You are here

Child and Youth Safe Organisations Bill 2022

Cassy O'Connor MP  -  Thursday, 30 March 2023

Tags: Children and Young People, Child Safety, Legislation

Ms O'CONNOR (Clark - Leader of the Greens) - Mr Deputy Speaker, the Greens strongly support the establishment of child and youth safe standards and a reportable conduct scheme for Tasmania. We will be supporting this legislation. It has been a long time coming. This is a recommendation that was made by the Royal Commission into Institutional Responses to Child Sexual Abuse going back to 2016. It has been frustrating to the commissioners who are part of the commission of inquiry. It has also been very frustrating to the Greens that it has taken so long to arrive at this point. We are thankful that we are here.

We are at this point because the state of Tasmania, governments, community organisations, people from across the community, have failed children over decades. Betrayed their trust, taken their innocence, caused profound harm and lifelong trauma, have created an enormous well of grief. We heard the harrowing accounts of victim-survivors who had the courage to come before the commission of inquiry. We heard from whistle blowers. We know that this state, this parliament, our community has failed children ever since colonisation. It is very vital that we have a child safe culture here, that we do aspire to be the safest place in the country for children and young people. This legislation is an important part of that.

I remind the House of the words of the royal commission in making this recommendation when they said institutional child sexual abuse has been widely under reported. They strongly recommended the establishment of child safe standards and a reportable conduct scheme and said in their chapter on recommendation 7:

In Australia a reportable conduct scheme is the only model for independent oversight of institutional responses to complaints of child abuse and neglect across multiple sectors. Such schemes oblige heads of certain institutions to notify an oversight body of any reportable allegation, conduct or conviction involving any of the institution's employees.

The scheme also obliges the oversight body to monitor institutions, investigations and handling of allegations. The only reportable conduct scheme in full operation during the period of this inquiry was in New South Wales. Schemes began in July 2017 in Victoria and the Australian Capital Territory.

A couple of years ago, the Commissioner for Children and Young People, Leanne McLean, invited us to a briefing with the Victorian Commissioner for Children and Young People and they do have that regulator role. The have the oversight, monitoring and compliance functions that the regulator under this bill will have. By all accounts, it is an effective model that has changed organisational culture in Victoria and made Victoria a safer place for children and young people.

The royal commission recommended that state and territory governments establish nationally consistent legislative reportable conduct schemes based on the model in New South Wales. The royal commission was clear, such a scheme needed independent oversight, obligatory reporting by heads of institutions, inclusion of sexual misconduct as reportable conduct, inclusion of historical conduct, coverage of employees, volunteers and contractors, protections for persons making reports, and that there be strong powers and functions of the independent oversight body. All of those elements are within the bill that we are debating today. That is a good thing.

I recall that day before the commission of inquiry that Ms Haddad was talking about when we had the Integrity Commissioner, the Ombudsman, the Commissioner for Children and Young People and secretary of the then department of Communities, Gina Webster, giving evidence to the commission of inquiry. It was confronting and frustrating to hear our integrity bodies not able to describe a clear pathway for complaints of what have now been defined as reportable conduct in this bill, to describe processes and failures of function that led to children and young people being in less safe circumstances and not protected by those integrity bodies.

I also remember, and it was only a year ago that this evidence that was given, maybe not even that, secretary Webster, in response to questioning from the commissioners, understood that the legislation to establish child and youth safe standards and a reportable conduct scheme would be some two to three years away. I am pleased that the Government heard that and understood it would not be tenable for these key protective mechanisms to take so long to implement. That is a positive.

We asked the Attorney-General in October 2021 about counsel assisting Maree Norton's statement, 'We will examine concerns regarding the Tasmanian Government's lack of response to key recommendations of the national royal commission, in particular limited progress has been made on the introduction of a reportable conduct scheme or the implementation of the national principles for child safe organisations which were endorsed by COAG in 2019'. We wanted to know when the House would be seeing legislation to implement this framework. Today that day has come.

I will take the House through the opening statement of Commissioner Benjamin to the commission of inquiry.

He said:

The national royal commission reminded us that child sexual abuse takes many forms. The national royal commission taught us more about perpetrators.

