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Justice Miscellaneous (Commissions of Inquiry) Bill 2021

Cassy O'Connor MP  -  Thursday, 18 March 2021

Tags: Commission of Inquiry, Child Abuse, Child Safety, Justice, Legislation

Ms O'CONNOR (Clark - Leader of the Greens) - Madam Speaker, the Greens will of course support the Justice Miscellaneous (Commissions of Inquiry) Bill 2021. I want at the outset to thank the officers from the minister's department for the briefing they provided to our office yesterday. A number of questions were asked in that briefing and we were reassured by the readiness of clear answers and the openness about the legislation and its intent. I personally am reassured by the quality of people who have been working on this legislation.

Ms Archer - Hear, hear - so am I.

Ms O'CONNOR - Behind this amendment bill is so much trauma. I think it is reasonable to say that as a state we have been failing children and young people for decades. I remember a previous commissioner for children who talked about Tasmanian's residual culture of child abuse and neglect. I agree with my colleague, Ms Haddad, about the importance of sunlight as a cleanser. It is so important that we shine the light onto agencies' practices and, if necessary, individuals who have been responsible for harming children.

We are having this debate today in part because of the Royal Commission into Institutionalised Responses to Child Sexual Abuse, established by former prime minister Julia Gillard. We are also here because of a sequence of events and information that came forward over the past year or so that made it clear that we needed to build on the work of the royal commission and make sure we had a process here for having a look at the treatment of children and young people in state settings. It was about three weeks ago that Tasmania Police handed down what was effectively an internal review into their handling of the Griffin matter. Tasmanians discovered that over the course of 10 years, in 2011, 2013, 2015, 2017 and finally in 2019, reports were made to Tasmania Police about the conduct of James Griffin. In one instance, the information was provided by the Australian Federal Police in relation to information about potential use of child pornography by Mr Griffin. We still do not know why that went nowhere and still have yet to understand how it could be that information was brought forward to Tasmania Police over an extended period of time and it did not go anywhere.

I have no doubt at all that Commissioner Hine and many within Tasmanian Police felt that same sense of sadness when they read that review report that we did. I acknowledge that Commissioner Hine sincerely apologised to Griffins' victims for the failures of Tasmania's police. The failures that were detailed went beyond just that of Tasmania Police; there was a clear failure to share information across agencies or, if information was shared, to effectively act on that information. The agencies that were captured by that failure were Communities Tasmania and Child Safety Services. There is also a question mark over how Mr Griffin was able to obtain working with vulnerable people registration and how it was that once the final complainant came forward, it took three months for Mr Griffin to be removed from his place of work at the Launceston General Hospital where he was in regular contact with children and young people, and why it is that he continued to carry his working with vulnerable people registration after such a serious complaint of child sexual abuse had been made against him.

These are the sorts of matters that would be examined by a commission of inquiry. We also know now that there is clear evidence of historical abuse within the Department of Education and a process which had the esteemed Professor, Tim McCormack, leading it, established. We also know that at Ashley Youth Detention Centre, there was a long and tragic history of the mistreatment of young people, and in some instances that goes to the sexual abuse of young people.

Ms Haddad was talking earlier about the terms of reference. I cannot identify any substantive differences between the draft terms of reference and the final terms of reference. It is the Greens deep concern to see the commission of inquiry examine the abuse of children that extends beyond sexual abuse. The Commission of Inquiry Act order to establish the Commission of Inquiry states:

Whereas all children deserve a safe and happy childhood and Tasmania recognises that Australia has undertaken international obligations to take all appropriate legislative, administrative, social and education measures to protect children from sexual abuse and other forms of abuse, including measures for the prevention, identification, reporting, referral, investigation treatment and follow up of incidents of child sexual abuse.

The information that we have received from inside the Ashley Youth Detention Centre points to a place where there is a culture amongst some staff there of harming children or setting children against each other or preventing therapeutic responses to the needs of those young people in Ashley Youth Detention Centre. From the Custodial Inspector's report, searches of people who come into the Ashley Youth Detention Centre have been sporadic at best. We know, for example, the policy at Ashley Youth Detention Centre changed a couple of years ago in relation to strip searches. It was policy that all young people who came into Ashley and were strip searched were provided with the opportunity to have what is called a modesty gown, and that no modesty gowns were available at Ashley Youth Detention Centre. The strip searching continued against government policy at Ashley in clear breach of the rights of those children.

We recognise that the case for the commission to examine how young people are treated at Ashley is compelling and it is unarguable. It is still a matter of great regret to the Greens that the minister for children is ploughing on with a refurbishment of a place that damages children. We have had whistle-blower evidence of young women going in there out of the night court in Launceston, being raped over the weekend by other detainees and let out the front gate on the Monday - different people, a bit broken.

It is a reckless use of government funding, the $7 million or $8 million refurbishment budget for Ashley when a commission of inquiry will undoubtedly examine the way young people are treated at Ashley and find it is wanting.

Given the likelihood that a number of government agencies and their policies, practices and where it has happened, failings will be captured by the commission of inquiry, we would like, and notwithstanding amendments in this bill, a clear statement from the Attorney-General about the whistle-blower protections so that when someone inside an agency comes forward with information that is certainly germane to the commission of inquiry's investigations and relevant and important that that person feels the law and the processes of the commission of inquiry will protect them.

If the Attorney-General could go to that briefly, that would be excellent. We have already spoken to at least one potential whistle-blower with very detailed and important knowledge who wants some reassurance from government that they will be protected. That is absolutely vital, just as the need to protect victims and survivors who come before the commission of inquiry or give evidence; whether it is as a result of the provisions of this bill anonymously or under a pseudonym, we need to protect them. This amendment bill does put those protections in place for victims and survivors who come forward.

