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Children’s Protection Law Reform (Transitional Arrangements and Related Amendments) Bill

Adjourned debate on second reading.

(Continued from 15 November 2017.)

The Hon. A.L. McLACHLAN (20:26): I rise to speak to the Children’s Protection Law Reform (Transitional Arrangements and Related Amendments) Bill 2017. This bill was tabled by the Attorney-General in the other place on 14 November and was debated and passed on the same day at the government’s request. The bill is now before us in this chamber. The bill seeks to amend a number of acts relating to the care and protection of children in our state. It makes a number of transitional and consequential amendments as a result of the Child Safety (Prohibited Persons) Act 2016, the Children and Young People (Oversight and Advocacy Bodies) Act 2016 and the recently passed Children and Young People (Safety) Act 2017.

Neither of the child safety or prohibited person acts contained transitional arrangements or the consequential amendments related to other extant acts in order for both acts to commence operation. This bill therefore needs to pass in order for the acts to commence operation. For example, such amendments include transitional provisions that will enable DCSI screening checks to still be recognised for the purposes of the Child Safety (Prohibited Persons) Act to ensure persons already cleared by the unit are not required to reapply for the same check. This will cover three years from when the check was obtained.

The bill also requires persons wanting to be registered as a teacher through the Teachers Registration Board to have undertaken a working with children check and be found, through that process, not to be a prohibited person. The bill will ensure that a person will only be required to apply for the check at the time a person applies for their initial registration or renews their registration after three years. This will, in turn, enable the introduction of this new regime to be staggered and hopefully manageable. Other prescribed persons will be able to rely on their current criminal history check for a period of three years or when their accreditation expires. After that period of time, they will then be required to apply for a working with children check.

The Liberal Party is supporting the bulk of these amendments. However, there are a number of other amendments contained in the bill that are not strictly transitional or consequential, but which seek to refine technical issues that the government claims will improve the overall functioning of the various pieces of legislation involved in the care and protection of children.

It is the Liberal Party’s view that adequate consultation with relevant stakeholders on these additional areas of reform has not occurred. Given the amendments are not urgent, in our view, in order for the relevant acts to commence operation, we have come to the conclusion that they should be dealt with separately, at a later time, subject to the usual scrutiny and consultative process. For the benefit of honourable members, I will mention the particular areas of the bill to which I am referring.

Firstly, part 5, clauses 39, 40 and 41: these involve amendments to the Births, Deaths and Marriages Registration Act to establish a separate scheme for the changing of a child’s name when that child is under the guardianship of the chief executive. These amendments will empower the chief executive to change a child’s name upon application of the child’s guardian or on the chief executive’s own motion. I understand that this request is not uncommon in situations where a child is under long-term guardianship and desires to share the same surname as the guardians, thus feeling more a part of the family unit.

The second tranche of amendments that we are opposing is part 10, clauses 49 to 51, referring to amendments to the Children and Young People (Safety) Act to relieve the obligation to prepare case plans for all children who are in care. Instead, it limits it, via regulation, to those who may only be at risk. The obligation should be made clear in the act and should not be put into regulations. This is the view of the Liberal Party.

Also, the Liberal Party is not inclined to support part 10, clause 55. This clause prescribes that it is an offence to employ someone in residential facilities unless they have undergone psychometric or psychological assessment. The chief executive has the power to determine an appropriate assessment. In our view, this should be considered and consulted upon, especially who should determine the assessment and related costs to both government and non-government agencies.

We are also inclined not to support part 10, clause 58. This is a very significant amendment that provides that no liability in tort attaches to the Crown, the minister, the chief executive or any other employees of the department for the negligent acts of an employee who is responsible for the operation, enforcement or administration of the safety act. This was not contained within the Nyland royal commission recommendations and therefore, in our view, requires further considered examination and consultation.

This is not to say that the Liberal Party is necessarily opposed to some amendments. After mature reflection, given the urgency of the bill and that there is a large stakeholder group and that our framework for looking after children has been considered by many as a failure in this state, we feel that measured action should be taken and those particular provisions should not be rushed through the two chambers of parliament. Otherwise, the Liberal Party supports the second reading and supports the bill.

