CHILDREN AND YOUNG PERSONS (CARE AND PROTECTION) AMENDMENT BILL; 2018 NATIONAL DISABILITY INSURANCE SCHEME (WORKER CHECKS) BILL 2018

2nd Reading Speech

14 November 2018


The Hon. ADAM SEARLE (12:09): I lead for the Opposition on the Children and Young Persons (Care and Protection) Amendment Bill 2018 and the National Disability Insurance Scheme (Worker Checks) Bill 2018. As we have already canvassed in this House, the bills have been introduced as cognate bills, notwithstanding the fact that they are unrelated. Therefore, I make a request that the second reading votes be separated and voted on sequentially. That is because the Opposition opposes the first bill. We will have amendments should we not succeed in opposing the bill at the second reading stage. However, we do not oppose the National Disability Insurance Scheme (Worker Checks) Bill, which is a Labor project, albeit one that is not being handled very well by the current governments, State and Federal. We do not oppose the measures in that bill. We express those clear views on the way in which we vote.

The Children and Young Persons (Care and Protection) Amendment Bill 2018 seeks to amend the Children and Young Persons (Care and Protection) Act and the Adoption Act 2000. It is a matter of record that a discussion paper entitled “Shaping a Better Child Protection System” was issued in December 2017 outlining proposed legislative amendments to a select group of stakeholders and requesting submissions. Those submissions have never been made publicly available. The community legal sector and other important stakeholders in this space formed what we consider to be a reasonable expectation that a draft exposure bill and a further, more detailed consultation would be released prior to the introduction of the legislation. The Government could also have produced an exposure draft and let it sit upon the table. Instead, the report on the consultative process was released on the same day as the bill was introduced in this place. Affected stakeholders, including Aboriginal and Torres Strait Islander communities and organisations, have simply not had sufficient time to consider or respond to the full implications arising from the proposed reforms. Consequently, I move:

That the question on the second reading of the Children and Young Person’s (Care and Protection) Amendment Bill be amended by omitting “be now read a second time”, and inserting instead, “be referred to the Standing Committee on Social Issues for inquiry and report”.

Frankly, this bill is being rushed. Its content is hastily put together and ill-conceived. Without wishing to be alarmist, the measures in the legislation, if made law, run the risk of creating an instrument by which we would create the potential for another stolen generation of children to be removed from their families. We should step back from that. That is a reason to look very closely at the provisions and to make sure that in the Government’s desire to improve the system and to provide additional protections for vulnerable children, we do not, in fact, do more harm.

What does this legislation do? The amendment bill changes guardianship orders to allow the Children’s Court to make an order by consent to reallocate parental responsibility without the requirement of a care application or the finding that the child or young person is in need of care and protection. The Children’s Court may also make a guardianship order by consent without the necessary finding that there is no realistic possibility of restoration of the child or young person to his or her parents. The amendments to the Adoption Act will also enable the Supreme Court to make an order without parental consent, permitting the adoption of a child by the child’s current carers or guardians.

The bill also limits the period for which the Children’s Court may allocate all aspects of parental responsibility to the Minister, and the period in which the feasibility of restoration of a child or young person to his or her parents may be considered, to a period of just 24 months. The bill makes amendments that require the Children’s Court to take into consideration the amount of time that the child or young person has been with the present caregivers and the stability of present care arrangements when considering granting leave to vary or rescind the existing care order. The amendments also require the department to offer alternative dispute resolution processes to the families of children and young persons at risk of significant harm before seeking care orders.

The bill amends the current legislation to enable the secretary of the department to ask a government department or agency or a government-funded non-government organisation to provide prioritised services to a child assessed at risk of significant harm and their family, as well as extending the time frame that the court is able to make orders allowing a child subject to a guardianship arrangement to have contact with their parents or family to the duration of the guardianship order. The bill also allocates responsibility for a child whose guardian or carer has died to the secretary for 21 days or until the court makes an order allocating parental responsibility for the child. While the secretary has responsibility for the child, he or she must investigate and assess the most appropriate care arrangements for that child.

