of a Commissioner for Children;

· broadening the scope of regulated children’s services; and

· provision for the establishment of review teams and a Child Death Review and Prevention Committee.

Mr Deputy Speaker, I will now describe in more detail each of the chapters that comprise the bill.

Chapter one introduces the bill, establishing specific objects and principles and defining key terms and concepts. Part 1.2 describes what the act is about. Of particular note is that the act provides for the care and protection of persons under the age of 18 years, referred to as children in the bill, with provisions for the care and protection of certain young people between the ages of 15 and 25 who have been children in the CEO’s care. I draw members’ attention to this first section, as it encapsulates the new approach in this legislation.

The objects of the bill seek to go beyond the immediate protection and safety of children and are as follows:

To promote the wellbeing of children, including:

· to protect children from harm and exploitation and to maximise the opportunities for children to realise their full potential;
· to assist families to achieve the object above; and
· to ensure that persons and organisations having responsibilities in relation to children have regard to these objects in discharging those responsibilities.

Part 1.3 of the bill includes guiding principles to assist interpretation and implementation of the act. This is an innovation of the previous act, reflecting interstate and overseas practice. It also reflects community interest in having an explicit statement about the beliefs that guide the intent and operation of the legislation incorporated into the bill.

Included in these principles is recognition that families have the primary responsibility for the upbringing and development of children while society as a whole has a responsibility to safeguard the wellbeing of children, and to support families in that task. Principles are also set out in relation to dealing with children and decisions involving them. The best interest of the child is established as the paramount concern, and a basis is described for determining these interests.

Section 12 of this part outlines principles specific to Aboriginal children. In particular, there is explicit recognition of the major role of kinship groups, representative organisations and communities in promoting the wellbeing of the Aboriginal children. Part 1.4 describes an expanded range of key terms and concepts, including when a child is in the need of protection and parental responsibility for a child.

Chapter 2 is concerned with safeguarding the wellbeing of children. It lists powers and obligations in the CEO of the department administering the act. This is a shift from the present act, which assigns a number of these powers to the responsible minister. It makes transparent the reality of day to day responsibility for the operations of the legislation, and it is consistent with the current public administrative practice. The first part of this chapter deals with these powers and obligations. Division 2 of this part continues the current general reporting obligations on anyone who has reasonable grounds to believe that a child is in need of protection, that is, when a child has suffered or is likely to suffer harm or exploitation because of an act or omission of the parent of the child.

Mr Acting Speaker, mandatory reporting by all Territorians is an acknowledgement that the protection of children and young people is everybody’s business. However, as part of the bill I introduce today, the government will be extending mandatory reporting so that anyone working in child-related employment must now also report concerns that a child has suffered, or is likely to suffer harm or exploitation when it is believed that a person other than the child’s parent or guardian has committed it. In the first instance, these reports are to be made to the police, as they will be essentially be criminal rather than protective matters.

Child-related employment is defined under section 184 of the bill, and any work that involves or may potentially involve contact with children, including child protection services; children’s services as defined under Chapter 4 of the bill; education services; juvenile detention services; hospitals and other health facilities; clubs and associations, including sports clubs where there is a significant child membership; religious organisations and a number of other services. For example, under the new mandatory reporting requirement, a teacher is now mandated to report her or his suspicions that another member of staff, or some other person who is not the child’s parent, is sexually abusing a child. Similarly, a child care centre staff member is mandated to report their suspicion that a child is being physically abused by another staff member, or by another member of the public.

Mr Acting Speaker, professionals and other staff already have the right and professional and ethical obligations to report suspected harm or exploitation of a child by someone other than a parent or caregiver. Extending the mandatory requirements will provide greater security and clarity of action for those who identify suspected harm or exploitation, and demonstrates the government’s commitment to protecting children from harm. It is consistent with mandatory reporting provisions in other jurisdictions, which mandate some professionals to report suspected harm of a child, regardless of whether the person harming the child is a parent or not.

The division also includes the protection for persons who make a report in good faith, and the duties of the party to whom a report is made.
Division 3 establishes the power of the CEO to make enquiries and to investigate reports. This division provides the CEO with greater powers to make enquiries if there are concerns about a child’s wellbeing, and to seek information from a range of agencies involved with the child or family.

Division 4 is established to ensure that the CEO has sufficient powers to perform the functions required under the act.

