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ACT to remove sex crime immunity that originated in Ancient Rome

A common law immunity against historical child sexual abuse charges is set to be revoked in Canberra, as part of a suite of greater child protection laws.

Until 1985, there was a common law presumption in the ACT that a male under 14 years was "incapable of sexual intercourse".

The clause is part of a wider bill enacting recommendations from the royal commission into institutional child sex abuse. The clause is part of a wider bill enacting recommendations from the royal commission into institutional child sex abuse.

Is your child in OOHC ten years old? They can legally apply to come home.

Children and Young Persons (Care and Protection) Act 1998 No 157 - S51 Duty of Secretary to give information to certain persons

(1)  If a child or young person is in the care responsibility of the Secretary under this Part or a warrant issued under section 233, the Secretary:
(a)  must, as soon as practicable, cause notice of the fact that the child or young person is in the care responsibility of the Secretary, and the fact that an application may be made to the Secretary for the discharge of the child or young person from the care responsibility of the Secretary and the procedures for making such an application, to be given to:
(i)  in the case of a child who is of or above the age of 10 years or a young person—the child or young person, and

"Children and Young Persons (Care and Protection) Amewndment (Homelessness Reporting Age) Bill 2010"

Page: 28919
Agreement in Principle

Debate resumed from 24 November 2010.

Mr STUART AYRES (Penrith) [4.31 p.m.]: I shall make a brief contribution to the debate on the Children and Young Persons (Care and Protection) Amendment (Homelessness Reporting Age) Bill 2010. The object of the bill is:

        … to amend the

Children and Young Persons (Care and Protection) Act 1998

        to require the Director-General of the Department of Human Services to act on reports on the homelessness of young persons who are 16 years old and to enable such reports to be made without the consent of the young person concerned. At present, reports on the homelessness of young persons (namely 16 and 17-year-olds) may only be made with the consent of the young person and the Director-General is not required to act on any such report.


The member for Goulburn made the valid point in her agreement in principle speech that the law change last year relating to school attendance left many young homeless people in somewhat of a bureaucratic limbo, given that the link has been broken between the school leaving age and the responsibilities of parents and guardians, including the Minister for Community Services in the role of guardian, and the importance of stable housing for young people. The amendments in this bill help to correct some of those changes. Youth homelessness is a serious issue across New South Wales. The Youth Accommodation Association has provided interesting data on this issue to many members in this place.

Youth homelessness is not isolated or focused in one region; it stretches across all of New South Wales. In 2006 the number of young homeless people aged 12 to 24 years in New South Wales totalled 7,672, representing 28 per cent of the State's homeless population. In the 12-year to 18-year age group, females outnumbered males 56 per cent to 54 per cent, not including the thousands of young people at risk of homelessness. The association expressed its view that homelessness is not just about rooflessness; it is also about missing a stable connection with family networks, friends, broader community groups, sporting clubs and areas where they find the love and support they so desperately need for a strong upbringing.

The majority of homeless young people are often categorised as secondary homeless. Many experience long periods of couch surfing and moving from house to house, with no stable environment in which to work. On Monday I hosted a mental health forum in the Penrith electorate. I thank the member for Barwon, Senator Marise Payne and Senator Concetta Fierravanti-Wells, who has Federal responsibilities for mental health, for attending the forum. A number of organisations also attended, particularly those that look after youth accommodation across the Penrith and Nepean regions. The link between mental health and youth homelessness came through clearly in our discussions. A number of organisations operate with Youth Accommodation Interagency Nepean. Tomorrow I am attending a meeting of that organisation to hear more about youth homelessness across western Sydney.

A leading advocate on youth homelessness is the Nepean Youth Accommodation Service [NYAS]. David Keegan, who is the chairman of that organisation, was at Monday's mental health forum and raised a number of issues. In its 2010 annual report the Nepean Youth Accommodation Service spoke about accommodating 395 young people and families from a total of 607 inquiries. However, for that service the biggest demand is for the crisis youth refuge, which accommodated only 89 young people from more than 316 inquiries across the Nepean region. Youth homelessness continues to be a major challenge, particularly in the Penrith electorate, where rental accommodation is extremely scarce. This pushes many people into homelessness because they are unable to get into any form of shared accommodation.

Some of the things that the Nepean Youth Accommodation Service has achieved over the past year and some of the programs it runs include a supported independent living program for young people who are leaving State care. This group of young people is one of the most disadvantaged in our community. Research shows that these young people often end up suffering from chronic mental health, drug abuse problems and homelessness. One by one, we are facilitating the successful transition to young adulthood through holistic case management, which includes education support and employment outcomes. Other areas where the Nepean Youth Accommodation Service has been able to work is targeting vulnerable teenage mothers and young families. It works with approximately 30 young families on any given day to support them when they face homelessness or rental crisis.

The Nepean Youth Accommodation Service responds to the challenge with a strong sense of enthusiasm, and is also working towards developing a head lease program, which is proving to be successful as an important strategy for keeping families together. Another fantastic initiative on which the Nepean Youth Accommodation Service has embarked is the Nepean Youth College, which is run from the Penrith Police and Community Citizens Youth Club. The college offers a second chance to young people who have dropped out of school. It is interesting that this bill targets that group of people who often leave school at an age when they might fall through the cracks. The college will enable those who have dropped out of school to undertake a program for their year 10 study or other accredited courses through TAFE.

More than ever we see that attaining a positive education outcome is linked to solving homelessness. Giving opportunities to people to obtain employment is important in recognising that there is no better welfare than a job. The Nepean Youth Accommodation Service also runs a crisis accommodation program. In respect of one of its individual cases, the service states in its annual report:

        Stephen (17 years old) was accommodated at the youth refuge after spending most of his teenage years in different refuges. Stephen is illiterate, there are indications that he has a mental illness and his teeth are in a very poor condition.

Stephen had a couple of short stays at the refuge, leaving each time without a forwarding address. He was referred to our Dulkara service but did not stay long enough to go through the referral process.

He is that one person for whom we need to work just that little bit harder to see whether we can offer support. The Nepean Youth Accommodation Service is achieving excellent results. Across its client base, 21 per cent of its clients have found independent housing, 18 per cent have found their way into supported accommodation, 13 per cent have been returned to their families, 21 per cent have graduated from programs and only 8 per cent are falling into an unknown category, with 16 per cent going into other services. It is important to acknowledge the governance of the Nepean Youth Accommodation Service and the achievements of the board constituted by directors Siegfried Kunze, David Keegan, Michael Rosano, Gary Askwith, Cliff Foley, George Rabie—who is a very strong contributor to the local Penrith community—Carole Kelaher and Ken Buttrum, AM.

The bill that has been introduced by the member for Goulburn is excellent. It goes a long way to overcoming shortcomings that may have come about as a result of a change in the age at which students may leave school. I commend the member for Goulburn for introducing the bill. I commend the bill to the House.

Dr ANDREW McDONALD (Macquarie Fields—Parliamentary Secretary) [4.40 p.m.]: I lead for the Government in debate on the Children and Young Persons (Care and Protection) Amendment (Homelessness Reporting Age) Bill 2010, which proposes to amend the Children and Young Persons (Care and Protection) Act 1998. On behalf of the Minister for Community Services, the Hon. Linda Burney, who is responsible for law and policy that is aimed at protecting each and every one of our children and our young people, I state for the record that the Minister takes a deep and personal interest in any issue affecting child protection in the State, including the impact of homelessness on young people.

The bill has been introduced as a private member's bill by the Opposition spokesperson, and the Minister thanks her for drawing attention to this most difficult issue. At some point many members are likely to come face to face with this issue in their own electorates. For some others, such as me, it is likely to be a frequent and at times a constant problem. However, all members would be aware that supporting young people who face multiple challenges and risks, which may include homelessness, is one of the most fraught areas of child protection. Very relevant to this debate is the fact that in addition to any one or more of the factors placing a young person at risk, young people are also likely to be struggling to understand and define themselves in relation to their environment and the world in which they live. Young people are more likely than younger children to understand the relationships between the challenges they face, their circumstances, those of their family and the people whose responsibility it is to care for them and keep them safe.

It is clear—and certainly the Opposition spokesperson attempted to set out some of these issues in her agreement in principle speech—that the myriad issues that may result in young people leaving home and remaining homeless for an extended period are many and complex. Without a doubt, family conflict, when it is present, is likely to be a trigger. Certainly abuse, neglect, violence, and mental illness affecting either the young person or their parent or guardian may also be a factor; so too poverty, social disadvantage, isolation and unemployment. All have the potential to heighten tensions within families and that may lead to a young person needing or feeling that they have no choice but to leave their home. There are no quick fixes to this issue. When I was a member of the Child Death Review Team, the team examined the mortality rates of children who are of a higher risk, and the words "enduring difficulty" come to mind—and that is a term applied in the reports.

During this debate, it is worth considering the intention of compulsory school attendance amendments to the Education Act that commenced in January this year. It is the implementation of those amendments that has spurred the Opposition spokesperson to, in turn, seek amendment of the child protection legislation. The Act does not set out to penalise parents who are trying their best to ensure that their child or young person satisfies a certain level of school attendance, nor the parents of a child who is living independently, The Act explicitly makes this a defence to prosecution. The Act seeks to address the issue of parents who are simply not prepared to make the effort. Whatever aspersions the Opposition spokesperson might wish to level at the Minister for Community Services regarding the Minister's responsibility for the parenting of many of the young people under her control, not caring—that is, failing to engage with, constantly seek and direct every resource available towards supporting young people, especially those in her care—should not be one of them.

The amendments to the care Act proposed by the Opposition spokesperson have a number of problems. I will address each in turn. First, the proposal flies in the face of the recommendation of the special commission of inquiry that statutory child protection services should focus on children and young people who are at risk of significant harm. That cannot be emphasised strongly enough. If a homeless young person is thought to be at risk of significant harm, the matter should be immediately directed to the helpline. However, forcing a statutory response, when there are no other risk issues and the young person does not want Community Services involved, is inappropriate, inefficient and almost certainly will be ineffective. What is certain is that such a response would place greater pressure on the statutory child protection system. It would mean both an increase in reports coming through the helpline and an increase in reports going out to the field, thereby affecting community service centres and particularly the crisis response team that is responsible for after-hours matters. They are the very outcomes that the special commission of inquiry found needed correction and which the Keep Them Safe reforms have been correcting. This bill would undo that work.