The National Disability Insurance Scheme (Worker Checks) Bill gives effect to New South Wales’ obligations under the Intergovernmental Agreement on Nationally Consistent Worker Screening for the National Disability Insurance Scheme [NDIS]. Under this bill, all NDIS workers will be required to apply for a check consistent with the working with children and vulnerable persons check. It is designed to protect persons with disabilities from abuse, violence, neglect and exploitation. As I indicated at the outset, the Labor Opposition does not oppose that second bill or its contents.

To return to the first bill relating to the care and protection system, the Opposition is widely concerned about the 24‑month time frame about which I spoke earlier. The introduction of an arbitrary time limit for families to work towards restoration is a great concern. The proposal restricts the court to considering whether the children can be restored to their families within two years or less. That effectively limits the court’s discretion to grant flexible care and protection orders on a case-by-case basis and to make orders crafted to meet the needs of individuals and their families.

That is really important. Families, particularly broken families, and vulnerable children are not machines. You are not repairing a house, car or piece of equipment. You cannot just patch it back together. It takes time. It takes investment. It takes care. Everybody moves and develops at a different pace. Members such as the Hon. Peter Primrose and the Hon. Mick Veitch know about caring for vulnerable kids and working in that sector. It is important to have a system that is responsive to individual needs. Members of the Liberal Party—trading under a false name—nevertheless always talk about the freedom of the individual and the fact that government needs to be responsive to individual needs and yet there is this sledgehammer-to-crack-a-nut proposal. The Opposition thinks that there should remain an open ended mechanism rather than one that is so limited.

The proposal fails to impose corresponding obligations on the department to provide intensive, holistic support to families to achieve restoration within the proposed time frame. Many families face systemic barriers to achieving restoration within two years, including a chronic and well-documented lack of public housing and public housing that is not fit for purpose. I note, in parenthesis, that the several hundred million-dollar maintenance backlog, which this Government said it inherited from the previous Government, has not been filled in eight years, despite $50 billion worth of privatisation. Obviously, looking after vulnerable families and individuals is not a priority for this Government.

The Hon. Peter Primrose: Building stadiums.

The Hon. ADAM SEARLE: Yes, the funding is all going into building stadiums. There is also a lack of accessible support and rehabilitation services. Rather than setting families up to fail by imposing arbitrary time limits, the Government should introduce a scheme of comprehensive legislative supports that prevent removals in the first place or provide support towards restoration that is tailored to individual families’ needs.

In relation to guardianship and adoption orders, the proposal would allow the court to make a guardianship order under section 38 with a parent’s consent, even where the department has made no finding that a child is at risk of significant harm or should be subject to a care and protection order. The requirement that parents considering consenting to guardianship orders have access to free legal advice does not go far enough to ensure appropriate accountability once such orders are made. Proposed changes to the Adoption Act that broaden the Supreme Court’s power to dispense with a parental consent where an adoption order is sought by a child’s current guardian should also be opposed. The two proposals create a fast-tracked pathway to adoption without an adequate regulatory framework to provide oversight and protect the best interests of vulnerable children.

As I said, there are additional barriers to seeking variation of care and protection orders. The changes to section 90 of the Act make it harder for parents to apply to vary or dismiss care and protection orders. According to the department’s report on the outcomes of its consultations on proposed reforms, there is little community support for changes to section 90. The explanatory materials to the bill give no clear rationale for the proposal requiring the court to consider the stability of a child’s current placement when granting leave to a parent to make an application to vary or dispense current care and protection orders.

In its current form, section 90 already sets a high bar for parents seeking to change care and protection orders. The section also enables the court to dismiss unmeritorious applications where the applicant cannot demonstrate an arguable case. Rather than further limiting parents’ access to the courts, the Government should ensure they have access to free, independent legal advice when seeking the court’s leave to make an application under section 90.

There is inadequate provision for independent legal advice and representation in this bill. To be effective, requiring Family and Community Services to engage families in alternative dispute resolution before seeking care and protection orders from the court requires accessible, independent legal advice to address power imbalances between families—particularly vulnerable and dysfunctional families—and a government department. This is necessary in order to support parents to fully participate in the process, and to ensure that placing a child in out‑of‑home care is always considered as an intervention of last resort.