It is accepted wisdom these days that one size does not fit all when responding to concerns about children’s care. Families who have difficulty coping with or raising a child or children require a carefully tailored response that equips them to look after their child or children well. This division ensures the CEO can request assistance from public authorities, assist others to better coordinate their services to children and families, arrange for services to support families, and arrange for the temporary placement of a child who is residing with their parent if it will safeguard or promote the wellbeing of the child.

Division 5 ensures that, as far as possible, the wellbeing of a child is safeguarded and promoted through agreements between parents of the child and other interested parties. Included in this division is a provision for family mediation conferences to be convened to discuss the best means of safeguarding or promoting a child’s wellbeing.

Division 6 of this part ensures that the CEO has the power to take urgent action for children who might be in need of protection. These provisions clearly give effect to the primacy of family responsibility for raising children. It is only when a child is in need of protection and there is an urgent need to safeguard a child’s wellbeing that the state will intervene, take the child into provisional protection, and then only as a necessary short-term measure.

Division 7, Subdivision 1 introduces a new power for authorised officers to move a child to a safe place. The object here is to enable officers to take actions on a temporary basis, and in limited circumstances, to ensure that a child is removed from a situation where their wellbeing is at risk, such as when a child is found on the streets at night without adequate supervision. Under this subdivision, an authorised person can take custody of the child and move them to a designated safe place until the child can be returned to a parent’s care. A safe place does not include a prison, lockup or other places of detention. Authorised officers are required to take all necessary steps to inform a parent of the child and/or CEO of their action. Moving a child to a safe place is intended to be a protective measure, and not a basis for intervention to prevent criminal activity. It is also important to note that parental rights and responsibilities for the child are not limited by actions under this section.

Subdivision 2 establishes the power of restraint, search and seizure to prevent a specified child from being harmed or from harming others. It sets out the way in which any searches must be conducted.

Subdivision 3 enables the issue of a warrant by a magistrate for the purposes of investigation, monitoring or apprehending a child in the CEO’s care, and provides for the execution of a warrant. It establishes an offence for non-compliance with a warrant.

Part 2.2 defines and makes provisions for a child in the CEO’s care. A new requirement is introduced that requires a care plan to be developed for each child in the CEO’s care, and provision is made for a regular review of these plans. Although this is the current child protection procedure, including this requirement in legislation reflects the importance attached to planning and monitoring to ensure ongoing attention is paid to each child’s care and wellbeing.

Division 4 of this part requires the CEO to enter into a placement arrangement for a child in his or her care. These arrangements may be with a parent, another family member, or other individuals approved by the CEO. A child is to be appropriately informed about a proposed placement arrangement.

Division 5 is a new initiative in keeping with the current views of the state as a parent. It is designed to support a young person who has left the CEO’s care.

Part 2.2, Division 1 defines a young person leaving the care of the CEO as someone who has ceased to be in the CEO’s care and is aged between 15 and 25 years of age. Most young people moving into adulthood require continuing support as they establish their adult life. Young people can be vulnerable during this period of transition, yet most young people have the support of their families to assist them to make the transition to independent living as adults.

Until now, a young person leaving the care of the CEO at the age of 18 has not been entitled to further assistance that a family might usually provide. This provision enables support to be provided by the CEO up until the young person reaches the age of 25, if required. This may take the form of providing child related services, information and advisory services and financial assistance. It is a clear responsibility of the state to provide this help and I am personally gratified to introduce it.

Part 2.3 of this chapter sets out the powers of the court to protect children by establishing appropriate judicial processes. There will be family matters jurisdiction vested with the local court, where applications for a range of orders will be heard and determined. The best interests of the child are to be the paramount consideration when making determinations. Arrangements for the conduct of the court are set out including continuation of the use of balance of probabilities as the standard of proof and the restrictions on publication of proceedings of the court.

Division 4 under this part describes the making of orders for a child, and the powers of authorised officers under this part. These are the mechanisms for state intervention to require parental action, or restraint from action, or to remove a child from their parent or parents, and as such deserve elaboration to this Assembly. These orders are intended to ensure the child’s safety and wellbeing which, in some instances, can only be assured by such intervention.