The second and even more persuasive case against this bill focuses on the related issues of participation and consent by young people in decision-making about their lives. It is assumed that children and young people have the right to participate in decision-making about their lives in the context of the New South Wales child protection legislation. In the care Act, this right is enshrined in section 10, which outlines the principle of participation by the child or young person. Beyond the right to participation is that young people in particular should, and do, have both the ability and the right to consent to many of the actions that affect their lives. This is supported by longstanding child development research findings and accepted at law. For example, it is widely accepted that a child, and certainly a young person, may independently consent to medical treatment. This legal principle, which is enshrined in the High Court case re Marion, affirms that when a child or young person sufficiently understands what is being proposed, they are capable of giving informed consent to medical intervention. The care Act also recognises that principle in section 121. It is one of the sections that the bill seeks to amend.

Section 121 of the care Act facilitates the reporting of a young person, which is defined as a person between the ages of 16 and 18 years, who is homeless but only with the consent of that young person. Acting on a report involving a young person who is unwilling to participate is, quite frankly, pointless and indeed is likely only to further isolate that person from support services and those who may be able to assist them in the medium to longer term. Those who are in touch with young people understand that participation is the crucial element to successful engagement with all young people, particularly those who have neither the immediate nor the ongoing support of their family. Participation and consent are vital components in developing trusting relationships with services and the workers who are seeking to engage with and support the young person. It is those relationships that in the longer term will lead to improved engagement and better outcomes for the young person, including locating and maintaining suitable housing.

This Government is more than aware of the devastating impact that homelessness can have on anyone, but particularly on the life of a young person. Young people constitute the largest group among all homeless people. Given their age, life experience, life skills and lack of resources, that is hardly surprising. Through specialist homelessness services, the State and Commonwealth governments fund services for people who otherwise would be living on the streets. In New South Wales, 150 of those services are targeted to young people. Together with youth support services, family counselling services, specific services for young offenders, youth drug and alcohol services, and support services for victims of abuse, the Government seeks to be able to offer the range of services that a young person who is vulnerable and homeless might need to access.

While doing our best to support young people who enter homelessness services, New South Wales also has a strong early intervention strategy to ensure that as many young people as possible receive help before they become homeless or before they become entrenched in the cycle of homelessness. The New South Wales Government's Keep Them Safe action plan to improve child wellbeing has a number of actions that improve services for vulnerable young people and aim to prevent the disengagement from family and community that leads to homelessness. Under Keep Them Safe, the Government has committed to examining the current evidence base and establishing an early intervention program for children and young people aged nine to 15 years.

A business case is currently being considered for the trial of a Vulnerable 9 to 15s Early Intervention Services model. The purpose of this project is to establish a time-limited trial of the service model in three sites across the State. The trial will be evaluated to determine the effectiveness of the model and enrich the evidence base about effective integrated early intervention programs for this age group. This trial model will target nine- to 15-year-olds who are at risk of continuing disengagement from family, friends, school or their community They may be at risk of entering or escalating in the child protection or juvenile justice system. Priority access will be given to Aboriginal children and their families. Homeless young people who still have a viable connection with their families will be eligible for the program.

More broadly, the South West Sydney Youth Hub, funded by NSW Housing and operated by Mission Australia, integrates social housing with education and job-readiness support for young people who are at risk of homelessness. The youth hub also provides links with drug and alcohol assistance, counselling and life skills development. Other New South Wales Government initiatives assist children and young people who are homeless and include specialist services to help young people reconnect with the community. For example, the Illawarra Youth Homelessness project is a Foyer-type program that provides accommodation and support services for young people with low-level support needs. Support includes assessment, referral, training in living skills, and help with education, training and employment.

The Nepean Youth Homelessness Service provides housing and intensive case management for high-risk young people from 12 to 25 years who are homeless or at risk of homelessness. Young people who engage with this service are assisted to access accommodation and services through an interagency coordination group that will case manage their support for up to 16 weeks. Under an accord framework, Housing NSW provides some tenancies for homeless young people with high and complex needs. As I noted earlier, youth homelessness is one of the most difficult issues faced by Community Services. It is rare that a young person finds themselves homeless because of a single contributing factor. And so our response needs to be sophisticated. The strategies I have outlined reflect this and, I believe, demonstrate a commitment to an holistic approach to supporting young people who are homeless.

More than anything else, though, the response needs to be respectful of the young person's developing autonomy. I know the amendment before the House would seem to entirely dismiss this idea; but to help young people grow in maturity and take their place in society as adults, they must be taught to make their own decisions. However, as a community and as elected representatives we still have the clear responsibility to care for them, provide for them, protect them and guide them. We need to make available the support services they need to heal and develop. But this will only happen and it will only be successful if young people choose this path. If I have learned one thing from 30 years of paediatrics it is that at this age, unless there is buy-in from the affected adolescent, it does not work. In a nutshell it is this simple: when it comes to supporting homeless young people, coercion will not and does not work.

To think that removing consent requirements for 16- and 17-year-olds before reporting them to child protection services will make all the difference, or indeed any difference, to the outcomes for these young people is naive at best and destructive at worst. The Government rejects the amendments to the care Act proposed in this bill. They undermine the direction of child protection services in light of the special commission of inquiry, they undermine the participatory rights of young people who come into contact with the child protection system, and they undermine the right of a young person to consent to being drawn into the system, without other factors that place that young person at risk of significant harm. The Government will not support the amendments.

Mr GEOFF PROVEST (Tweed) [4.54 p.m.]: The private member's bill of the shadow Minister for Community Services makes important amendments to the Children and Young Persons (Care and Protection) Act 1998. The purpose of this bill is to amend the Children and Young Persons (Care and Protection) Act 1998 to make provision for the annual reporting to Parliament by Community Services of all deaths of children known to the department. It will also require a change to the legislation to include children who are currently excluded due to the change in the definition of "known to Community Services".

In her agreement in principle speech the shadow Minister referred to several pertinent Acts and said that the changes left homeless young people in terrible limbo because of the link between the school-leaving age and the responsibilities of parents and guardians, including the Minister for Community Services in the role of a guardian, and the importance of a stable home for young people. There is some background to this legislation. Prior to the Wood special commission of inquiry the definition of "known to Community Services" included children and their siblings who had been reported to Community Services in the three years prior to their death. The definition also included children's deaths where the cases had not met the threshold for assessment and Community Services was not involved with the family in the long term.

The legislation is important, and the Government's response to the issue is disappointing. I have a special interest in homelessness, particularly in the Tweed. The latest census report shows that 184 people are living on the streets of the Tweed, many of whom are young people. I have been working with a number of aid agencies, and I support those aid agencies, such as the St Josephs Youth Service. John Storey has been a dedicated worker over many, many years. The service does a great job, and it has turned around the lives of many young people. John Lee from the Make a Friend Association goes out on the streets and feeds many young homeless people and offers guidance. Unfortunately the success of the association is limited due to the lack of facilities. It is fine for the Government to say that there has been a record amount of funding, programs and so on.

I acknowledge those good programs. I have had a meeting with Father Chris Riley of Youth Off the Streets. I applaud his great work. I also honour the commitment and great work of the previous Minister for Juvenile Justice. It is disappointing that we have not been able to get a project in the Tweed called Square One, which offers emergency accommodation for youth, and facilities for guidance and early intervention. I have made a number of submissions to various Ministers; unfortunately the Ministers keep changing. It is frustrating when one goes back and sees the pain and suffering. This issue goes beyond politics. I have been out on the streets. I think my turning point was about two years ago when aid workers and I found two young girls under the age of 12 years who had been living in a tent for a month.

At 3.00 a.m. I walked away and thought, "We've got to be able to do better." We have heard a lot of rhetoric from the Federal and New South Wales governments about extra funding and so on. Recently I had a meeting with senior staff of NSW Housing. In terms of funding for homelessness on the North Coast, $4.5 million will be applied between Port Macquarie and the border. That is disappointing because we are talking about kids who are the future of Australia. We could make a difference. Tweed Heads, where it is estimated that about 80 young people live on the streets, will get two workers who will assist in finding some form of accommodation for them. Last year alone we spent $600,000 through the Department of Housing on emergency accommodation.

On the other side of the coin we have only 30 Department of Community Services officers and last year alone 2,300 category two cases were reported in the electorate of the Tweed, which has one of the highest incidences of child neglect, abuse and homelessness among young people. This is way beyond politics: it is about talking to people at the grassroots level. The Government rejects this bill and we keep moving amendments. People need to get out there and see the people on the street. I have not given up on Square One, which is a great proposal. It is the result of government agencies such as St Joseph's Youth Service, On Track and the Family Centre, all of which work at the coalface, forming a collective. We can pass differing legislation but once funding trickles down through the bureaucratic nightmare not much of it ends up on the street.

Some $4.5 million has been allocated to deal with youth homelessness from Port Macquarie to the border, yet all the Tweed gets is two extra workers. It is not good enough. These young people deserve our help and our support. I speak to a lot of young homeless people on the street, some of whom are suffering and continue to suffer sexual, physical or verbal abuse when they go home. I know of one 13-year-old girl whose mother gives her $100 on Friday and tells her to come back on Monday because the mother's boyfriend does not like her. What type of mother is that? The girl is keen, but just needs a friend and some support. There is nothing in the Tweed for the youth—no emergency accommodation. A few non-government organisations do a fabulous job and I support them, but they are desperate. They have to rely on using volunteers.

Recently John Lees organised a number of students to sleep out overnight to highlight homelessness. He is frustrated by the lack of funding and services. I am led to believe that in the past month two young women in the Tweed committed suicide because of the hopelessness of their situation. It is fairly trying for my electorate staff to have to deal with young mothers who have been sleeping in cars for many months. There is nowhere for them to go. They can get access to Department of Housing emergency accommodation, but that lasts for only 28 days. What happens after that? They are back in their cars. Predators are out on the street. It is a travesty that decent resources are not allocated to the homeless.

While I acknowledge the parliamentary process in relation to debate on these bills, the real issue is not what occurs in this place or who scores political points; it is about putting serious resources out on the streets to turn the lives of young people around. I was lucky to have a mum and a dad, a nice warm bed to sleep in, meals and clothing, but these kids have nothing. The Government has not supplied them with any resources. The not-for-profit organisations have to beg for free food from Woolworths. I congratulate Woolworths on providing food for the homeless. If John Lees, John Storey, On Track, and the Family Centre were not out there the kids would starve.

