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Introduction and First Reading

Bill introduced, on motion by Ms S.M. McHale (Minister for Community Development, Women’s Interests, Seniors and Youth), and read a first time.

Second Reading

MS S.M. McHALE (Thornlie - Minister for Community Development, Women’s Interests, Seniors and Youth) [12.28 pm]: I move -

That the Bill be now read a second time.

This Bill is a milestone for the wellbeing of children, families and communities in Western Australia. It is the culmination of much detailed work over many years, and repeals legislation that is more than 50 years old. Western Australia has been, until now, the only State in Australia that has not introduced modern child protection legislation in recent years. Whereas the Western Australian legislation is embarrassingly outdated, the new legislation reflects current research evidence and contemporary practice. The Bill will give clear direction for a model of best practice, with an emphasis on supporting family wellbeing and supporting the capacity of families to care safely for their children. The reform process began in 1987 when the then Labor Government began an extensive review of child welfare and community services legislation in this State. That review led to the release of a report titled “Laws for People” that recommended the repeal of existing legislation and development of a new replacement Act. The Court Government did not give sufficient priority to the task of progressing the development of legislation. Our Government has now rectified that situation and it gives me pleasure to bring this Bill to members today for their consideration. This Bill introduces the most significant changes to child protection legislation in Western Australia since 1947. It emphasises our Government’s strong commitment to valuing children; improving the wellbeing of children by strengthening families, individuals and communities; and protecting children from harm.
The objects of the Bill clearly articulate the breadth of this legislation. The objects are to promote the wellbeing of children, other individuals, families and communities; acknowledge the primary role of parents, families and communities in safeguarding and promoting the wellbeing of children; encourage and support parents, families and communities in carrying out that role; provide for the protection and care of children in circumstances in which their parents have not given, or are unlikely or unable to give, that protection and care; protect children from exploitation in employment; and protect and promote the best interests of children who receive child care services.

The Bill provides a new way of responding to the complex social issues that have emerged in recent decades. The legislation provides the framework to improve best practice that is evidence-based. There is overwhelming research that supports the view that children’s wellbeing is best maintained in their families and communities, and that the experience of being “in care” can result in its own set of negative consequences. It is also evident from research that there is clearly a need for investment in services to support families at risk of child abuse or neglect before they become involved in the child protection system.

The other imperative for the introduction of contemporary legislation has been the need to update our legal processes to protect children from harm. The Bill includes new grounds for statutory intervention as well as an expanded range of orders to protect children from harm. The Gordon Inquiry into Response by Government Agencies to Complaints of Family Violence and Child Abuse in Aboriginal Communities also highlighted the need for updated legislation, and this Bill ensures this Government is responding to that inquiry.

The Bill repeals the Child Welfare Act 1947, the Welfare and Assistance Act 1961 and the Community Services Act 1972 - Acts that are outdated and do not adequately reflect current practice.

Consultation with key stakeholders has occurred in the development of this Bill. The consultation has been with not only service providers in government and non-government areas but also, importantly, children, families and communities. Particular attention has been given to the feedback from children who have been in care. Non-government agencies and key stakeholders have long held expectations that new legislation will be introduced and will encourage better outcomes for children and families as well as improved working relationships between service providers.

I will now turn to the details of the Bill. Part 2 of the Bill contains the objects and principles that must be followed in performing any function or exercising a power under the Bill. The overriding principle is that the best interests of the child must always be paramount. In performing a function or exercising a power under this Act in relation to a child, a person or the court must regard the best interests of the child as the paramount consideration. In addition, an important feature of the Bill is the inclusion of factors that must be taken into account when determining the best interests of a child. They include the need to protect the child from harm; the capacity of the child’s parents, or of any other person, to provide for the child’s needs; any wishes or views expressed by the child, having regard to the child’s age and level of understanding in determining the weight to be given to those wishes or views; the importance of permanency in the child’s living arrangements and the likely effect on the child of disruption of those living arrangements; and the child’s cultural, ethnic or religious identity.