Subdivision 1 allows for provision for the application for a temporary protection order if the CEO reasonably believes that a child is in need of protection and the proposed order is urgently needed to safeguard the child’s wellbeing. Subdivision 2 allows provision for the CEO to apply to the court for an assessment order for a child to authorise the carrying out of an assessment if a protection order is not in force for the child and the CEO reasonably believes that the proposed assessment is necessary in order to determine whether the child is in need of protection. Subdivision 3 has provisions for the CEO to apply to the court for a protection order for a child if the CEO reasonably believes that the child is in need of protection and the proposed order is the best means to safeguard the child’s wellbeing.

There are also provisions under this type of order for the CEO to impose supervision directions on a parent to do or to stop doing something directly related to the protection of the child. The directions can also prevent a parent’s contact with a child, or to require contact only when a specified person is present. There are also provisions for directions in regard to giving the daily care and control of the child to a specified person.

Under a protection orders directions may be given giving parental responsibility for the child to a specified person for a period not exceeding two years. This is seen as short-term parental responsibility direction. A long-term parental responsibility direction under a protection order gives the parental responsibility for the child to a specified person for a specified period that exceeds two years and ends before the child attains the age of 18 years. At the same time, it is recognised that in most cases a child removed from parents’ care will wish to maintain contact with their parents or other family members. Provisions in this bill ensure that a parent is able to be informed about the care of their child and that there are opportunities for maintaining contact between the child and their family.

The process of making an application for these orders is set out, requiring that the child’s parents are respondents. [inaudible] practised already, the bill also introduces the use of court ordered mediation conferences in which the facts of the matter may be established, care arrangements reviewed, and recommendations made, or agreements reached on the best means of safeguarding a child’s wellbeing.

There are serious decisions affecting the lives of children and young people. The range of orders available and the consideration that the court must make or there are to ensure that the best interests of the child are served by what ever order is made. In reaching a decision about orders, the court is required to take into account the outcome of any mediation conference, together with the wishes of the child, the child’s parent or persons having parental responsibility or other persons with a direct or significant interest in the wellbeing of the child. The court is also required to consider any report by the CEO and the needs of the child for long-term stability and security. An order ceases to have effect when the child turns 18 years of age.

The balance of this division deals with procedural arrangements and obligations of a person granted short- or long-term parental responsibility including a requirement that the child be provided with opportunity to have contact with their parents and other family members as often as is reasonable and appropriate in the circumstances.

Division 5 makes provision allowing the court to adjourn proceedings. Adjournments may only be granted in specified circumstances, and must take into account the best interests of the child. Reasons for adjourning proceedings must be given by the court and must be compelling.

Division 6 of this part provides for an appeal to the Supreme Court against any decision of the court other than a decision to make a Temporary Protection Order. On appeal, the Supreme Court may confirm the decision, vary it or set it aside and substitute another decision.

Division 7 deals with other procedural matters, some of which are new. For example, the court may order that a legal practitioner separately represent the child if that is considered to be in the child’s best interests. The role, functions and qualifications of such a legal representative are established.

Part 2.4 sets out the provision and conditions that enable Child Protection Orders and child protection proceedings to be transferred between the Territory and another jurisdiction so that children may be protected under the orders when moving from one jurisdiction to another, and to facilitate the timely an expeditious determination of those proceedings.

Amendments were made to incorporate national model legislation to achieve this object in the existing Community Welfare Act in November 2002. These amendments have essentially been retained in this bill.

Madam Speaker, there has been strong community support for new legislation to ensure that emphasis is given to preventing problems before they arise. Chapter three sets out provisions for the prevention of harm and exploitation of children. The object of this part is to ensure that individuals who pose an unacceptable risk of harm or exploitation to children are prevented from having contact with children through their employment.

This section contains two new measures in particular. Part 3.1 introduces a requirement for screening for child-related employment. I referred to this screening earlier. Employment screening is but one component of a range of measures that ensure that children attending services and programs are safe, however it is an important expression of the shared responsibility we have for children’s safety.

Many providers of services for children in the Northern Territory have already undertaken appropriate background screening of their staff. Of particular mention here is the approach adopted by the Australian Sports Commission, which has initiated a national approach to promoting child-safe organisations which includes the screening of staff and volunteers. Other groups in which screening takes place include churches, scouts and guides, child care services and the teacher registration system.

As noted earlier, child-related employment is defined under Part 3.1 of the bill. It defines a range of agencies or settings where screening will become mandatory for both paid employment purposes and for people who wish to voluntarily work with children. The main exceptions to screening are children under 15 years of age, and parents who wish to volunteer to work with a group of children, which includes at least one of their own children in an educational setting, children’s service or club or association. To be exempt, such work must be performed under the supervision under someone who holds a child-related employment clearance, and the work must not require an overnight stay. This will enable parents to attend school excursions or help out at their child’s sports club without the need to be screened, unless they want to participate in events such as school camps which involve overnight stays.