The number of young homeless children on the streets in the Tweed is increasing. Unfortunately, the Tweed has the highest percentage of unemployment among young people in the State. It is a travesty that we do not do more to look after these young people. They are at risk. Young girls and young boys are being raped on our streets. Earlier this year the large number of gangs and the high level of youth violence, as well as the lack of government resources in the Tweed, were highlighted on Stateline and Today Tonight. I have been talking about Square One for two years in this place. I have mentioned it probably 30 times. I have approached countless Ministers. I have been hurt personally because of the $4.5 million the Tweed will get only two extra officers. It will get no more money for other resources or emergency accommodation—nothing! Zero! Zilch!

How can I look a 12, 14, or 15-year-old girl or boy in the eye and say, "I'd really like to help you, but I can't. I have nothing"? About 1½ years ago a father came into my office with three young children under the age 15. He abandoned them at 4.30 on a Friday afternoon. He said, "I can't keep these kids any more. I'll probably do them physical harm", and he left. Those young kids had been sleeping in a tent at the back of a showground at Mullumbimby. They were devastated that their natural father walked out and abandoned them. I know a lot of our Department of Community Services workers in the Tweed. They are hardworking men and women who fulfil a role that I certainly could not. I do not think I am emotionally strong enough to deal with the misery they see. However, they responded quickly and the three children abandoned in my electorate office were returned to their natural mother.

I applaud the efforts made in Nepean, Penrith and the central business district, but further out, particularly in regional New South Wales, no government resources are being applied to youth homelessness. The Tweed got two extra workers out of $4.5 million, yet up to 80 kids are on the street in the Tweed. A lot of stakeholders in Square One are not government associations but local businesses, schools and organisations. A clear way to resolve homelessness is for the community to take control. I hope the Government reconsiders its position because youth homelessness is tangible, but at the moment it is not being given priority or resources. Any money that is spent on early intervention will save a lot of money and pain in our communities later. As the old saying goes, "You reap what you sow." I see a lost generation who will get into trouble as a result of antisocial behaviour. It behoves us on both sides of this Chamber to do all we possibly can to look after the homeless.

Mr MATTHEW MORRIS (Charlestown—Parliamentary Secretary) [5.07 p.m.]: I speak to the Children and Young Persons (Care and Protection) Amendment (Homelessness Reporting Age) Bill 2010, introduced by the member for Goulburn. The legislative effect of this bill is that 16- and 17-year-olds who are homeless can be reported to the State child protection agency without the young persons' consent. The member for Goulburn and Opposition spokesperson for Community Services introduced this bill because she is concerned that New South Wales has legislation in place requiring parents to ensure that children and young people up to 17 years of age attend a government or registered non-government school, or participate full time in an approved education or training program and/or paid work.

Under section 23 of the Education Act 1990, failing to do this is an offence, carrying a penalty of between $2,750 and $11,000. I have read and re-read the agreement in principle speech, yet I remain at a loss as to how the proposed amendment is likely to address the member's concerns. The bill is particularly worrying because the proposal demonstrates a clear failure to understand young people and how government and support services can effectively work with them to keep them safe and support them into adulthood. As anyone who understands young people will know, the one strategy that will fail every time is coercion. At this time in their lives nothing is more important to young people than their emerging capacity to make their own decisions. This is what growing up is all about. Young people have the right to express opinions on those things that directly affect their lives, to be involved in decision-making when the outcomes affect their lives, and to consent—when they have the capacity to do so—to actions that will affect their lives.

Reporting young people who are homeless without their consent is flawed in both law and in practice. Section 10 of the Children and Young Persons (Care and Protection) Act 1998 sets out the principle of participation when working with children and young people and making decisions under the Act. It emphasises the need to provide the child or young person with information, to provide the child or young person with an opportunity to express their views, and to be advised how their views may be taken into account in any decision-making. This is also reflected in section 121 of the Act, which recognises the rights of young people to freedom of expression, privacy and participation by requiring the consent of a young person who is homeless before a report is made to Community Services. That is the legal problem, but the practical problem is even more compelling. It is simply not possible to work with a young person who refuses to engage. No program or support service will be effective unless the young person consents to participation, and indeed unless some part of them wants to be helped. This is the heartbreaking and frustrating part of working with young people. If we do not recognise this, we set ourselves up to fail. But, more importantly, we set the young person up to fail either in the immediate or the longer term.

The concerns I have raised I know are shared by many. Importantly, they have also been identified by the Legislation Review Committee. The committee reported on the bill on 8 November 2010. The report raises concerns that the proposal may be in conflict with article 12 (1) of the United Nations Convention on the Rights of the Child and may undermine article 16. Article 12 (1) relates to the privacy rights of a young person and article 16 relates to their right to express their views freely. In considering these possible infringements on the rights of young people and balancing those rights against the State's responsibility for their care and protection, the committee has referred the question of whether the amendment may constitute undue trespass on the rights of young people for Parliament's consideration. Those concerns, together with the fact that this proposal will in practice undermine services engagement with vulnerable young people, leave me with no option but to oppose the bill.

There is no doubt that more needs to be done to support young people who are homeless. More often than not, the issues they face are many and complex. As a Government, we need to ensure that young people are able to access the range of services they need at any one point in time. This of course includes education and training as part of a holistic, inclusive response to the needs of the young person. Most importantly, we need to work in partnership with young people. Only with their consent will we be able to help them achieve the very best outcomes for their lives. The problem with the bill is that it undermines the autonomy of young people and, more tragically, it will not work. Some members have illustrated cases that are pertinent to their electorates—and I could certainly do similar—but it is very clear that the challenge is, and I guess always will be, engaging young people, planting the seeds of ideas, and helping them to make good decisions that will assist them immediately and in the future in terms of where their lives go, and how they participate in and become part of our community. We all have an obligation to reach out and support those in need, particularly young people. They are our future; it is an investment. We have an obligation at all times to be there to support those in need.

Mr ROB STOKES (Pittwater) [5.14 p.m.]: The New South Wales Liberals and The Nationals support the Children and Young Persons (Care and Protection) Amendment (Homelessness Reporting Age) Bill 2010. We think it is a sensible bill that introduces consistency into the treatment of young people in relation to the reporting of homelessness, bringing it into line with what is now the school leaving age. I noted with interest some of the comments by the member for Charlestown. He talked about the right that young people have to aspire to individual freedom and to explore approaching adulthood, and I agree that those things are important. But so is the right to have a roof over your head and the right to food—the basic human rights that we all rely on to survive. We do not believe that any notion of a young person's personal privacy should trump their rights to a place to live and food to eat, and that is what this bill fundamentally seeks to address.

The object of the bill is to amend the Children and Young Persons (Care and Protection) Act 1998 to increase to 17 years the age at which the Department of Community Services is required to investigate claims of homelessness and consider providing services and accommodation, thus aligning the reporting of child and youth homelessness with the new school leaving age. Currently, if a child under 16 years of age becomes homeless, a person may report this to the Department of Community Services and the department is obliged to investigate that report. However, a person may only report a homeless young person over the age of 16—that is, still at school in year 11 or completing the higher school certificate or in full-time training—with the young person's permission. Moreover, the Department of Community Services is not obliged to conduct an investigation and need not provide services for homeless young people as it does for children defined as being under the age of 16. A child is a child. A young person under the age of 18 is still a child, and he or she deserves the support and the protection of our society.

I support the legislation because I believe it tidies up the existing legislation and brings it in line with legislative changes passed by the House last year—namely, the Education Amendment (School Attendance) Bill 2009 and the Education Amendment Bill 2009. Those legislative changes provided that before being eligible to leave school a child must have attained the age of 17 years or have completed year 10 of secondary education, whichever occurs first, and aim to ensure that children of compulsory school age attend school or full-time training. With these changes in mind, it appears entirely appropriate that if a child is required to attend school or full-time training until at least the age of 17 years, then legislation that attempts to ensure their protection and wellbeing should not cease at 16 years of age. The bill will ensure that if the Department of Community Services becomes aware of a homeless young person between the ages of 16 and 17, and they are required to be at school, the department must investigate and provide services, including accommodation, where appropriate.

My immediate observation when looking through this brief bill is that it is incredibly important for schools to help students in their care who are encountering personal hardship, including homelessness. The current problem is that if a child at school has attained the age of 16 years, teachers, principals and staff are unable to step in and seek help and support for that child unless the child gives their consent to do so. This is an issue that I believe needs addressing. In light of this, I acknowledge the efforts of the shadow Minister for Community Services, the member for Goulburn, in identifying this issue and bringing it to the attention of the House. Her passion and interest in seeking to improve the lives of those members of our community in greatest need is admirable, and her commitment should be recognised.

One of the most effective things we can do in this place is introduce legislation that assists our society's most vulnerable, and I congratulate the shadow Minister on doing so. It is commonsense legislation that aims to address an increasing concern in all areas of New South Wales. The reality is that no community is immune to youth homelessness. It is an issue that is not spoken about enough and the extent of the problem is, by most accounts, unknown and only speculative. It is non-discriminatory. It is not defined by socioeconomic background, family structure or location. In my area of Pittwater one aspect of youth homelessness is children being left without parental care—they may have somewhere to live but their parents do not support them on a daily basis.

Recently the minister at one of my local churches in Pittwater found a bunch of 14-year-old boys living in a space under the church. They had been living there for some time. This is happening everywhere—it is happening in all members' communities. I conclude by mentioning some wonderful people in my community who are doing great work in relation to the care of young people. Tony Bates is doing great work with Point Zero, which has been set up on the northern beaches with volunteer workers. I note that at the Pittwater Business Limited breakfast on Wednesday morning local businesses banded together to support the wonderful work of Point Zero. I also mention Mike Kewley, who is a youth worker in my community and a strong advocate for the need for better accommodation options for homeless youth on the northern beaches. Finally, the Legislation Review Committee suggested the bill might somehow undermine Article 16 of the United Nations Convention on the Rights of the Child in relation to the privacy rights of young people aged 16 years. I reiterate that privacy is an important right, but so is having a roof over your head and food to eat. I note in that respect that Article 20 of the same convention states:

        A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State.