He talked about calculated efforts to cover up the sexual abuse of a child to protect a perpetrator or preserve an organisation's interests or reputation, which can include failure to report abuse when required to do so, tampering with documents and outright corruption. Some organisations can close ranks and reinforce a culture of secrecy. They can ostracise or penalise those who are not willing to be complicit. Known abusers can be shuffled off to unsuspecting communities and the risks they pose to children minimised or ignored."

We know that happened in Tasmania. We know, for example, that teachers who abused primary school students and high school students were moved around historically by the Education department. Parents and victims were marginalised and silenced. The state absolutely failed those children and those families.

I have spoken to a victim/survivor of abuse in a public school setting. This abuse happened some 25 years ago and she is still quite broken inside. She still suffers a profound trauma, such that she left Tasmania. She cannot live here, it is too painful for her. That was an example of the state betraying the innocence of a child.

I commend the Premier, who as the former Education minister, worked with the Greens to establish that first inquiry into the Department of Education's historical responses to children and young people who were abused within those institutional settings. That, in some ways, laid the groundwork for the Tasmanian commission of inquiry.

We know that the commission of inquiry will hand down its report and recommendations on 1 May 2023. The Greens have been very concerned to ensure that, first of all, government keeps its commitment to implement all the recommendations of the commission of inquiry, but also that there is no delay in funding those responses.

Late last year in December, we wrote to the Premier seeking confirmation that there would be funding in the upcoming state Budget for the implementation of the commission of inquiry's recommendations. We got a very quick response from the Premier to say - and I am paraphrasing now because I do not have the letter in front of me - that they would be engaging with the commission. Government was well aware of the need to provide the resources necessary to implement the findings and the recommendations of the commission of inquiry, and we were glad to get that letter.

Commissioner Benjamin talked about the various settings where children and young people have been unsafe, abused and harmed, from healthcare settings to educational settings, to out-of-home care and within community organisations. The Greens are very thankful for the work of the commissioners and we are particular thankful and want to acknowledge the courage of victims/survivors and whistleblowers who came forward. Commissioner Benjamin said:

The information available to the commission invites the conclusion that child sexual abuse within Tasmanian government institutions has consisted of more than just isolated incidents of predators gaining access to children within an otherwise safe system. Rather, we are concerned that such abuse may have been made possible by structural weaknesses in how these institutions understand and respond to child sexual abuse. The reasons for this are likely to be complicated and require detailed exploration.

He said:

The issue of staff culture will be at the forefront of our inquiries. How is it that child sexual abuse has occurred in government institutions? At worst, there may have been an active culture of cover-up or minimisation to protect reputations and institutional interests.

Mr Deputy Speaker, I think we had confirmation of that through the evidence that came to the commission of inquiry, particularly in relation to the tragic failure to protect people from a predator who was working in the Launceston General Hospital for many years.

This bill should be an important part of changing culture, where organisations are made to understand the rights of children to be safe and protected from harm and that they have legal obligations to act to protect children from harm, because as we learned from the commission of inquiry and the royal commission, much of this is systemic and cultural, and it is one thing to have mandatory reporting obligations or there to be an expectation on government to respond and act to protect the interests of a child, but there is a whole range of organisations where children can be placed at risk and their trust abused and their innocence broken. That is why legislation like this is so critical because it can lead to cultural and systemic change across the community.

We are perplexed about why government would not move to establish that regulator's role within the Office of the Commission for Children and Young People. I understand that it is important that we have the standards in place and the Reportable Conduct Scheme, but I share some of the concerns that have been expressed key stakeholders, including the Commissioner for Children and Young People and TasCOSS and have been articulated by Ms Haddad, that we are setting up another oversight body and we are not looking at the system as it is now and what you could do to expand the capacity of the Office of the Commissioner for Children and Young People and create a commission for children and young people, which is what they have in Victoria.

I understand the Attorney-General would want to have that regulator in place as soon as possible but I am hopeful that this does not mean there will not be active consideration of a different kind of structure that incorporates the work of the Commissioner for Children and Young People -

Ms Archer - I am very open to that.

Ms O'CONNOR - Good - and strengthens that role in that office and resources it to provide the monitoring, oversight and compliance functions of the regulator.