If a decision under this Bill is likely to have a significant impact on a child’s life then, for the purpose of ensuring that the child is able to participate in the decision-making process, the child should be given adequate information, in a manner and language that the child can understand; the opportunity to express the child’s wishes and views freely, according to the child’s abilities; any assistance that is necessary for the child to express those wishes and views; and adequate information about the decision made and an explanation of the reasons for the decision. The Bill also contains provision for a child’s parents, and any other people who are significant in the child’s life, to be given an opportunity and assistance to participate in decision-making processes under this Bill. This may include, for example, grandparents.

When I introduced amendments to the Adoption Act last year, I indicated that the Aboriginal and Torres Strait Islander child placement principle would also be enshrined in future children’s legislation. Accordingly, this principle is inserted into the Bill. The inclusion of the principle has strong support from the Aboriginal and Torres Strait Islander community. I want to emphasise that this principle complements other principles in the Bill and does not override the principle that the best interests of the child must always be the paramount consideration. In cases in which children have both an Aboriginal and non-Aboriginal parent, family members have an equal right to provide care in accordance with the principle.

The Bill places an obligation on the chief executive officer to develop guidelines for making out of home placement arrangements for children from culturally and linguistically diverse backgrounds. These guidelines must be developed within 12 months of the Bill coming into operation. The Bill requires the CEO to publish a Charter of Rights for Children in Care within 12 months of the Bill being proclaimed. The Bill places an obligation on the CEO to promote compliance with the charter. The charter will be developed in consultation with children in care, their families and service providers, and will strengthen the existing standards in out of home care.

Part 3 of the Bill deals with administrative matters, replacing similar provisions in the Community Services Act 1972. Of particular importance are the broad functions of the CEO, which include providing, or assisting in the provision of, social services and the need to promote the wellbeing of children, families, individuals and communities. The Bill also requires the CEO, in performing functions under the Act, to have regard to the need to promote the development and strengthening of families and communities.

Owing to the complex nature of child abuse and problems within families, effective child protection and prevention of child abuse can be achieved only if professionals and agencies work in partnership. The Bill promotes a collaborative approach between the Department for Community Development and other agencies in the provision of social services and provides for interagency cooperation, particularly in relation to the protection and care of children and the provision of financial or other assistance. Effective collaboration and cooperation have been consistently highlighted in child death inquiries as being of critical importance to the prevention of such deaths. The Bill also includes a provision that facilitates the exchange of information relevant to the wellbeing of children.

Part 4 deals with the protection and care of children and is the largest part in the Bill. A critical aspect of child protection is the criteria used to determine when a child is in need of protection. A major reform in the Bill is the focus on significant harm to the child, and the parents’ ability or willingness to protect the child from harm. The Bill achieves a balance between statutory child protection powers for authorised officers and adequate safeguards against the misuse of those powers. The Bill requires a warrant from the Children’s Court before a child can be taken into the provisional protection and care of the CEO, except in emergency situations when the child is at immediate and substantial risk. This is a major improvement on current practice under the Child Welfare Act, which provides for children who are in need of protection to be apprehended into the care of the department without any prior approval from the court. The Bill emphasises that the removal of a child from the family is such a critical decision in a child’s life that it requires court sanction.

The Bill provides for the Children’s Court to have discretion to order that a child be separately legally represented. If a separate representative is appointed for a child who is too young to give instructions, the separate representative must act in the best interest of the child.

A flexible mechanism for alternative dispute resolution is provided for through pre-hearing conferences, and the court will have the power to seek independent expert reports to assist with decision making. Procedural court matters, including provisions about interim orders, are also described more clearly in the Bill to address some of the many inadequacies of the current Child Welfare Act. The court will not be able to make a protection order for a child without considering a proposal or report from the CEO outlining the proposed arrangements for the wellbeing of the child. These are all new features; they are not found in the current legislation.