Provisions have been made for the establishment of a screening authority to be known as Safe NT, which will be developed under the auspices of the Northern Territory Police, Fire and Emergency Services. Safe NT will receive and process child-related employment applications, and determine the suitability of the applicant. A suitability notice will be issued, which will be current for two years. This may take the form of a card, similar to the blue card used in Queensland. There are clear benefits in having a central agency undertaking this role. At the moment, on application to the Northern Territory Police, criminal history is provided to the person nominated on the form, usually for employment screening purposes. The requesting person or persons are assessed and make decisions about the suitability of the applicant, without the benefit of consistent guidelines. A screening authority will provide protection to both applicants and employers, and simplify the current arrangements by use of a single suitability notice rather than the multiple clearances now required when working in more than one area of child-related employment. This will also bring the Territory in line with other Australian jurisdictions that currently have such legislation. Work is also under way nationally to adopt a consistent approach to the screening process and to facilitate exchange of information.

Part 3.2 of this chapter legislates to prevent the exploitation of children in their employment. By and large, it retains the restraints in employment of children under the age of 15 years that are incorporated in the current Community Welfare Act. A child in this age group must not be employed after 10 pm at night or 6 am in the morning. A parent must not permit or require the child to perform any work that is harmful to the child’s physical, mental or emotional wellbeing, or that exploits the child sexually or in other forms. There are provisions made for the CEO to give written notice to the parent of a child to prohibit that child’s employment if the child’s wellbeing is, or is likely to be, jeopardised by that employment.

These constraints are necessary measures in a society that is serious about ensuring that children and young people get the best possible start in life. Part 3.3 of this chapter creates a better capacity to prevent harm to children and young people by establishing a child death review on prevention committee. The object of this part is to prevent child deaths in the Territory by conducting research, maintaining a child death database, and developing appropriate policy responses to address child deaths and their causes. The committee will consider both morbidity and mortality issues. The committee is to report annually on their findings to the responsible minister, who will table a copy of the report in the Legislative Assembly.

Madam Speaker, the Territory has a high incidence of injury to children and a high infant mortality rate. This new measure provides a focal point for continuing attention to be paid to reducing these rates and to raising public awareness about the issues. Chapter 4 of the bill relates to the regulation of children’s services. Its objects are to ensure the wellbeing of children who are under the care of the providers of children’s services. This section provides definitions and descriptions of the type of children’s services, including home-based services, services requiring licences, and services which are required to be registered. The bill regulates services provided to children less than 13 years of age at a place other than the child’s usual place of resident. It does not include care provided by family members, babysitting services, tutoring, educational programs or health services programs.

Part 4.2 outlines the key obligations and responsibilities for providers and responsible persons and other persons. It is an offence under this section of the bill for a person to provide children’s services unless they are registered or licensed.

Part 4.3 outlines services provided under licence. This includes the application of a licence, grant of a licence condition and terms of the licence. It also addresses issues pertaining to the need to display the licence and provisions for suspension, revocation or surrender of a licence, and a requirement to report change of circumstances and continuation of services under certain conditions.

Part 4.4 provides a new provision which allows for services to be provided under an action plan agreement with the CEO. This measure is intended to acknowledge the circumstances of childcare services that are under development or operating in remote Aboriginal communities. It is recognised that such services may not have operated in these locations previously, and that time can be required to develop the infrastructure and capacity to comply with the licence standards. The action plan agreement is design to assist childcare services to gradually meet the requirements imposed on a licence holder.

Part 4.5 relates to service provided by a registered operator, including provisions relating to applications of registration, conditions of registration and when registration ceases to be enforced.

Part 4.6 sets out arrangements for monitoring compliance. It provides for an authorised officer to exercise powers to enter and inspect places, access written and electronic data to monitor compliance of service, thereby ensuring the wellbeing of children.

Part 4.7 lists the decisions that can be subject to review. The clause also states the procedures that must be followed in respect of each decision that may be reviewed. It also allows for the establishment of a review panel and the responsibility of this panel.

Part 4.8 refers to the development of regulations to underpin licensing and regulation of children services which must be consistent with this chapter.