Another issue raised by the Commissioner for Children and Young People - and it was responded to in part in the final bill that came forward - was about the absence of objectives and principles in the legislation itself. The object of the act now is described in clause 3:

Without limiting the provisions of the act, the object of the act is to protect and promote the best interests of children.

I think that the legislation could have been more clearly right spaced and included language that incorporated some of the provisions in the UN Convention on the Rights of the Child. We have in this very significant convention a number of clauses which relate specifically to the safety of children and young people and what should be and hopefully are the objectives of this bill. The UN convention talks about how the best interests of the child must be a top priority in all decisions and actions that affect children. Governments must do all they can to make sure every child can enjoy their rights by creating systems and passing laws that promote and protect children's rights. We are doing that today.

Every child has the right to life, governments must do all they can to ensure that the children survive and develop to their full potential. Every child has the right to express their views, feelings and wishes in all matters affecting them and to have their views considered and taken seriously. This right applies at all times. In part, this clause goes to the question asked by Ms Haddad, about how we can ensure Tasmanian children and young people understand the protective nature of this framework, what their rights are, and how to give effect to those rights. How this legislation applies to them.

The UN convention says governments must do all they can to ensure that children are protected from all forms of violence, abuse, neglect and bad treatment by their parents or anyone else who looks after them. The convention requires governments to protect children from all forms of sexual abuse and exploitation, to protect children from torture or being sentenced to the death penalty or suffering other cruel or degrading treatment or punishment. The UN convention says children who have experienced neglect, abuse, exploitation and torture or who are victims of war must receive special support to help them recover their health, dignity, self-respect and social life.

This goes in part to what Ms Haddad was saying about the need potentially for a review before the three-year statutory review provision arrives. To examine once we have the standard and the reportable conduct scheme in place, how we can create a more rights-based framework for children and young people in this legislation. I would think power up the Office of the Commissioner for Children.

In its letter of 28 March, a couple of days ago, the TasCOSS has written to both the Premier and the Attorney-General, raising some issues. I want to put them on the record. Dr Charlie Burton from TasCOSS says -

We remain concerned about aspects of the regulatory framework introduced in the bill. Our main concern is that the framework and regulatory scheme outlined in the bill will become operational before a regulator has been established. This may result in rushed implementation of the regulatory framework outlined in the bill, including the role of the regulator, ultimately compromising the ability to develop and implement a robust, adequately resourced and independent oversight mechanism.

We know that there are two groups of entities to which this legislation will apply. The first group on 1 January 2024 and then smaller community organisations on 1 July 2024. The Attorney-General wants the regulator to be in place by 1 July 2023. Presumably, once parliament passes this bill, as I am sure it will, those child and youth safe standards will be in place. There will be aspects of this legislation which are in place, before we have a regulator established as TasCOSS points out.

The letter goes on:

Our member organisations who regularly interact with the Office of the Commissioner for Children and Young People who will subject to the framework, are strongly in favour of an independent commission that absorbs the current functions of the Commissioner for Children and Young People.

TasCOSS also supports the implementation of an oversight mechanism which works in a very child-centred way, which includes a body and a framework that upholds the fundamental rights of children as well as engaging in work which is, where possible, child-led and child-focused.

In this letter, Dr Burton says:

We strongly recommend the Government works proactively with the Commissioner for Children and Young People to determine how to successfully implement the oversight measures outlined in the bill, allowing for the oversight functions to commence as soon as practicable, but also planning for how these functions may change once the independent regulator is established.

We would like to hear from the Attorney-General today who said it by way of interjection, but in the second reading response a commitment to examine the Victorian model for oversight monitoring and compliance; discussion about the merits of having a Commission for Children and Young People that has these regulatory functions; and we would like a commitment to having a clearly articulated child rights focus within the bill.

That is all I have by way of questions. I thank the departmental and Attorney General's office staff who were patient with us and provided us with a briefing the other day, to commend those who have worked on this legislation. It is such a significant piece of legislation and you would want to get it absolutely right. I thank the Attorney-General for hurrying this along, which she may have after hearing from the commissioners at the commission on inquiry. The Greens will be supporting this bill.