It is no good having a technical right, or a technical avenue, for parents to pursue if they lack the means to properly engage and they lack support. This legislation deals with broken and vulnerable individuals and families. If the processes are to be meaningful and to give substantive rights—not bare technical legal rights—we need to make sure that all persons can properly engage. This is not a criticism of the Department of Family and Community Services or its officers, whom we know work tirelessly in the public interest and in the interests of vulnerable communities, families and individuals, but there is no use creating a new process if people cannot use it.

Families with specialist needs—including people with cognitive disabilities and Aboriginal and Torres Strait Islander people—should also be guaranteed access to specialist non-legal support. Community legal centres are perfectly placed to support families participating in alternative dispute resolution with the department and, along with the Aboriginal Legal Service (NSW/ACT) and Legal Aid NSW, should be adequately funded to provide these services.

These matters are very important if we are going to raise the bar with respect to these issues, which I assume is the Government’s intention. As I indicated, there is a significant group of stakeholders in this space, who are shocked and alarmed at what the Government is doing. Today a group involving AbSec, Community Legal Centres NSW and the Jumbunna Institute located at the University of Technology, Sydney have, along with many other groups, authored a joint letter to the Premier. The letter states:

Dear Premier,

We are writing to urge the NSW Government to act in the interests of children and communities in NSW, by turning away from the path of forced adoptions and avoiding the mistakes of the past.

Forced adoptions played a central role in the trauma that led to the National Apologies to Survivors of Institutionalised Child Sexual Abuse, the Forgotten Australians, and the Stolen Generations. There was also a specific national apology to victims of forced adoptions in 2013 and a NSW Government apology in 2012. It is our collective responsibility to learn from these mistakes and ensure that children are safe and families have the supports they need to be part of creating strong, safe and healthy communities.

The NSW government is on track to repeat these mistakes, with potentially devastating consequences for children and their communities. The Care and Protection Amendment Bill (2018) is currently being rushed through NSW parliament without genuine input and engagement with Aboriginal communities and other organisations that work with the children and families who will be impacted by these reforms.

Decades of research, and multiple Royal Commissions and inquiries have provided strong recommendations about meeting the needs of children and young people. Reducing the number of children in out of home care requires community development and the provision of early support services that families need when they are going through hard times. The NSW government is ignoring this advice and returning to the failed policy of forced adoptions.

The NSW government is on a dangerous path to ruining lives and tearing families apart. The legacy of these reforms will be another government apology for traumatising another generation of children.

We urge the NSW government to put these reforms on hold and engage in genuine dialogue with all stakeholders, including Aboriginal communities and community organisations supporting children in families in this area.

The letter ends, “We look forward to your response.” There are 61 organisations that have put their names to this letter. They include Community Legal Centres NSW, AbSec, Jumbunna, Domestic Violence NSW, Grandmothers Against Removals NSW, the Elizabeth Evatt Community Legal Centre in my region of the Blue Mountains, Just Reinvest NSW and Western Sydney Community Legal Centres. There are 61 separate organisations, the names of which I could read onto the record one by one, but will not. A range of individuals are also active in this space or have first-hand knowledge of the defects in system. They know the further damage that the provisions in this bill would do.

There are 700 names of people who have supported this letter, along with the 61 specialist organisations, asking the New South Wales Government to pause and reflect on what this really means. The Law Society of New South Wales, the peak organisation of solicitors in this State, has also written to the relevant Minister, the Hon. Pru Goward, MP, making a number of recommendations. Its first recommendation is that the bill should be referred to an inquiry, which is why I have moved the amendment to the second reading motion before the House. It also opposes the maximum two‑year time limit for restoration and indicates that clauses 20, 25 and 27 to schedule 1 to the bill should be removed or amended to exclude indigenous children.

The Law Society also opposes guardianship orders by consent and dispensing with parental consent where adoption is sought by the child’s current guardian. It indicates that clauses 13 and 14 of schedule 1 and all clauses in schedule 2 should be removed or amended to exclude Indigenous children and to state that each party, other than the secretary of the department, be provided with independent legal advice. In the case of Indigenous parties, culturally competent advice should be given.