It is important that we provide the assistance required by the United Nations Convention on the Rights of the Child, and this bill does that. Ms PRU GOWARD (Goulburn) [5.21 p.m.], in reply: I express my deep disappointment that the Minister for Community Services has not seen fit to be here. That is a terrible mark against her. It is all very well to send the member for Macquarie Fields into the Chamber to read a speech that has presumably been written in the department, but this is an issue of such import to the Australian community—increasingly youth homelessness is the pathway into crime and to another generation of extraordinary disadvantage—that one would think the Minister, even in the dying days of this Government, might have been interested in making some comments about it. The Children and Young Persons (Care and Protection) Amendment (Homelessness Reporting Age) Bill 2010 is very simple and, as a number of members have pointed out, is essentially in two parts. The first requires the director general to act on reports of homelessness involving children who are 16 years and older. At the moment the department is not required to do that. Secondly, the reports can be made without the consent of the young person concerned. It is my view—and I suspect if we went back through Hansard over the years it would be confirmed—that the age of 16 was specified originally because that was the age at which a kid could reasonably be expected to leave school and get a job. If they were "homeless" and supporting themselves it was really nobody else's business but theirs. They were able to function and they had a reasonable opportunity to be economically self-sufficient. But, as we know now, with compulsory education to the age of 17 that capacity no longer exists for a person between the ages of 16 and 17 years. The bill does not say that the young person has to compulsorily enter housing provided by the department. The bill merely says that the report may be made to the department without the consent of the young person. As many members have already noted, at this age we have to engage with young people quite differently from the way we engage with 8- and 10-year-olds. It is much more about negotiation and gaining their trust and consent. I would have thought that would apply as much to a child of 15 years and 9 months as it does to a child of 16 years and 9 months. When you are working with young people under the age of 16 for whom consent, under the existing law, is not required, you effectively have to negotiate in order to get that young person into the services they need because they can get out the window or they can go and sleep at a friend's place. They can "take off", as we say. It is an absolute nonsense and a disappointing piece of sophistry that the Government should decide not to support the bill because of the issue of consent, when we know that from the age of about 12 the same conditions apply: we are dealing with young people with whom negotiation, trust building and relationship building is very important if they are going to cooperate with an agency or the Government's proposals for their future wellbeing. I think the Government's argument is just a piece of sophistry and an excuse to oppose the bill. The reason the Government is so anxious to oppose a bill that brings the Act into consistency with the new school leaving age is the terrible shortage of services for kids in this age group. We know how few youth shelters there are and we know how few support services there are either in those youth services or in agencies aligned to youth homelessness. The Bowral youth service, for example, comprises a youth shelter that basically runs on the smell of an oily rag and a lot of donations from people such as the Springetts. But it is closed between 9.00 a.m. and 3.00 p.m. when kids are supposed to be at school. We all know they are not, but the shelter cannot afford to run a day program for those kids during school hours. They are expected to go to school—as they now will be up to the age of 17—but they can do what they like. They do what they like because there is no-one to build a relationship and work with those kids during the day and encourage them to go back to school or find a training course that would be suitable for them, and to address the trauma. We are inevitably talking about kids with post-traumatic stress disorder for whom going to school is clearly a bridge too far and something they are not able to manage. The Government's decision to oppose this bill is a shocking excuse. It does not want any further spotlight on the appalling lack of services for teenagers and the fact that there is a growing crisis in the number of teenagers hanging out on the streets, prostituting themselves, going in and out of other people's houses, and sleeping in bus shelters, and in the very small amount of accommodation that is provided for them. There are no backup services. As the member for Tweed noted—and as all members representing coastal electorates know—teenagers often sleep on the beach, which is why they are in those members' electorates. I commend the bill to the House.

Question—That this bill be now agreed to in principle—put. The House divided.

Ayes, 37
Mr Aplin
Mr Ayres
Mr Baird
Mr Baumann
Ms Berejiklian
Mr Besseling
Mr Cansdell
Mr Constance
Mr Dominello
Mr Draper
Mrs Fardell
Mr Fraser
Ms Goward
Mrs Hancock
Mr Hartcher
Mr Hazzard
Ms Hodgkinson
Mr Humphries
Mr Merton
Mr O'Dea
Mr O'Farrell
Mr Page
Mr Piccoli
Mr Piper
Mr Provest
Mr Richardson
Mr Roberts
Mrs Skinner
Mr Smith
Mr Souris
Mr Stokes
Mr J. H. Turner
Mr R. W. Turner
Mr J. D. Williams
Mr R. C. Williams

Tellers,
Mr George
Mr Maguire

Noes, 47
Mr Amery
Ms Andrews
Mr Aquilina
Ms Beamer
Mr Borger
Mr Brown
Ms Burney
Ms Burton
Mr Campbell
Mr Collier
Mr Coombs
Mr Corrigan
Mr Costa
Mr Daley
Ms D'Amore
Ms Firth
Ms Gadiel
Mr Gibson
Mr Greene
Mr Harris
Ms Hay
Mr Hickey
Ms Hornery
Mr Khoshaba
Mr Koperberg
Mr Lalich
Mr Lynch
Mr McBride
Dr McDonald
Ms McKay
Mr McLeay
Ms McMahon
Ms Megarrity
Mr Morris
Mr Pearce
Mrs Perry
Mr Rees
Mr Sartor
Mr Shearan
Mr Stewart
Ms Tebbutt
Mr Terenzini
Mr Tripodi
Mr West
Mr Whan
Tellers,
Mr Ashton
Mr Martin


Question resolved in the negative.

Motion negatived.

Bill not agreed to in principle.  (Source : http://www.parliament.nsw.gov.au/prod/parlment/hansart.nsf/V3Key/LA20101202043?open&refNavID=HA8_1)

New Queensland Child protection legislation receives assent

The Child Protection Reform Amendment Bill 2017 (the Bill) which was initially introduced into the Queensland House of Assembly on 9 August 2017, by the Hon Shannon Fentiman MP (Member for Waterford), has now received Assent [enacted as the Child Protection Reform Amendment Act 2017, Act No 44 of 2017] with the Act commencing on 10 November 2017.

Background

According to the Bill’s Summary, the objectives will be to:

  • promote positive long-term outcomes for children in the child protection system through timely decision making and decisive action towards either reunification with family or alternative long-term care;
  • promote the safe care and connection of Aboriginal and Torres Strait Islander children with their families, communities and cultures;
  • provide a contemporary information sharing regime for the child protection and family support system, which is focused on children’s safety and well-being; and
  • support the implementation of other key reforms under the Supporting Families Changing Futures program (the reform program) and address identified legislative issues.

"Adoption Amendment (Same Sex Couples) Bill 2010 (No. 2)"

Page: 25617
Consideration in Detail

Consideration of the Legislative Council amendments.

Schedule of amendments referred to in message of 8 September 2010.

 

        No. 1 Page 3, schedule 1. Insert after line 9:


[2] Section 45A

              Insert after section 45:

45ABackground information about prospective adoptive parents to be made available to birth parents

                  (1) If an application to adopt a child is made by a couple, background information relating to the couple that is obtained by the Director-General or principal officer in connection with the application is, at the request of the birth parents of the child, to be provided to the birth parents before any adoption order may be made in relation to that child.

(2) In this section, background information relating to a couple includes information about the couple's social and cultural background, religious beliefs, domestic relationship and living arrangements, but does not include any information that identifies the couple.

        No. 2 Page 5, schedule 2.1, line 6. Omit "Nothing in this Act affects any policy or practice of an organisation or person providing adoption services". Insert instead "Nothing in Part 3A or 4C affects any policy or practice of a faith-based organisation concerning the provision of adoption services".

No. 3 Page 5, schedule 2.1. Insert after line 15:

                  (3) In this section,

faith-based organisation

                  means an organisation that is established or controlled by a religious organisation and that is accredited under the

Adoption Act 2000

                to provide adoption services.

The DEPUTY-SPEAKER: Order! With the leave of the House I propose to deal with Legislative Council amendment No. 1 separately and amendments Nos 2 and 3 together.

Ms CLOVER MOORE (Sydney) [3.30 p.m.]: I move:

        That Legislative Council amendment No. 1 be agreed to.


I stress to the House that we are dealing with amendments to a bill that has passed both this House and the other place, so these amendments seek to amend a bill that has already been approved. We are not voting on the bill now, we are voting on these specific amendments. The first amendment was moved in the upper House by Fred Nile, MLC, and will put into the legislation the current practice of providing relinquishing parents—birth parents—with background information about prospective adoptive parents including information about their cultural and social background, religious beliefs, domestic relationships and living arrangements. I support Legislative Council amendment No 1. Ms KRISTINA KENEALLY (Heffron—Premier, and Minister for Redfern Waterloo) [3.31 p.m.]: I note the comments by the member for Sydney. She is correct. Both Houses of the Parliament have approved this legislation and we are now considering amendments to that legislation. The amendment moved by Reverend the Hon. Fred Nile in the other place confirms what is already happening in the rigorous practice of the adoption process. I am therefore willing to support this amendment.

Mr FRANK SARTOR (Rockdale—Minister for Climate Change and the Environment, and Minister Assisting the Minister for Health (Cancer)) [3.32 p.m.]: I note the amendments carried in the Legislative Council last evening. I believe they were unnecessary but in order to try to resolve the matter I will seek to move a compromise amendment, of which I believe members have a copy. Before doing so I believe I should address some of the comments made, particularly by the Attorney General, in the Legislative Council, because I chose to be concise and brief when I moved my amendment here and I think I am entitled to respond to some of the issues that have been raised. I have much regard for my colleague the Attorney General. I even count him as a friend, which is why I will forgive him for using what I regard as exaggerated language in relation to the amendment I moved and which was carried by this House last week. Learned he and his department may be but the moral values of lawyers are neither superior nor inferior to the values of the rest of us, and this issue is about values, especially the values of the community. I will briefly outline our points of difference.

The Attorney's first assertion was that the amendment carried by this House provided a blanket exemption that would allow adoption providers to discriminate on any ground for any reason, including reasons not related to the best interests of the child. I disagree with this assertion for the following reasons. Any discrimination is constrained by the Adoption Act, which already expresses 19 principles and matters to be considered in making an adoption decision. The interests of the child remain paramount in the Adoption Act. The adoption authority, after all, is with the Supreme Court of New South Wales. The second assertion was that it derogates the important principle underlying the Adoption Act that decisions must be made in the best interests of the child. In my view removing the restriction of the Anti-Discrimination Act on the process of selecting suitable adoptive parents makes the pursuit of the best interests of the child more rather than less likely.

The third claim is that a future director general could remove the delegation to non-government service providers and institute guidelines that permitted discrimination or could be directed by a future Minister to introduce discriminatory practices in relation to adoption. I find this quite implausible, even if it is theoretically possible. I understand where the Attorney is coming from, but I find it implausible. It seems to me we would have to have a director general at some time in the future who lost the plot. We would then have to have a deranged Minister who chose to start discriminating against people for heaven knows what motivation.