The Bill provides for more flexible options for court orders to meet the needs of children and their families in circumstances in which parents and family members are not able to safely meet those needs. It establishes four new court orders: a protection order - supervision; a protection order - enduring parental responsibility; a protection order - time-limited; and a protection order - until the age of 18. A protection order - enduring parental responsibility - is an order that transfers parental responsibility for a child from the parents to someone other than the chief executive officer, such as a relative or carer, until the child turns 18 years of age. The court will have the power to order ongoing payment of subsidies to enable continuing financial support to the child’s carers. This type of order provides a mechanism, for instance, for grandparents to have lawful parental responsibility for their grandchildren when the court has determined that they are in need of protection.

A protection order - time limited - is an order that gives the CEO of the department parental responsibility for the child for up to two years in the first instance. This order is similar to an order under the Child Welfare Act; however, the Bill provides for additional matters that must be considered before the order can be made. The CEO may apply for an extension of the order, but only after completing a review of the care plan for the child. The court may extend the order if satisfied that it is in the best interests of the child to do so; extension of such orders will only be possible for periods of up to two years on each extension. However, the court will need to consider the CEO’s proposal regarding plans for securing long-term stability, security and safety in the child’s relationships and living arrangements.

A protection order - until 18 - is an order giving parental responsibility for a child to the CEO of the department until the child reaches 18 years. Before making such an order, the court must be satisfied that long-term arrangements should be made for the wellbeing of the child.

Thorough and regular case-planning processes and ongoing evaluation are fundamental components of ensuring that a child’s experience in out-of-home care is as positive as it can be. A significant aspect of the Bill is the focus on planning processes for children at all stages of their care experience. The Bill includes an option for the CEO to care for children who are not placed under a protection order by the court because of child protection concerns. Although the CEO currently provides care to such children, the Child Welfare Act does not make any provision for these types of care arrangements.

Parents who are unable to care for their child may enter into an agreement with the CEO to make a placement arrangement for the care of the child by the CEO. I want to emphasise that the parents, and not the CEO, retain legal parental responsibility for the child. An important restriction on this type of care arrangement is that it cannot be used if there are reasonable grounds to believe that the child is in need of protection. In such situations the CEO will need to make an application to the court for a protection order.

In recent years a growing body of research has examined the experiences of young people after they leave care. Some of the negative outcomes for children after formal care include homelessness; substance abuse; mental health, education and employment issues; poor social support systems; and criminal behaviour. Our Government is committed not only to improving the experiences of children whilst in care but also to providing assistance and support towards independent living. The Bill enshrines in legislation for the first time the provision of support services to young people after the care has officially finished, and recognises that long-term planning is critical before young people leave care. The aim is to ensure a smooth transition from care to independence and is particularly targeted at young people who do not have the support of family during that transition.

The CEO must ensure that a child who leaves the CEO’s care is provided with social services that the CEO considers appropriate, having regard to the needs of the child as identified in the child’s care plan. In addition, the CEO must ensure that a person who qualifies for assistance is provided with services to assist the person with such things as obtaining accommodation; undertaking education and training; finding employment; legal advice; and accessing health services and counselling services.

The CEO may also provide financial assistance in the form of a contribution to expenses incurred in obtaining, furnishing and equipping accommodation; and a contribution to expenses associated with seeking employment or undertaking education or training. In most cases a young person will qualify for assistance if the young person leaves care at the age of at least 15 years. Assistance may continue if required until the young person reaches the age of 25 years.

It is the Government’s view that this Bill should contain a variety of modern, flexible mechanisms to respond to the many different situations when a child’s wellbeing is at risk. In particular the Bill provides for the police and department officers to move a child to a safe place when the child is not under the immediate supervision of a parent or adult and there is a risk to the child’s wellbeing because of the nature of the child’s location, the child’s behaviour or vulnerability at that location or any other circumstance. The provision also applies to a child who is an absentee student.