I ask members to pause and remember that not long ago, when this House—with goodwill everywhere—debated the Aboriginal language legislation, we reflected on the need for cultural sensitivity and awareness. The goodwill that was apparent in this Chamber on that occasion is entirely missing from debate on this bill or at least from Government awareness. We well understand—and Mr Assistant President well understands from his long years in public life and in this place, his strong association and knowledge of Indigenous matters—that Aboriginal and Torres Strait Islander families and communities have experienced particular disadvantages since European settlement and the dispossession they experienced. I urge all members in this Chamber to listen to the pleas of the 700 individuals, the 61 organisations and the Aboriginal and Torres Strait Islander communities to not inflict this legislation on them without a full inquiry as to its consequences.

The Law Society also opposes the additional limitations on applications to vary or dispense with care or protection orders. Its considers that section 90 of the Children and Young Persons (Care and Protection) Act should remain unchanged and that the factors set out in subclauses 29 (2A) and 29 (2B) should be given equal weight. The Law Society notes that the reference to the stability of present care arrangements in subclauses 29 (2B) and 32 (c) should be removed. It supports the requirement for alternative dispute resolution processes, but indicates they must be supported by independent legal assistance. The Law Society advises that clause 12 of schedule 1 be amended to require the provision of independent legal assistance to the family of a child or young person at risk of significant harm and, for Indigenous parties, that culturally competent legal advice be provided.

The Law Society is deeply concerned about the lack of opportunity for public scrutiny of this legislation and that is why its first recommendation is that the bill be referred to a parliamentary committee for inquiry. Review by a committee will allow for adequate public engagement and scrutiny of what are, on any view, significant reforms to the care and protection system. The Law Society has noted a range of other concerns in its letter to the relevant Minister. I have summarised those concerns—the substance remains the same—the Government should not rush this legislation.

Earlier in this process, a joint statement was issued by a number of organisations: Save the Children, Community Legal Centres NSW, the Aboriginal Legal Service and others. I will provide the House with the flavour of the statement. The documents can be tabled if necessary and I seek the indulgence of the House to be able to do so. A quote from the joint statement is as follows:

The recent announcement by the NSW Government that significant legislative reforms to the statutory care and protection system will be introduced to Parliament has stunned stakeholders including Aboriginal community bodies and community legal advocates, citing the lack of transparency and public dialogue on this important area of public policy.

The group, including AbSec—the NSW Child, Family and Community Peak Aboriginal Corporation, the Aboriginal Legal Service (NSW/ACT), Community Legal Centres NSW, Public Interest Advocacy Centre, Kinchela Boys Home Aboriginal Corporation, Burrun Dalai Aboriginal Corporation [Inc,] the Benevolent Society, Professor Terri Libesman (UTS Law), KARI, Save the Children Australia and Armajun Aboriginal Health Service have repeatedly called for greater transparency and consultation with respect to reforms that go to the heart and soul of our society; our treatment of the most vulnerable members of our community.

Following a brief consultation process in response to a Family and Community Services discussion paper,Shaping a Better Child Protection System, in October 2017, there has been a disturbing silence about the scope and substance of the proposed changes, with the public and sector stakeholders apparently having to wait for the draft bill to be tabled in parliament to see what the government has decided to do.

The statement further notes:

This lack of openness is deeply troubling for Aboriginal communities in particular, given the significant and disproportionate impact that the statutory child protection system continues to have on the lives and wellbeing of Aboriginal children and young people, their families and communities.

That statement continues:

We call on the NSW Government to reconsider the progress of these amendments and urge all members of the Legislative Council to send this bill to committee, allowing a meaningful public engagement and consultation process, so that the public, including children and young people, and Aboriginal communities can genuinely inform the proposed changes, understand their implications, and take part in an open and transparent dialogue about the scope and detail of legislative reforms needed to achieve a modern, rights‑based statutory child protection system.

On 25 October a statement was issued directly by AbSec which says, and I will quote briefly:

AbSec, the New South Wales Aboriginal child and family peak organisation, is once again calling on the NSW Government to listen to Aboriginal people and communities, instead of making blanket changes to child protection legislation that will adversely impact Aboriginal children, young people and families in NSW.

I also table that document. In short, these changes have been dropped on the sector dealing with vulnerable communities, families and individuals without adequate consultation. The people who will be directly affected have not been given or afforded an opportunity to meaningfully engage with government about the terms of the legislation, its impact on their lives and how possible adverse consequences—no doubt unintentionally put into the bill—could be avoided. They have raised the real risks of it inflicting further harm on vulnerable communities, particularly Aboriginal and Torres Strait Islander communities, and there is an alarm, a clarion call, to pause and to reflect upon the terms of the legislation through an inquiry process.