We acknowledge that not everyone made it. For some victims of past child sexual abuse, life became unbearable. Going to the bill, parts 2 and 3 of the amendment bill amends section 103 of the Children, Young Persons and Their Families Act 1997: these amendments have been separated, despite relating to the same section because Part 3 contains retrospective provisions and Part 2 establishes a criminal offence which cannot be applied retrospectively in relation to the duty to maintain confidentiality where, should a person breach that duty, they are potentially subject to a fine not exceeding 50 penalty units or imprisonment for a term not exceeding two years, or both.

Section 103 of the Children, Young Persons and Their Families Act sets out requirements for a person administering the act, or a person who attends a family group conference to not divulge personal information relating to a child, guardian, member of the family, or a person alleged to have abused, neglected or threatened a child, except if authorised or required to by law. Part 2 establishes a similar offence for the disclosure of information obtained via the mechanisms in Part 3 of the bill. Part 3 allows for information in relation to the existing provisions of section 103 of the principal act to be disclosed for the person to whom the information relates; a person seeking to bring legal in relation to matters covered by the principal act; in order to respond to said actions for use in the commission of inquiry; or for an employment investigation or process, including a Working with Vulnerable People check.

Some of these matters relate to the same purpose as the proposed - and then subsequently withdrawn late last year - amendments to the Justice and Related Legislation (Miscellaneous Amendments) Bill 2020 as well as the 25 November 2020 gazettal of exemptions to the Personal Information Protection Act 2004.

A couple of key distinctions between the earlier legislation and the gazettal is that the amendments before us in this bill provide identical rights of access to claimants and Crown law, and the scope of what is releasable is much more specific and ensures that personal information unrelated to the claim can be redacted or anonymised, which we believe is a more reasonable, balanced and equitable approach.

Parts 6 and 7 apply the same provisions to the Youth Justice Act 1997 that Parts 2 and 3 apply to the Children, Young Persons and Their Families Act 1997. In the short amount of time that we have available we did consult with key stakeholders and I also seek some clarification from the Attorney-General. I believe the section 7 amendments to section 103 of the Children, Young Persons and Their Families Act are about who the information relates to, not who is able to access it. The concern has been expressed that an alleged perpetrator may be entitled to access the personal information of a victim without these amendments. This information might not be available to a defence team, for example, in a criminal prosecution. There is a concern that this information could be used to attack the claimant's credit. We need an explanation as to why the information could be shared with an alleged perpetrator, particularly in criminal matters.

There is also a question about the section 9 amendments to the Commission of Inquiry Act in clause 3(b) Why the narrowing of the definition of misconduct? There is a concern this will make it harder for the commission of inquiry to make adverse findings against particular individuals if the adverse findings need to be linked to criminal, civil or disciplinary level proceedings.

There is also a question about the destruction of documents, which was included in the gazetted notice. Could the Attorney-General clarify that the order by gazette relating to the destruction of documents sits alongside this amendment bill? Perhaps we could understand why no reference to the destruction of documents was included in the gazetted exemptions.

Why are there no requirements in the amendments that this information can or should be shared with the claimant and/or their legal representatives? Perhaps the Attorney-General could go to that question.

I would also like to understand, given the terms of reference, how government-funded entities may or may not be captured as part of the commission of inquiry. The terms of reference in the preamble, reading from the top:


Whereas all children deserve a safe and happy childhood, …

Then four paragraphs down:


And government institutions, including child care, educational and other institutions provide important services and support for children and their families that are beneficial to children's development.

Members know that in the past 10 to 15 years, there has been increasing outsourcing of services and, to some extent, responsibility and accountability, to community sector and not-for-profit and for-profit providers.

Given that, look at the case study of 'Safe Pathways', for example, a for-profit provider given responsibility for children who were on care and protection orders. Therefore the state was their parent, but the state outsourced that parenting, if you like, to a for-profit provider which, it was revealed, was not providing, on the evidence, the best of care to those children. If someone is working for any one of the charitable organisations, for example, that receive government funding to undertake a service, how may they be captured by the commission of inquiry's work?

We would not want to see the scope narrowed only to state settings, because the state purchases services through not-for-profit and for-profit entities. Those entities then, have the responsibility of caring for those children and young people and so they should most certainly be captured by the commission of inquiry's work, given that in all likelihood there are more children and young people within services provided by community sector organisations than there are in state settings outside the education system. If the Attorney-General could go to that, it would be excellent.

As we know, for example, there are 600 or so foster carers in Tasmania and they have one of the most important jobs going around, Madam Speaker. They are looking after children who for one reason or another are not able to be cared and provided for by their family. They are looking after children who invariably will have some form of trauma. Can we have an assurance that the commission of inquiry would be able to examine matters relating to foster carers who sit somewhat outside the state system, even though the services that they work for are funded by the states. We hear some quite confronting testimony about some of the things that happen inside the child safety system and the foster care system. Obviously when that information comes to us in recent times we have been appointing people to making a submission to the commission of inquiry. There is a bit of a concern in the broader community sector, or people I talk to in the community sector, that there does not seem to be enough of a connect between government working to implement the recommendations of the royal commission as they relate to children and young people and the community sector, which sits outside government. If the minister could address that, that would be very helpful.

They are the main points I wanted to make and questions I wanted to ask. Should those questions be answered to our satisfaction, I can see no reason to go into Committee on this bill. Certainly we will be supporting it, gladly.