From time to time, departmental officers are required to work with children in care who exhibit behaviours that are difficult to manage. Such behaviours may include assault on departmental officers and other children, self-harming behaviour, destruction of property and concealment and use of weapons. The department has an obligation to take all reasonable care for both the safety of children in care as well as the safety of employees. The Bill recognises the need to clarify both the legal boundaries for departmental officers and the rights of the child in care. The Bill contains provisions for restraining and searching a child in the CEO’s care and seizing prohibited articles, dangerous disposable articles and intoxicants. An authorised officer will have the power to protect the health and safety of the child and other persons and prevent serious damage to property. Power exercised under these provisions will be by authorised officers with specialist training to use their powers in a responsible manner. Regulations will also prescribe procedures that must be followed by authorised officers when taking action under these provisions. The protective powers conferred on authorised officers in relation to restraint, search and seizure may be exercised by departmental officers and police officers when moving a child to a safe place.

An important aspect of the Bill is the inclusion of a two-tiered mechanism for review of case-planning decisions. The first review is to a case review panel, which must be established by the CEO. The panel is to consist of at least three people who have appropriate experience, skills, attributes or qualifications to enable them to perform their review function. An officer from the Department for Community Development cannot be a member of the case review panel. An application for the review of a case-planning decision may be made to the CEO by the child, a parent of the child, or any other person considered by the CEO to have a direct and significant interest in the wellbeing of the child. For example, this could be a child’s carer or significant relative such as a grandparent. It is important to note that one of the guiding principles that must be followed is a requirement to provide parents and other people who are significant in the child’s life with adequate information about relevant complaint and review procedures. Following review of the report from the case review panel, the CEO must confirm, vary or reverse the case-planning decision; or refer the matter back to the case review panel for further consideration and report.

A new feature of the Bill is the option for further review of a case-planning decision through a mechanism independent of the department. The Bill makes provision for parties to apply for a review by the proposed State Administrative Tribunal when they are still unhappy with the CEO’s decision.

Part 7 of the Bill provides for the employment of children. The Bill addresses protection concerns associated with child employment. Other matters such as occupational health and safety issues, educational issues and industrial issues are dealt with in other legislation. For example, it is an offence under the School Education Act 1999 for a person to employ, or permit to be employed, a child of compulsory school age during the hours when the child is required to attend school or otherwise participate in an educational program of a school. The Government recognises that many children who are still attending school also engage in part-time employment outside school hours. The Bill is intended to achieve a balance so that children can experience the benefits of employment without compromising their education or wellbeing. It further acknowledges that in the first instance parents have a primary responsibility for protecting their children from exploitation in employment situations.

The Bill updates existing provisions in the Child Welfare Act. A significant inadequacy of the current Act is the absence of a minimum age for the employment of children, except in relation to street trading. The Bill rectifies this situation by prohibiting employment of a child under 15 years of age in a business, trade or occupation carried on for profit. Specified exceptions are in family businesses, entertainment and the making of an advertisement, delivery work, and working in a shop, restaurant or retail outlet. The CEO is given a broad power to prohibit or limit any employment situation that is harmful to the child’s wellbeing. A further child-protective aspect of the Bill is the retention and strengthening of the offence provision that prohibits the employment of a child to perform in an indecent manner, particularly in relation to pornography.

Part 8 of the Bill provides for the licensing of child-care services and substantially amends existing provisions in the Community Services Act. The Government recognises that quality child-care services is one of the most important and critical issues for many young families in Western Australia today. More than 70 000 children are cared for in child-care services in this State. Parents have a right to expect that the licensing framework will ensure that children who receive child-care services are safely cared for in an environment that promotes the child’s wellbeing and is responsive to their developmental needs.

A new feature in the Bill is the inclusion of specific guiding principles, which must be observed in the administration of this part of the Bill. Child-care services should be provided in a way that involves parents and other members of the community and reflects the diverse nature of the community. The Bill improves the current legislative framework for child-care services to address the emerging trend for large corporations to enter the child-care services industry. In particular the legislation introduces a requirement for a dedicated person to be present at every child-care service location to supervise and control the service on a day-to-day basis. The Bill sets out the meaning of child-care service as a service for the casual, part-time or day-to-day care of a child or children under 13 years of age which is provided for payment or reward, whether directly or indirectly through payment or reward for some other service, as a benefit of employment or as an ancillary service to a commercial or recreational activity.

Debate interrupted, pursuant to standing orders.