Then, of course, there would have to be an acquiescing Premier, Cabinet and Parliament and a meek and mild media who might in 20 years still be obsessed with attacking the Labor Party rather than focusing on other issues. Of course, the Supreme Court would have to let it happen because it makes adoption decisions and there would have to be a community that just did not worry about it. It seems highly implausible. The community has become more sophisticated and in my view those issues would have resolved themselves given the primacy of the Adoption Act and the principles of that Act.

The fourth claim is that the good work that has been done in relation to anti-discrimination would be undermined. The exemption as currently drafted applies to any policy or procedure, organisation or person providing adoption services regardless of whether the policy is related to the adoption process. Then the Attorney cites employment practices as an example. I would agree with the Attorney General if this were true. The Attorney raised this with me and I consulted Parliamentary Counsel, who assured me the amendment I moved in this House last week did not extend to exemption of employment practices from the Anti-Discrimination Act.

I asked the Attorney General to confer with Parliamentary Counsel, which I believe he did. I also told him that if he remained concerned I was happy to instruct Parliamentary Counsel to amend my amendment to make it even clearer that the Anti-Discrimination Act still applied to employment practices of adoptions service providers. I received no such request, yet the amendment has been criticised on these grounds, which I think is pretty unfair, given that I have no point of difference with the Attorney on this issue. As I said, there is no difference of intent here, nor do I believe there is any difference in effect, but I was happy to accommodate that.

The fifth claim is that exempting adopting agencies from the provisions of the Anti-Discrimination Act does not make the preference or wishes of birth parents any more or less relevant to the assessment of what is in the best interests of the child. I disagree with this and that is why I will move an amendment shortly to address this issue. I believe that the search processes for matching a child with adoptive parents will be influenced by the operation of the Anti-Discrimination Act, which will in some circumstances diminish the likelihood that the wishes of the child's parents are being met. Therefore, I reject the Attorney's conclusion in this regard.

His sixth claim was that the exemption moved by this House may have the effect of diluting the pool of potential adoptive parents and therefore undermine the pursuit of the best interests of the child. While this conclusion has superficial appeal, further examination would reveal it is unlikely either to dilute the pool of prospective parents or undermine the pursuit of the best interests of the child. This is because if an adoption agency is unable to satisfy itself that the pool of prospective parents corresponds to the wishes of the birth parents and finds the situation would not be in the best interests of the child it is free to extend its search. There is nothing in the amendment carried in the Legislative Assembly last week that limits this from occurring. In fact, I think the converse is true.

The seventh claim was that the Adoption Act has regard first and foremost to the best interests of the child and has a secondary duty to the wishes of the birth parents. While the Adoption Act does provide that the foremost consideration must be the best interests of the child, which is why it should be the only Act at play here, it is wrong to say it imposes a secondary duty to meet the wishes of the birth parents. The wishes of the birth parents are merely one of 19 considerations in section 8 of the Adoption Act and it appears to be of low priority.

The final claim made by the Attorney is that all service providers, including the Department of Community Services, may if they so choose discriminate against whomever they wish for whatever reason regardless of what is in the best interests of the child and what the birth parents may or may not want. With respect, I find this to be quite fanciful. The Adoption Act contains a host of its own discriminatory criteria, the paramount one being that adoption must be in the best interests of the child.

I remind members that the custodians of this process are the Attorney General's own colleagues in the Supreme Court of New South Wales. The Attorney General raised issues about which he is concerned and I believe that those issues are quite legitimate. I respect the legal prowess of the Attorney General but I am a bit concerned about the fact that this approach represents unnecessary red tape and the interplay of two Acts when that is unnecessary. I intend to amend the Legislative Council's amendment with a view to establishing whether or not we can arrive at a resolution that addresses most of our concerns. In this regard I note that a reasonable number of members in the upper House—the ratio was 22 to 15—agreed to amend our amendment. I note also that there was a unanimous acceptance of that amendment in this Chamber.

Nevertheless, in the spirit of resolving a conflict between the two Houses, I could achieve 80 per cent of what I sought to achieve through my previous amendment by moving a subsequent amendment. I remind members also, in particular because of the spirited views expressed by the Attorney General in the upper House, that the Western Australian Act was passed some years ago. This provision was put in place some years ago and nothing has been brought to my attention to suggest that there is a major problem. I refer, finally, to the assertion that the amendment that was moved in this House would empower the bureaucracy and disempower the community. I believe the converse to be true. It is really about giving the community more of a say. For the reasons that I have outlined I will move an amendment that involves accepting the amendments moved by Reverend the Hon. Fred Nile and the Attorney General, which are in the sheet of amendments that has been circulated to members.

There are three components to that amendment. By adding a further provision to section 45, that is, section 45B, adoption service providers will have to satisfy the wishes of parents who place their children up for adoption, whether or not they are birth parents, provided it is in the best interests of the child and without having to be concerned about being caught by the Anti-Discrimination Act. That was my main concern and that is what I sought to resolve. I would prefer to remove the red tape and the clutter. However, given the concerns that have been expressed by the Attorney General and others that discriminatory practices might emerge other than the already provided for statutory discrimination in section 8 of the Adoption Act, I will move an amendment, even though I prefer my previous formulation. I move:

      That the Legislative Council amendment be amended as follows:
      Insert at the end of Amendment No. 1 the following matter (for insertion after proposed section 45A):

45B Consideration of wishes of parents consenting to adoption

            (1) A general consent of the parent of a child to the adoption of the child, as referred to in section 53, may express the wishes of the parent as to the preferred background, beliefs or domestic relationship of any prospective adoptive parents of the child.

 

            (2) Nothing in the

Anti-Discrimination Act 1977

          prevents the Director-General or a principal officer of an adoption service provider from identifying (consistently with the best interests of the child) prospective adoptive parents who reflect those wishes in the adoption selection process under this Part.


Members should note that my amendment does not delete the upper House amendments and it does not delete the amendment moved by Reverend the Hon. Fred Nile: it simply adds a further section 45B. It does not delete or touch the Attorney General's provision, which is the faith-based exemption; it simply adds a further provision. As I said, it will achieve a substantial measure of what I sought to achieve, that is, when two parents or one parent has to adopt out a child for reasons that are unavoidable—whether or not they are birth parents is irrelevant—their wishes must be given more weight. If a service provider believes that it can satisfy the best interests of the child and also the wishes of the parents it should seek to do that. If it cannot satisfy the best interests of the child test the search can be broadened.

It might mean, for example, that someone might wish to adopt out a disabled child. It might be that only some people in the community are interested in taking disabled kids. This will enable service providers to target and address that issue. If it ends up in Supreme Court the Supreme Court will have to form the view that it is in the best interests of the child. This amendment will meet a substantial part of what I was concerned about. In the spirit of resolving the matter I have moved my amendment which will simply amend the Legislative Council amendment.

Ms CLOVER MOORE (Sydney) [3.45 p.m.]: We are amending the amendment of Reverend the Hon. Fred Nile, MLC. I believe that this amending amendment describes what is happening in practice. As it does not impact on the intention of my bill, I am happy to accept it.

Mr RICHARD AMERY (Mount Druitt) [3.45 p.m.]: I support the Legislative Council amendment No. 1 and Minister Sartor's amendment to it. As the member for Sydney said, Reverend the Hon. Fred Nile's amendment in the upper House relates to existing practice. However, it recognises the role and the rights of a birth child. Minister Sartor's amendment adds to and clarifies that issue. As this amendment is not contentious I will not be voting against it.

Ms LINDA BURNEY (Canterbury—Minister for the State Plan, and Minister for Community Services) [3.46 p.m.]: I hope that all members are clear on this issue. The member for Sydney reiterated what this Government is doing. The amendment moved in the other place by Reverend the Hon. Fred Nile regarding disclosure of information about adoptive parents to birth parents confirms current adoption practice. Therefore, I have no hesitation in supporting Reverend the Hon. Fred Nile's amendment. Minister Sartor moved a further amendment in an attempt to confirm the right of adoption agencies to identify prospective adoptive parents who reflect the wishes of birth parents as long as the agency does so in the best interests of the child. I am happy to support that amendment. I reiterate that I support Reverend the Hon. Fred Nile's amendment and Minister Sartor's amendment to it.

Ms PRU GOWARD (Goulburn) [3.47 p.m.]: All members agree that Reverend the Hon. Fred Nile's amendment confirms existing practice. I think Minister Sartor's amendment also confirms existing practice. Some members might be uncomfortable with that idea. If we asked most parents, "Who would you like to adopt your child", I am sure they would say, "Somebody incredibly rich and very nice." In practice, I am not sure about the extent to which people can qualify who should adopt their children. In light of the contentious nature of this debate and the argument that fewer people would be willing to put up their children for adoption because of their fear that they might go to families with whom they are not comfortable, I support the amendment moved by Minister Sartor. Question—That the amendment to Legislative Council amendment No. 1 be agreed to—put and resolved in the affirmative.

Amendment to Legislative Council amendment No. 1 agreed to.

Legislative Council amendment No. 1 one as amended agreed to.

The DEPUTY-SPEAKER: The House will now consider Legislative Council amendments Nos 2 and 3. Ms CLOVER MOORE(Sydney) [3.49 p.m.]: I move:

      That the House agree to Legislative Council amendments Nos 1 and 2.


The amendments to my Adoption Amendment (Same Sex Couples) Bill 2010 (No. 2) that were moved by the Attorney General in the other place resolved some concerns relating to the amendments that were included in the bill that was passed by this House during the consideration in detail stage last week. The initial amendment moved by Minister Sartor, the member for Rockdale, introduced a blanket exemption for organisations or persons that provided adoption services from the provisions in the Anti-Discrimination Act. These initial amendments aim to ensure that the anti-discrimination legislation will not interfere with the adoption agencies achieving what is in the best interests of the child. But I believe they go further than what this House intended to support. They enabled all bodies providing adoption agencies, not just faith-based adoption agencies, to discriminate on any ground, including race, age or religion, and to hold a discriminatory policy even if it is not in the best interests of the child and contradicts the wishes of the birth parents.

The initial amendments also allowed adoption agencies to discriminate in any business they undertake, not just in providing adoption services but also in employing staff and using contractors, for example. The Attorney General has moved new amendments Nos 2 and 3 to ensure that only faith-based adoption agencies will be exempt from the Anti-Discrimination Act and that the exemption applies only when agencies provide adoption services. He is clarifying what I believe this House attempted to do. The grounds of discrimination will be delivered to homosexual and transgender discrimination in line with what faith-based adoption agencies have requested. We are doing what the faith-based agencies asked us to do.