The Hon. K.J. MAHER (Minister for Employment, Minister for Aboriginal Affairs and Reconciliation, Minister for Manufacturing and Innovation, Minister for Automotive Transformation, Minister for Science and Information Economy) (20:33): I thank the honourable member for his contribution. This is an important companion piece to the legislation we have previously passed. I look forward to this progressing smoothly through the committee stage, with the comments the honourable member has made.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. A.L. McLACHLAN: For the benefit of the minister and honourable members, I do not have any comments until we get to the clauses which the Liberal Party has difficulty with. The first one is part 5, clauses 39, 40 and 41. As I have indicated in relation to most of those clauses, the Liberal Party does not potentially have any philosophical objections but wishes for the opportunity to consult and have mature reflection.

I do have some comments and questions for the minister in relation to part 10, clause 58. I indicate that part 5, clauses 39, 40 and 41 the Liberal Party will be voting against; part 10, clauses 49, 50 and 51 the Liberal Party will be voting against; part 10, clause 55 the Liberal Party will be voting against; and part 10, clause 58 we will be voting against, but I would like to explore the context and the implications of clause 58.

Clause passed.

Clauses 2 to 38 passed.

Clause 39.

The Hon. A.L. McLACHLAN: The approach I was planning to take is that I would like to understand the member’s position on clause 39 and then I would take clause 39 as a test for clauses 40 and 41, even though they are not necessarily technically consequential.

The ACTING CHAIR (Hon. D.G.E. Hood): Does the Hon. Mr McLachlan want to outline his party’s position?

The Hon. A.L. McLACHLAN: I have already indicated our position, the fact that we are opposing the clause. We think there should be greater consultation and mature reflection, so we will be opposing this clause. For the benefit of members, given where we are at this time of night, if clause 39 passes I would accept the fact that honourable members, unless they indicate otherwise, would be supporting the government in clauses 40 and 41.

The Hon. K.J. MAHER: I can indicate that it might be useful for those on the crossbench weighing up which way they wish to vote on this to know that this is, I am advised, a request from the Department for Child Protection to add clarity and to remedy a request that I am advised comes in only about twice a year for the chief executive to change a child’s name. It is not something that happens often but, when the other bill passed, it was a request from the department to allow this to happen for clarity and to make this circumstance, which does not happen all that often, easier to do.

The Hon. T.A. FRANKS: The Greens indicate that we will be supporting the government’s original intention with the changing of children’s names. I hope that provides clarity to the committee.

The Hon. J.A. DARLEY: I will be supporting the government’s intention in this bill.

The ACTING CHAIR (Hon. D.G.E. Hood): For the record, I understand the Australian Conservatives are also supporting the original printing of the bill. The Hon. Ms Vincent, do you have a contribution to make?

The Hon. K.L. VINCENT: Since there is already a majority, I will vote with the government.

Clause passed.

Clauses 40 to 48 passed.

Clause 49.

The Hon. A.L. McLACHLAN: Consistent with my recently delivered second reading speech, we will be opposing clauses 49, 50 and 51. Again, we think that aspects of these provisions need to be further socialised in the group of stakeholders that have a keen interest in this area and work in this area. We also feel that some of these concepts regarding the preparation of plans need to be further articulated in the body of the act rather than in regulation.

The Hon. K.J. MAHER: Unsurprisingly, I rise to encourage the chamber to support the retention of these provisions in the bill. My advice is that these are in there at the request of the department so that the provisions relating to case plans are in the act rather than in an instrument like regulation. This was at the request of the department so that the issues to do with case plans are put in the act rather than left for another instrument like regulations, which is why we support this.

The Hon. T.A. FRANKS: I would appreciate it if the Hon. Andrew McLachlan could unpack the impact of removing this clause and explain why and, in terms of the consultation that the opposition has had with stakeholders, which stakeholders would support this measure?

The Hon. A.L. McLACHLAN: I thank the honourable member for the question. There are no particular stakeholders that have advocated for this. This is a view formed by the shadow attorney, having reviewed the legislation. My understanding and my instructions are that it is our view that the effect of the amendments is that they relieve the obligation to prepare case plans for all children who are in care and instead limits it to those who may be at risk.

The Liberal Party is not saying that it is necessarily opposed to the amendments, but it would seek to have greater consultation during the process. Honourable members have to make a decision as to whether they support the government and have these provisions going forward. We do not feel they need to be passed through at this time, but I am not going to stand in the chamber either and violently argue against them.

Clause passed.

Clauses 50 to 57 passed.

