Tuesday, February 28, 2017 2:41pm
Tony Rossi reports to members of the Law Society of SA in the February 2017 edition of The Bulletin on "the year ahead", and how the profession must strive to protect Rule of Law and basic rights.
The Government’s draft Children and Young People (Safety) Bill 2016 was disappointing in its failure to adopt many of the recommendations set out in the Child Protection Systems Royal Commission Report of the Hon. Margaret Nyland.
The approach of Government to the submissions received, from various stakeholders, has been a concern.
The Royal Commission report both followed and set out numerous failings of the Department of Child Protection in identifying and responding to children at risk .
The Commissioner identified systemic failure on a grand scale. Not surprisingly, the Commissioner recommended a new approach.
Fundamental is the recognition that legislation concerned with the welfare of children must have, as a primary consideration, the best interest of the child. Indeed, this is a requirement under Article 3.1 of the United Nations Convention on the Rights of the Child.
The Bill fails to identify that primary consideration. In clause 7 of the Bill it identifies the safety of the child as being the primary consideration. That difference informs the structural problem with the Bill.
In a radio interview on 24 February, Attorney General John Rau argued that clause 7 is the same as the interest of the child being a primary consideration. Anyone who has had any experience with these concepts would readily appreciate how wrong that is. The best interest of the child is closely aligned with the rights of the child. Instead, the Bill is closely aligned with the welfare state mentality. The Bill increases the rights and powers of the Department, without accountability or even civil liability, and at the detriment of the family unit.
Clause 156(1) of the Bill will remove all civil liability from the Crown, the Minister, the Chief Executive, a child protection officer or indeed any other person in relation to any act or omission relating to the functions or powers under the Act, no matter how grossly negligent, as long as the person did not act in bad faith.
Recommendation 63 of the Nyland Report provides that if the Chief Executive suspects on reasonable grounds that a child is at risk then the Chief Executive must act so as to cause an assessment of or investigation into the circumstances of the child be carried out or the Chief Executive must act in some other appropriate way.
The Government has rejected the Commissioner’s recommendation. The Bill allows the Chief Executive a discretion as to whether to act even where the Department has identified a child at risk. When would you contemplate it being reasonable to do nothing when a child is at risk? We have seen what happens when notifications about at-risk children slip through the cracks.
The Bill also proposes that if a decision is made to remove a child from a family unit and a parent wishes to oppose a formal order for the removal it will be the parent who will bear the onus of satisfying the court that the child should not be removed. This was not recommended by the Commissioner.
There can be no justification for the suggested change in onus. Not only should the Department, as a matter of principle if it wishes to remove a child from a family unit, bear the onus, the Department should be expected be able to gather and present the evidence. The families involved tend to be in the lower socioeconomic section of the community, are typically poorly educated and up to half are Aboriginal.
Studies and expert opinion emphasise the desirability of maintaining connection with the biological family where a child is removed. This does not appear as a desired objective in the Bill.
Where there is representation of a child the Bill proposes that the legal practitioner be required to act in accordance with the instructions of the child. It is important that the primary duty to the court be recognised and that the practitioner be entitled to also make a submission considered to be in the best interest of the child even if it is inconsistent with the express instructions of the child. The Bill provides for the ability to seek review of certain decisions in the South Australian Civil and Administrative Tribunal. However, an unreasonable time limit of two weeks is provided for the filing of the application. This is totally inadequate in order to make an appointment not see a solicitor, obtain advice and make an informed decision. Some documents may need to be sourced. The grounds for an extension of time are also harsh.
The Bill does not incorporate a provision that would allow the youth court that powers to prevent female genital mutilation. Minister Rau gas suggested that the matter is addressed in other laws. Presumably he is referring to the criminal law. By the time the criminal law becomes involved it is too late.
There are many other concerns and the Society’s detailed submission can be found on our website.
On 23 February the Society arranged, at its premises, a press conference which included the AMA and SACOSS. News crews from ABC, 7, 10 and SBS attended and reported the matter that night. ABC Radio has reported upon the concerns. FiveAA presenter Leon Byner has made clear his concerns on his radio program.
The Government has remained impervious. The Bill was introduced into the Lower House without forewarning and with the expectation that other members of the Parliament be in a position to nevertheless debate the Bill. The welfare and associated legal rights of children and of the family unit are matters of considerable importance to the Society. It will be providing every member of the Upper House with its formal submission, a summary of that submission and a further explanation for the Society’s concern. The Society must continue to speak loudly in support of the interest of the most vulnerable in our community.
Tony Rossi, President - Law Society of South Australia