Child Safety Bill fundamentally flawed
16 February 2017
The Law Society is extremely disappointed that the Children and Young People (Safety) Bill introduced into parliament this week makes no improvement on the fundamentally flawed draft Bill that was sent out for consultation.
The Law Society, along with several other organisations, identified significant shortcomings with the Bill, citing a failure to adopt many of the Nyland Royal Commission recommendations in the manner that the Commission clearly expressed.
“The Royal Commission into Child Protection identified serious failures in the Department to act on notifications about children being subject to harm, yet the Bill does not address this fundamental failing,” Law Society President Tony Rossi said.
“Instead, the Bill gives the Chief Executive of the Department for Child Protection discretion as to whether to cause an assessment or investigation into the circumstances of a child upon receipt of a mandated notification. The Royal Commission clearly recommended that an assessment or investigation must be performed if a child is believed on reasonable grounds to be at risk of harm. The purpose of this recommendation is to ensure that alarms raised about the welfare of children are actually followed up.”
“The failure of the Child Protection Department to investigate notifications about child abuse was central to why the Royal Commission was established,” Mr Rossi said. “The Commission, in cataloguing the litany of shortcomings within the department, concluded that the best way forward was to compel the Department to act upon notifications concerning at-risk children. Sadly, the Bill fails on this fundamental point.”
“The shifting of the responsibility in the Bill for child protection from the Minister to the Chief Executive of Child Protection is a retrograde step,” Mr Rossi said. “Child protection is far too important for it not to be clearly the responsibility of a Minister in the Bill.”
“The Bill contains no express reference to the best interests of the child as a primary consideration,” Mr Rossi said. “In terms of both the overarching principles and the substance of the provisions, the primacy of the welfare of the child is invisible in the Bill.”
The Law Society is also strongly opposed to the onus of proof being placed on parents to show why children should not be removed from their home. “Many families subject to application orders are severely disadvantaged,” Mr Rossi said. “Forcing parents to bear the onus of proof will only exacerbate the stress and disadvantage. This will have a particularly devastating impact on Aboriginal families who are grossly overrepresented in the child protection system and would have to bear the extra burden of opposing departmental orders when they should in fact be receiving greater family and cultural support.”
“If the Department is seeking to remove a child from parents and it is opposed the Department should have to prove why the court should endorse its position.”
“Further, whilst parents who wish to apply to the Tribunal for relief are subject to a time limit of two weeks, time limits are not a feature where there is a responsibility on the part of the Department.”
“Given the breadth of our concerns, we are disappointed that we were not consulted further on the Bill before it was introduced into Parliament,” Mr Rossi said.
The extent of the Law Society’s serious concerns cannot be fully expressed within a media release. Read the Society’s 16-page submission on the draft Bill.