Clause 58.

The Hon. A.L. McLACHLAN: I seek some clarity around this clause and where it came from and what it is seeking to do. For example, if a child is under the care and supervision of an employee of the department and that child committed damage to property, if this clause comes into effect, does this mean that the state in effect will not be liable? Does this clause exist in other jurisdictions?

The Hon. K.J. MAHER: Whether it exists in other jurisdictions, we have not done a comprehensive comparative analysis of the bills in other jurisdictions, but I think I can provide quite sufficient clarity about the reason for this clause. During the passage of the Children and Young People (Safety) Act 2017, there was an opposition amendment that deleted the following from the safety act. The deletion was that no civil liability attaches to the Crown, the minister, the chief executive, a child protection officer or any other person for an act or omission in good faith in the performance or exercise or purported performance or exercise of functions or powers under this act.

Section 236 of the Family and Community Services Act 1972 (FACS Act) currently states that no liability in tort attaches to the minister or an employee of the department in respect of an act or omission on the part of a child under the guardianship of the minister or the chief executive or of whom the minister has custody under the act, unless the act or omission occurs while the child or person is acting as the servant or agent of the minister or that employee and within the scope of his or her employment or authority as such.

This bill now simply copies the existing section 236 of the FACS Act and updates it to include the chief executive, given that the safety act now confers this function on the chief executive and the Crown. The Crown has been included, as in the absence of that blanket immunity clause there is the possible argument that the Crown would nevertheless be vicariously liable for neglect in the acts of an employee.

Clause 58 in this bill effectively preserves the status quo in the FACS Act by providing that immunity in respect of the tort acts of children under the guardianship or in the custody of the chief executive, except in cases where the child under the guardianship is acting as the agent or servant of the chief executive—that is, as an employee—in which case the usual rules will apply in relation to vicarious liability. Clause 58 is not a blanket immunity, as was originally quoted in the safety act, but is limited to tortious acts of children under the guardianship or custody of the chief executive.

The Hon. A.L. McLACHLAN: If it is limited to tortious acts—and I am just trying to explore the scope of it—what about a non-tortious act? For example, as to a criminal act which causes damage, will the Crown take responsibility financially for the damage resulting from a criminal act of a child who was in its care and let’s say negligently, recklessly and indifferently allowed the child to be unsupervised?

The Hon. K.J. MAHER: My advice is yes, they would take responsibility in those circumstances.

The Hon. A.L. McLACHLAN: In this case, when we are defining plain tort, if someone in the care found themselves in circumstances where they were not supervised and committed an act of negligence, then the state or the Crown could not be forced to be given compensation. Is that correct? I will rephrase it. We have gone through criminal liability, so we are going into tortious acts. If a child was under the care and supervision, and the supervision somehow failed, therefore whilst under the care of the state the child committed a tortious act—for example, committed an act of negligence, and I am just grappling with how to define one—then this provision would be triggered and the state would not be liable.

The Hon. K.J. MAHER: My advice is that that is correct, as the honourable member has outlined.

The Hon. A.L. McLACHLAN: I do not have any further questions, and I thank the minister for his advice, at this time of night, in trying to distinguish between criminal and tortious liability. It is not easy, even in the morning. The Liberal Party’s instructions to me are to continue to oppose this clause, so if I could have an indication from honourable members about whether we have the numbers for opposition I would be very grateful.

The Hon. T.A. FRANKS: The Greens will not be supporting the opposition’s intent.

The ACTING CHAIR (Hon. D.G.E. Hood): That is a double negative, so I think that is a positive.

The Hon. J.A. DARLEY: I indicate that I will be supporting the intention of the current bill.

The ACTING CHAIR (Hon. D.G.E. Hood): Are there are any other contributions? I understand the Australian Conservatives will also be supporting the bill as printed.

The Hon. A.L. McLACHLAN: I do not have any more contributions. The Liberal Party will be supporting the third reading.

Clause passed.

Remaining clauses (59 to 153) and title passed.

Bill reported without amendment.

Third Reading

The Hon. K.J. MAHER (Minister for Employment, Minister for Aboriginal Affairs and Reconciliation, Minister for Manufacturing and Innovation, Minister for Automotive Transformation, Minister for Science and Information Economy) (20:52): I move:

That this bill be now read a third time.

Bill read a third time and passed.

See full session on Hansard