Under these amendments the best interests of the child will continue to be paramount in the consideration of adoption agencies over and above any provision in the Anti-Discrimination Act. We are dealing with what is most important in the interests of the child. Relinquishing parents who, I remind the House, do not provide a service and, therefore, are not subject to the provisions of the Anti-Discrimination Act, will continue to have a say on who their child is given to and on issues like marital status, religion and sexuality. I support the amendments and commend them to the House.

Mr RICHARD AMERY (Mount Druitt) [3.51 p.m.]: I oppose the amendments. I understand the member for Epping may move a further amendment to change some words contained in the amendments. This is the crucial issue of the day and perhaps is the reason I am angry about the handling of this particular matter last week. During consideration in detail on this bill last week the Minister, the member for Rockdale, moved an amendment that was supported by everyone in this House albeit somewhat qualified and about which some comments were made. However, on the voices everyone supported the amendment of the member for Rockdale. Why? Because that was the only way the bill, which I opposed, could leave this Chamber. I repeat: the bill left this Chamber only because we accepted an amendment by the member for Rockdale.

Ms Gladys Berejiklian: You did too.

Mr RICHARD AMERY: Yes, I did and then opposed the bill. I am glad you are reading Hansard. The amendment by the member for Rockdale states:

        Nothing in this Act affects any policy or practice of an organisation—


I emphasise the words "of an organisation"—

        or person providing adoption services ...


It then goes on to refer to the Adoption Act et cetera. I believe the member for Rockdale addressed a concern of many members in this place and in the community that this bill, although said mainly to be about the interests of the child, perhaps focused too much on the interests of the adopting parents. Many members have raised that matter and I believe that to be the case. The member for Rockdale moved an amendment that to a certain extent actually removes the Anti-Discrimination Act in the adoption process for any organisation or individual. This House passed that amendment. The member for Rockdale said:

      The amendment removes the Anti-Discrimination Act from the adoption process, except with regard to the rights of children.


He then went on to say:

      The amendment I have moved is similar to an amendment that was carried in Western Australia some years ago and has been in operation since.


He referred to a letter sent to him from CatholicCare in the Wollongong diocese:

        In response to your request for urgent feedback on the proposed amendments I can state the following. In our opinion and from the legal advice received by Anglicare, the Amendments proposed by Frank Sartor are most welcome by faith based agencies.


I have said already that that amendment was a vehicle to get the bill out of this House. That was my opinion of what happened and it was also the opinion of other members. Clover Moore, the member for Sydney, at the end of her comments about the amendment of the member for Rockdale said:

        I understand that the support for my bill by some members relies on this amendment and I will not oppose it.


We realise now from the mover of this bill that the reason the amendment was passed last week was to get the bill through the House and into the Legislative Council—a comment repeated on many occasions. Minister Burney said that the amendment preserved the main objective of the bill. Daryl Maguire, the member for Wagga Wagga, said:

        I believe this amendment further strengthens the bill.


I supported the amendment and then, of course, opposed the final vote on the bill. I will call the Legislative Council amendment the Hatzistergos amendment. What does it do? Not much except insert some crucial words. The Hatzistergos amendment is not significantly different in wording from the amendment of the member for Rockdale. It states:

        No. 1 Page 5, schedule 2.1, line 6. Omit "Nothing in this Act affects any policy or practice of an organisation or person providing adoption services".


They were the critical words in the original amendment. The amendment continued:

        Insert instead "Nothing in Part 3A or 4C affects any policy or practice of a faith-based organisation concerning the provision of adoption services".


That is the subtle difference. This House addressed the issue about whether this bill is about the interests of the child or the parents. Mr Sartor's amendment clearly distanced this process from the anti-discrimination laws. The amendment of Mr Hatzistergos reinstates the Anti-Discrimination Act for all adoption processes except faith-based organisations, which had been addressed already by the Cabinet and the bill. The procedure was all too cute and I do not believe the amendment of Mr Hatzistergos should be supported. I will vote in favour of a foreshadowed motion by the member for Epping to reinstate some aspects of Mr Sartor's original amendment. I hope I have clarified the matter for the House.

Ms PRU GOWARD (Goulburn) [3.57 p.m.]: I support the Hatzistergos amendments for two reasons. The first is that discrimination law works best when the exceptions to it are construed narrowly. That is an absolutely essential part of anti-discrimination law. If we make it possible for a whole industry to be exempt, not just from sections 3A and 4C of the Anti-Discrimination Act, that means every ground of discrimination, which can include age, care responsibilities and many other things—

Mr Richard Amery: That is not in the amendment.

Ms PRU GOWARD: It is. That is exactly what we did last week. This is why this House should not do things in haste, but that is a discussion for another time. There were many months in which to prepare these amendments, but I leave that for now. If we pass the bill in its present form, if we do not accept the Hatzistergos amendments, basically we are sending a green light to any industry—the aged care industry, any industry—that wants to discriminate against any service, client or service provider because we would have now created a great big black hole in the anti-discrimination laws of this State. That would be a disgrace. My first ground for supporting the Hatzistergos amendment is that we must do this to preserve our effective anti-discrimination law, which is reflected in every State and Territory and at Commonwealth level. The second reason I support the Hatzistergos amendments is that I, as do other members in this House, regret that we passed it in haste last week. I regret amending the bill in haste last week in our anxiety to address the concerns of the faith-based agencies. It is a respected and accepted exception to discrimination law that faith-based organisations enjoy certain exemptions.

For example, under Commonwealth law religious faith-based organisations do not have to be equal opportunity employers of priests, much to the relief of the Catholic church and parts of the Anglican church. There are many reasons based on culture and tradition that faith-based organisations have always been entitled to exceptions in anti-discrimination law. In a faith-based country, irrespective of whether the faith is Islamic or Christian, we accept that as a general principle. We accept the role of culture, tradition and religion in this country's make-up. On that basis we are perfectly able to support the exception for faith-based agencies. However, not supporting others is a hugely retrograde step when it comes to anti-discrimination law. If that happens what will be next? There are a number of other industries that would be very happy to line up for a similar exemption.

Ms LINDA BURNEY (Canterbury—Minister for the State Plan, and Minister for Community Services) [4.00 p.m.]: I support the Attorney General's amendments, and my support is very much on the bases outlined by the member for Goulburn. For five years I was a member of the New South Wales Anti-Discrimination Board. I understand very well anti-discrimination laws, the history of those laws, and their significance. The debate of this legislation is very important, but what remains most important is the best interests of children. The most important objective remains the removal of discrimination against children of same-sex couples, by allowing both their parents to adopt them, and the protection of religious freedoms of faith-based organisations.

I have been the Minister for Community Services for 20 months. Along with other members of the House, I am deeply aware that the plight of some children in this State is absolutely desperate—it is beyond the imagination of most ordinary people. Essentially, my motivation throughout all of this is particularly to ensure that foster children who are in loving and stable same-sex families get their chance at absolute stability and proper recognition. Let us not forget the objective of this discussion. It is not about backing ourselves into different camps. It is not about getting cross and voting while being cross. It is about voting for these children. In my view part of that lies very much in supporting the Hon. John Hatzistergos's amendment, as outlined by the member for Goulburn, who knows about these matters in a very real way, to avoid opening up a capacity for further discrimination on any basis in the State. That is why support for the Hon. John Hatzistergos's amendment is so very important.

I urge all members to think about that, to think about how proud we are of our anti-discrimination laws in this State, how hard they were fought for, what they mean for decency and fairness, what they have done to support decency and fairness for many years, and, most importantly, the objective of making sure that we give children the very best chance in life. Rearing children is not about whether or not we are gay. It is about making sure that parenting adults love them, give them stability and give them a chance for a normal life. I urge members to think about those factors and support the Hon. John Hatzistergos's amendment.

Mr GREG SMITH (Epping) [4.04 p.m.]: I move:

      That Legislative Council amendment No. 2 be amended by leaving out "Nothing in part 3A or 4C affects any policy or practice of a faith-based organisation concerning the provision of adoption services" and inserting instead:
        Nothing in part 3A or 4C affects any policy, practice or genuine belief of an organisation or person concerning the provision of adoption services.


Although the issue was not put to a vote, in effect this House unanimously supported the amendment moved by the member for Rockdale, Frank Sartor. The reason is that this bill is a private member's bill, in contradiction of a promise made by the Minister that the Government would not be proceeding with recommendations of the Standing Committee on Law and Justice because of a split in the community. A large number of letters and petitions had been received indicating opposition to same-sex adoption.

The closeness of the two votes taken in this House reflected community concerns and there was no consensus on the issue. As the people's House we were reflecting the attitudes of people in our electorates throughout the State, not just the opinions of those who live in inner-city areas of Sydney. That is why the House acted prudently, in view of almost a majority of members who were against the bill, in accepting the amendment, thereby ensuring protection in the legislation from discrimination. One of the problems with discrimination that could occur, and why my amendment is necessary, is that people who are working for the Department of Community Services, Barnardos and other adoption agencies may well genuinely feel that it is in the best interests of a child to place that child with a married couple or a heterosexual couple because of background reasons. Equally, it may well be that there is a policy or attitude in the department that favours same-sex adoption. That is not so strange.

Many of us have tried to keep that issue out of the debate, but one wonders whether, as a result of some of the heat the issue gathered in caucus, it really is out of the debate. Some members, including the Minister for Education and Training, have a list of all the advantages that the Government and its predecessors, the Wran and Unsworth governments, achieved for same-sex couples. What does that have to do with adoption? Everyone said, "Oh, no, that has nothing to do with adoption. We are looking at the best interest of children." The reason I moved the amendment is that I believe the Hon. John Hatzistergos's amendment is just too narrow. He has taken out what we were after. He has removed anti-discrimination provisions that ensured relinquishing mothers and their husband or partner had a good say in what happened to their child because they love that child and do not want that child to go into a lifestyle that their family would not accept and that they would not accept.

All the members of this House are part of a family. All of us had a mother and a father: we are too old for IVF to have generated any of us. Most of us loved our mother and father, and most of them loved us. Why should employees of the Department of Community Services and Barnardos not be allowed to take into account that there are a lot of people who allow their child to be adopted but who want to make sure that their child has a mother and a father? Limiting the relaxation of anti-discrimination laws only to faith-based agencies discriminates against people working in other agencies: it does not give them the same rights.