Part 5 of this bill establishes the position of Children’s Commissioner for the Northern Territory. As defined in Division 1, the object is to ensure the wellbeing of ‘protected children’ - that is, children who are the subject of the exercise of a power or exercise of a function under Chapter 2 of this act - and the monitoring of the implementation of the government’s decisions arising from the Northern Territory Inquiry into the Protection of Aboriginal Children from Sexual Abuse. This is a statutory, independent role, equipped to keep a public eye for the interest of children who have had contact with a child protection system and to ensure that services, systems and policies serve them well.

The commissioner has a brief to receive complaints about services provided to ‘protected children’, from a protected child, from an adult who was previously a protected child, or from an adult acting on the behalf of a protected child. These protected children are those who are most likely to require our assurance that they have been fairly dealt with and that they have being provided with adequate services.

Division 2 sets out procedural arrangements for making complaints, and the matters of such complaints. The basis for assessing and dealing with complaints, and the commissioner’s powers to obtain information, is also established in this division.

Division 3 requires the commissioner to lodge an annual report with the minister, which is then tabled in this Assembly within six sitting days following its receipt. On request from the commissioner, the Speaker may authorise the commissioner to publish the report in the public interest. The commissioner may also lodge, at the minister’s request or if the commissioner considers it appropriate to do so, other reports with the minister in relation to the commissioner’s functions, which may include the result of the monitoring of the implementation of the government’s decisions arising from the Inquiry into the Protection of Aboriginal Children from Sexual Abuse. These reports will also be tabled in this Assembly.

Divisions 4, 5 and 6 of this part deal with the disclosure of confidential information, immunity, and administrative matters associated with the operations of this office. Of particular note is that the commissioner is appointed for a period of five years and is eligible for reappointment.

Establishment of this role represents a maturing of the system we have in place for the care and protection of children. It is a significant step forward for the Northern Territory, one that brings us into line with national directions. Establishing the independent commissioner’s position demonstrates that this government is not afraid to look into the mirror and address any problems with our child protection system. Nor is it afraid to have scrutiny of the responses that are being made to address the recommendations arising from the Little Children are Sacred report. Overall, it will make us better placed to tackle some of the underlying problems that contribute to poor outcomes and quality of life for some of the most vulnerable children growing up in the Territory.

Part 5.2 establishes review teams. The objects of this part are to ensure that services provided to children and other people as a result of the exercise of a power or performance of a function under chapter 2 are of high standard. Review team members are appointed by the CEO with a brief to review services provided to a person who has been, or is, a protected child or family member of that child, or other services connected with a function under the act. The team may make recommendations to the CEO and ensure that recommendations are implemented. Reports are required and they are also provided to the Children’s Commissioner. This is a further measure intended to promote the best possible quality of service and system.

Part 5.3 describes the general offences provided for under this bill. They include obstruction of someone exercising a power under the act, impersonation of an officer, provision of false or misleading information, and disclosure of a child’s identity.

Part 5.4 deals with other administrative matters including authorisation of officers under the act and providing the Administrator with regulation making powers.

Part 5.5 and 5.6 provide for the repeal of the previous acts and identifies a range of transitional matters and consequential amendments that are required once the act is finalised.

Madam Speaker, child protection work is a difficult job. The CEO and child protection staff are often criticised, yet the work undertaken is essential for the protection of the most vulnerable group in our community. My experience is that people working in these fields are highly committed and caring professionals who are carrying out their roles to the best of their ability. I recognise that no system is perfect and that we must always strive for improvements to ensure the needs of children and families can be met as effectively as possible. However, it must be recognised that over the last four years in particular considerable effort has gone into reforming the way the Territory’s child protection system works and to place on a path of continuous improvement.

The release of the Little Children are Sacred report from the inquiry into the protection of Aboriginal children against sexual abuse has provided many recommendations for change. It has also highlighted that while governments must take a lead role, the responsibility for caring for children rests not only with government but also with the entire community.

Madam Speaker, in conclusion, this bill represents a major reform that delivers on government’s commitment to updating existing legislation to provide a contemporary framework for action to protect and care for our children. The bill not only brings the Territory into line with other Australian jurisdictions; in a number of ways it goes further. It provides the basis for concerted community, government and non-government effort to ensure that every Territory child and young person is safe and well cared for. I commend the bill to the house.

Debate adjourned.

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