The Government has not made a case in this legislation for either its reforms or the need for urgency. In our view there is no good reason that the legislation needs to pass this week, or indeed next week. There is no good reason that its passage should not await a proper inquiry so that the House, stakeholders and people who are to be subject to the new regime can have the opportunity to fully engage with government about these very significant changes. To address a number of concerns that I have outlined, I foreshadow that the Opposition has some 29 amendments to discuss in Committee. I understand that The Greens have approximately 24 amendments.

The Hon. Scott Farlow: More than 24.

The Hon. ADAM SEARLE: I note the interjection by the Parliamentary Secretary that The Greens have more than 24 amendments. What that reveals or discloses is very significant disquiet in this House reflecting the even greater disquiet in the wider community, particularly on the part of those who will be directly concerned. To give members a flavour of the Opposition’s amendments, which I will address in greater detail in Committee, obviously the two-year time limit is a real problem and the Labor Opposition will visit that. Any time limit on restoration should be balanced with clear obligations on government and the secretary of the department to provide proper support to families and children facing permanent removal.

It is all well and good for government to lay down the law to people who are broken and struggling and, more particularly, to make permanent and far-reaching decisions for vulnerable children without providing resources or putting a reciprocal obligation on government to do its part more fully. If the Government wants to raise the bar that vulnerable individuals and families have to clear, the Government should lift its own game. I make it clear that my comments are not directed to the agency or its hardworking employees: I am talking about the Government’s policy. The Labor Opposition is very concerned about the proposal to make a guardianship order, even when there is no finding that a child is at risk of significant harm or should be subject to a care and protection order. The Labor Opposition will address that issue as well in Committee.

The Opposition also will propose a variety of other changes in relation to the expanded regime being proposed by the Government. We oppose any change to section 90 of the care Act, at least as it is currently configured. It is very difficult to bring an application to vary or rescind care orders under section 90, and the Children’s Court is already empowered by section 90 (2A) (e) to dismiss unmeritorious applications at the earliest stage. As I said earlier, section 90 is already a high bar. There is strong opposition to any changes in the consultative process run by the Government last year. The additional limitations in the bill are unnecessary but also restrict the court’s discretionary decision-making. The Government has not made the case for this change.

The Opposition will ensure that families are provided with legal advice and representation in any alternative dispute resolution [ADR] process. The Opposition welcomes ADR processes more generally prior to initiating court proceedings, but it is very concerned that families will not be able to participate in those processes on a footing equal to the department’s without access to independent legal advice and representation. Hopefully, the Opposition’s position on the Children and Young Persons (Care and Protection) Amendment Bill 2018 has been made very clear. The Opposition will not support the bill on the second reading vote but will move a range of amendments in Committee to try to salvage the legislation.

What the Opposition hopes to do prior to the second reading vote is persuade this House to press pause and to refer the legislation to the Legislative Council Standing Committee on Social Issues to inquire into and report on the issues raised by the bill. For completeness, I point out that the Opposition does not oppose the measures in the cognate bill dealing with Working With Children Checks to be required of all those working in the National Disability Insurance Scheme.

The ASSISTANT PRESIDENT (Reverend the Hon. Fred Nile): The Hon. Adam Searle mentioned in his speech certain documents he wishes to table. Would he identify those documents?

The Hon. ADAM SEARLE: Certainly, and I am happy to show them to the Parliamentary Secretary. There is a statement by the New South Wales Aboriginal Child, Family and Community Care State Secretariat [AbSec] dated 25 October, a joint sector statement made by various bodies and a letter with today’s date addressed to the Premier from 61 organisations and 700 individuals. I have read extracts from them, but for completeness I would like them to form part of the record of this debate, if there is no objection.

The ASSISTANT PRESIDENT (Reverend the Hon. Fred Nile): Does the member seek leave to table those documents?

The Hon. ADAM SEARLE: I seek leave to table those documents.

The Hon. Scott Farlow: Leave is granted.

The Hon. ADAM SEARLE: I thank the Government’s Parliamentary Secretary for that indulgence.

Documents tabled.