As I understand it, the Attorney General heard Mr Sartor's amendment in caucus. I believe he would have heard it in caucus because I understand the amendment was discussed in caucus. He knew the implications of the amendment, yet he waited until the Sartor amendment was passed by this House so that he could get the bill across the line. He got the bill across the line.

Mr Michael Daley: He did not have much choice. He was in the other House.

Mr GREG SMITH: It was in the other House—that is true—but he has influence. And he had briefings with his staff. He was offering briefings. This is a private member's bill!

Mr Gerard Martin: It's a conscience vote, too.

Mr GREG SMITH: A conscience vote! When do we get briefings from a Minister of the Crown, using the prestige of his office, on his amendment? He has an agenda, that is, to push for same-sex things, which he is entitled to do. However, we are supposed to be dealing with our consciences, not a caucus decision or party policy. Our consciences will be satisfied if the Hatzistergos amendment is changed in the way I suggest so that any policy, practice or genuine belief of a person is respected. If people genuinely believe that it would be in the best interests of the child to assist a couple to find a similar couple why should they not be protected from any challenge as well? We know that challenges take place. We know that exemptions are tested from time to time. In the Wesley Mission case a gay couple tried to foster a child, knowing that the Wesley Mission did not allow same-sex fostering. That case has been to the Court of Appeal and it is going back there. If we do not protect staff and departments, as well as faith-based organisations, there will be further testing of discrimination in terms of whether proper attitudes have been applied.

Ms CLOVER MOORE (Sydney) [4.11 p.m.]: I oppose the amendment moved by the member for Epping to the amendments of the Attorney General because it is far-reaching and it allows for discrimination by all adoption agencies, including the Department of Community Services. Only faith-based agencies have asked for an exemption from anti-discrimination legislation on the grounds, as we have just been reminded, of the religious beliefs of those organisations. The amendment moved by the member for Epping is unnecessary and inappropriate. It may be contrary to the wishes of the relinquishing parent and it may not be in the best interests of the child. The Legislative Council's amendments—that is, the amendments by Fred Nile and the Attorney General—plus the one from the member for Rockdale, which we have agreed to, will ensure that faith-based agencies do not have to provide adoption services to same-sex couples and that relinquishing parents will not be forced to give up their children to same-sex couples. I urge the House to reject this amending amendment.

Mr RICHARD AMERY (Mount Druitt) [4.12 p.m.]: First, I ask members, particularly Labor members, not to judge the amendment moved by the member for Epping based on his political references, attacks on our caucus and other such matters. I support his amendment and its wording, and I do so for several reasons. I shall put a few matters before the House. First, I wanted to see the bill defeated when we voted on whether it should be agreed to in principle. However, the bill was passed by this House: that debate is over. The bill got through this House and through the Legislative Council. Second, I wanted to see the bill that left this House last week become law. Although I knew how I would vote on the bill, many members were torn because of the Sartor amendment. I have spoken with the Clerks and received advice on whether we can simply vote down this amendment and move another amendment. However, I discovered that the amendment moved by the member for Epping more or less restores the content of the Sartor amendment: there is hardly any difference in the wording. Therefore it would simply complicate matters if I moved an amendment with similar wording to that of the member for Epping. That is why I am supporting a Liberal Party member of this House. In effect, the member is simply restoring the original amendment. I challenge the member for Goulburn to write on a whiteboard or blackboard the words of the member for Rockdale and the Attorney General and to fit in all the doom and gloom she put before the House about the implications of the amendment of the member for Rockdale. It is absurd. Basically, the difference is faith-based organisations as opposed to organisations. The member for Rockdale can speak for himself, but he addressed the issue raised by the member for Goulburn last week before a majority of members voted for the bill. So let us not have any nonsense about blood running in rivers and curses on first-born children should an amendment moved by the member for Rockdale become part of the Act. We voted on that last week. The member for Sydney and the member for Goulburn suggested that the adoption process already involves some discriminatory practices. The Adoption Act is probably one of the most discriminatory Acts and processes that we could ever have. Can two 70-year-old people on good incomes, in a stable home, with a great job and $1 million in the bank adopt a newborn baby in New South Wales? Of course not. Why not? Because of their age. Ms Pru Goward: Actually, grandparents do. Mr RICHARD AMERY: The member for Goulburn knows what I am talking about. During the adoption process the potential parent or parents are assessed on whether they would be suitable. Age, stability of family life and income—in other words, all discriminatory considerations—are assessed to ensure that adoption is in the best interests of the child or that at least the child gets the best start, although we know that sometimes people's lives change. However, we have already passed the bill so that debate is finished. I do not believe the arguments put forward by the member for Goulburn and all the doom and gloom that has been spread around this place about the original amendment of the member for Rockdale have any validity. As a personal explanation to Labor members, I support the amendment moved by the member for Epping because it is the closest thing to the original amendment of the member for Rockdale. If the amendment of the member for Epping is defeated I will vote against amendments Nos 2 and 3 from the Legislative Council—known in this debate as the Hatzistergos amendments. Overall, I reject the doom and gloom spread by the member for Sydney and the member for Goulburn and I support the amendment of the member for Epping. Of course, if the amendment is defeated I will oppose the Legislative Council amendments.

Mr BARRY O'FARRELL (Ku-ring-gai—Leader of the Opposition) [4.17 p.m.]: I remind members that this debate involves a conscience vote. Member with strongly held views will shape their vote according to their beliefs, their political philosophies, and their assessment of the views of the communities they represent. I supported the original passage of this legislation partly because of two amendments, the first of which exempts faith-based agencies. As I said in my contribution to the agreement in principle debate, I believe it is appropriate that the faiths that exist across our religion should be entitled to practise those faiths and not be forced by the State to do otherwise. I also voted for the amendment moved by the member for Rockdale, although for me it was about the consent of birth parents. The House has just passed an amendment that respects parental wishes. I am happy with that.

As much as I admire and respect the member for Epping, and as much as I acknowledge at least the legal skill of the Attorney General, this must not be allowed to become a he said, she said legal debate, absent the views of the child. Therefore, I cannot support the amendment moved by the member for Epping. I do not believe it will allow faith-based agencies to practise what they believe. For instance, it would have protected Wesley Mission from the case that has been brought against it. I have enormous sympathy for Wesley Mission and I am pleased that, belatedly, the Attorney General sought to intervene in order to assist it. I say to the member for Mount Druitt that we should not try to use debate on this amendment, no matter if we start each sentence with the claim that we are not redebating the bill, by rehearsing all the arguments against the bill. Let us just address the amendments and vote according to our conscience and not cloud the issue.

Mr FRANK SARTOR (Rockdale—Minister for Climate Change and the Environment, and Minister Assisting the Minister for Health (Cancer)) [4.20 p.m.]: I will briefly clarify a couple of matters. I will not support the amendment moved by the member for Epping because in my view it is a poor imitation of the amendment I moved last week. It seems to focus just on same-sex, homosexual and transgender couples. My amendment was much more generic and basically said that under the Adoption Act 17 matters and principles have to be followed. A Supreme Court judge will stand guard on the process and responsible agencies have a delegated authority through the Director General of the Department of Community Services, and they should not be burdened by having to worry about all these other issues.

Adoption agencies and I were concerned, for example, that we might end up with a quota system and if they did not do enough of this type or that type they might end up somehow being seen to be discriminatory. I believe I am correct in that position. I say to the member for Sydney that I also believe my amendment did not affect employment practices. I got that assurance from lawyers. It was never my intention to affect employment practices and I believe my amendment would not have done so. I cannot accept the amendment of the member for Epping because it focuses on homosexual, transgender-type discrimination issues and broadens the scope beyond the faith-based organisations. My amendment was about having a primacy of the Adoption Act and adoption issues. The member for Goulburn may feel this is rushed but I spent three days working on the amendment. I discussed it with the Attorney General several times. I made two amendments based on his comments to me, including making sure that the child was still caught by the Anti-Discrimination Act. I would have made more amendments had the Attorney General kept engaging with me. I believe that we did have time to consider clearly what we were doing. I do not agree that it was something that I thought of on the way in because I wanted to have something to say. I feel very strongly about this issue. I dearly love my lovely kids. I have got two grown-ups as well. I have a very strong view about this matter.

I have said that I will support the Hatzistergos amendments not because I agree with them but because a representative democracy is fundamentally about compromise. The upper House has expressed a clear view one way—its members are probably more stubborn, and less sensible and balanced than we are. Some people even refer to them as an unrepresentative something or other, but I would never repeat that. It has expressed a strong vote in a certain direction. I thank Parliamentary Counsel for his hard work for all members, and with his help I have formulated an amendment that at least achieves a situation different from current custom and practice so that the wishes of people adopting out their children, birth parents or otherwise, can be now considered and acted on without having to worry about the Anti-Discrimination Act. That is why I will support the upper House amendments, even though I do not actually agree with them.

Mr GREG SMITH (Epping) [ 4.23 p.m.]: Could I just change my— Ms Linda Burney: Are you changing your mind? Mr GREG SMITH: No, I constantly give review to these matters but I have not changed my mind. I inform the House that in two places "this" before "part 3A" should be deleted from my amendment as originally drafted. If my amendment is passed I foreshadow that I will move a consequential amendment to amendment No. 3. Ms LINDA BURNEY (Canterbury—Minister for the State Plan, and Minister for Community Services) [4.24 p.m.]: I will not rehash what I said earlier. However, I say clearly that I do not support the amendment of the member for Epping, and that is enough said, sir. Mr DARYL MAGUIRE (Wagga Wagga) [4.25 p.m.]: I said that I would support the amendment moved by the member for Rockdale and the bill on the proviso that the amendment was successful. It was passed in this House by just two votes. I have listened intently to this debate. Some members have said that the amendment moved by the member for Rockdale will open up all sorts of claims by other groups. If the provision is so bad why has that not happened in Western Australia? This legislation is a mirror of that of Western Australia, where that has not happened. This House agreed to the broad amendment moved by the member for Rockdale. I say that we should reject all these amendments, including the amendment of the Attorney General, and stick with the one that we agreed to. If a problem occurs we can send it back to the Legislative Council and if agreement cannot be reached this Parliament has mediation mechanisms to sort it out. I support the original amendment moved by the member for Rockdale and I urge other members to do the same.

Ms KRISTINA KENEALLY (Heffron—Premier, and Minister for Redfern Waterloo) [4.26 p.m.]: I support the amendment moved by the Attorney General in the Legislative Council and oppose the amendment moved by the member for Epping. I do not intend to canvass all the arguments as they have already been canvassed. In relation to what the member for Wagga Wagga said, I am advised that the difference is that there is only one adoption agency in Western Australia and it is provided by the State. That is a clear difference between our systems and may account for the differences that the member says we should examine. I say we should be mindful that we are not talking about a comparison of apples with apples in relation to New South Wales and Western Australia but about a comparison of apples and oranges. Last week a number of members spoke to the bill and to the amendments moved by the member for Rockdale. Both Houses of Parliament have expressed a view that the Adoption Act should be amended to allow same-sex parents to adopt. We are now debating—as we debated with the amendment last week and with the amendments in the upper House—how an exemption should be provided to faith-based organisations. Nobody on either side is credibly arguing that an exemption should not be provided to faith-based organisations. I looked at the speeches last week and I interpreted that members who wanted to support the amendment to the Act clearly accepted wholeheartedly that an exemption should be provided to faith-based organisations. Some members who spoke in the debate on the amendment made clear that, while they may not support the amendment to the Adoption Act, they support an exemption to be provided for faith-based organisations. We are now debating precisely the form that exemption should take. We are all trying to grapple with what may or may not be consequences that might flow from how that exemption is structured. I have not yet heard anybody substantially argue that there should not be an exemption provided for faith-based organisations. In this debate on the amendment we should bear that in mind. The risk is that an amendment to the Adoption Act that was passed in this Legislative Assembly and the Legislative Council now risks failing because we are having a debate over the form an exemption should take. I understand and respect that there are various views about how that exemption should be provided. We have heard very clearly from the movers of amendments, particularly from the member for Rockdale.

I remind members that we are voting on something we primarily all agree with: that there should be an exemption for faith-based organisations. I urge members to consider the words of the Leader of the Opposition, that this should not become a debate about he said, she said, who said, which legal opinion prevails? We should all remember what we are seeking to do, that is, provide and support an exemption for faith-based organisations. How that occurs is the subject of this debate, but we should be very mindful that what is at risk is overturning the decision taken by both Houses of this Parliament. Ms PRU GOWARD (Goulburn) [4.30 p.m.]: I think there are a couple of points that we need to agree about. I agree with the Premier that everybody here is saying that faith-based organisations should be exempt, but the consequence of today's amendment moved by the member for Epping is that all adoption agencies be exempt. When we passed the amendment last week I think we all believed that this was about birth parents' rights to have some indicative say in what happened to their children. The amendment of the member for Epping, if passed, takes away the faith-based principle of exemption that has underlain the Anti-Discrimination Act. It very definitely does that. We are not now debating the adoption law; I think we have all agreed on the adoption law. We are now debating what sort of anti-discrimination law we want. I understand why my good friend the member for Epping has moved the amendment. He believes that individuals in those organisations have the right to express their conscience. If they have religious beliefs and they happen to work for the Department of Community Services they are denied the opportunity to reflect their views. That is true, but that is true in all forms of anti-discrimination law. It applies to organisations, not to individuals. If you work for an organisation that has as part of its principles of operation that it will not discriminate on this basis and you are a faith-based person who has contrary beliefs, you have every right to choose not to work for that organisation. That has to be the way that anti-discrimination law works or it would be unworkable because individuals could challenge the organisation for which they work.

Anti-discrimination law has always been based on the principles of organisations, assuming that people have free right of movement between organisations, so they can work for or be part of an organisation that reflects their values. Let there be no doubt: If a non faith-based organisation did not want to allow same-sex adoption it could just reconfigure itself as a faith-based organisation. There are lots of ways around it, if that is what the organisation wants to do. But this does not help the strength of the anti-discrimination law.

What we have to appreciate is the effect, in a sense inadvertently, of the amendments of the member for Rockdale last week and, for other reasons, the member for Epping today. There are other ways of dealing with the rights of individuals who work for non faith-based organisations. They have the right to withdraw from adoption or to seek employment elsewhere. But if we allow this exemption to be as broad as is proposed then I can see no reason why any company in New South Wales could not go to the Anti-Discrimination Board and seek similar changes to the law so that it can be reflected in its industry. And that is not fanciful. That is why the anti-discrimination law is always held to be as narrow in exemptions as it can be: in order to stop exceptions dominating the law. Anti-discrimination law must be based on general principles and not be driven by exemptions.

Mr JOHN AQUILINA (Riverstone—Parliamentary Secretary) [4.34 p.m.]: I refute explicitly the statement that has been made by the member for Goulburn in relation to the application of the Anti-Discrimination Act and how it may apply to any industry were this amendment to be passed. At the outset I say that it is with considerable regret that I was not in a position to participate in the debate last week. My views on these matters are well known and I take this opportunity to state them very strongly: I am totally opposed to the initial legislation. I felt, after reading Hansard, reading the arguments and discussing the matter with many members, that at least the amendment moved by the member for Rockdale in some way ameliorated some of the issues. I refute claims that have been made that, had I been present, my vote would in some way have affected the passing of the bill. In fact, members are aware that that would not have been the case, so I want to put that to bed.

I support the amendment moved by the member for Epping for a number of reasons. One is that, although this debate has come down to exemptions of faith-based organisations, I believe that the original intention of the member for Rockdale—and I hope I am not wrong in this—was to take that a little further. It was also to give some jurisdiction and rights to parents handing up their children for adoption in relation to being able to state who or what they wanted their child to be adopted to. I think it is important that we get back to that principle—that parents who hand up their children for adoption have every right to make a statement. Observing is one thing; giving organisations the opportunity and the legal right to make positive discrimination is something else. That is what the amendment moved by the member for Epping is all about, as I take it.

I think it is a very strongly held point of view that parents giving up their child for adoption should be able to mandate what type of parents they want their child to be adopted to and what kind of family they want their child to be adopted into, and that is basically what this is all about. That is what I understood the amendment of the member for Rockdale did last week, which we are now trying to change. I do not want to make this a long presentation, having come into the debate so late. However, I will be voting against the Hon. John Hatzistergos's amendment and, should that not be successful, I will vote for the amendment of the member for Epping.

Ms CLOVER MOORE (Sydney) [4.37 p.m.]: I remind the member for Riverstone that we are not dealing with Reverend the Hon. Fred Nile's amendment, which we have just supported. It ensures the current practice of providing relinquishing parents—that is, birth parents—with background information about prospective adoptive parents, including information about their cultural and social background, religious beliefs, domestic relationships and living arrangements. So what has just been expressed is already in the bill. It has already been agreed to in this House and in the other place. That is not what the member for Epping is putting up. The matters the member has just raised are already part of the legislation.

Mr GREG SMITH (Epping) [4.38 p.m.]: What I put up was a much milder wording of what the member for Rockdale put up. One would think from the response from some people who are opposing it that I have thrown the devil incarnate into the stadium, as it were. I am trying to stick to the amendment moved by the member for Rockdale, but limit it to the two parts of the Anti-Discrimination Act that the Hon. John Hatzistergos wants to limit it to. Why such outcry? As the member for Riverstone said, parents should have a say. This lets agency officers have a conscience. Why should they not have to work for a particular department because that department might slant adoptions a particular way? I am not accusing them of that, but it is always a possibility.

I am using the reverse of what the Hon. John Hatzistergos said. He said his fears about Mr Sartor's amendment were that some person might slant it towards the so-called redneck heterosexuals and start going against people on grounds of disability, race or whatever. Quite frankly, some might have said that was nonsense, but I would not say that. All I am trying to do is clarify the role of those who work outside faith-based agencies. Of course, my amendment includes faith-based agencies.

Ms LINDA BURNEY (Canterbury—Minister for the State Plan, and Minister for Community Services) [4.39 p.m.]: I want to try to bring this to a vote. Many members have spoken but I want to respond to the comments of the member for Riverstone because, with due respect to him, he is not right on this one. The existing practice is that birth parents are asked whether they want to be involved in the selection of adoptive parents. That happens now. They are asked about the kind of family they would like the child to grow up in. They are also able to make requests about issues such as religion, culture and the relationship status of the adoptive parents.

I ask members to listen to this. Birth parents already are part of the process and those are the things they can express a view about. I can assure members that their views are listened to. As I said, they are asked about the kind of family, about religion, and about the culture and relationship status of adoptive parents. The birth parents are given the opportunity to look at profiles of approved applicants judged as being suitable to parent their child. The non-identifying profile tells the birth parent about the adoptive parents' ages, family composition, educational levels, occupation, cultural background, religion, interests, hobbies and attitudes to post-adoption practice. It is absolutely there now. People really need to understand that. If the birth parents do not like any families being suggested they can ask to consider different families.

Giving birth parents background information about the adoptive family and involving them in the selection process are very important to the establishment of a positive future relationship between the birth parents and adoptive parents. It is about establishing that relationship and it goes to the very point that we are discussing—the best interests of the child. I can tell members from personal experience that you want to know who your parents are. This approach makes sure that it happens. I say to the member for Riverstone that that is what happens; it is the practice now. Openness and ongoing contact between the birth family and the adoptive family have proved to be critical to the adopted child's development and wellbeing. For those members who have doubts I can assure them that these things are considered very seriously in the adoption process.

Mr BRAD HAZZARD (Wakehurst) [4.42 p.m.]: As the former shadow Minister for Community Services I confirm, as the Minister for Community Services said, that that is how the process operates. I remind the House that we are concentrating on a very small group of children who go through the type of adoption process that seems to be the focus at the moment. As I understand it, that group numbers less than 20 in New South Wales. For that reason, when members are making their decision they should realise that in a sense what we are debating now is the tail wagging the dog, because the far greater number of people who will seek to use this legislation are those who in many instances include one partner who is the biological parent but has taken up a relationship with a person of the same sex. They number in the hundreds, at least, in New South Wales. Those are the groups.

Most of us would have had approaches as we struggled with our consciences on this issue. We know that in many instances there are people out there who are the biological parent of the child with whom they reside but they are now living with a same-sex partner. They want us to give them the right to let their partner adopt their child and in so doing give that child the certainty of maintenance and an entitlement to their estate if that person passes away. That is what we are doing.

I have the highest regard for the member for Epping. I have been delighted with his presence in the Liberal Party and in the Parliament, but on this issue I differ, with a great degree of consideration. I ask all members to think about only one issue: What is in the best interests of the child. That is the only issue—what is in the best interests of the child, not what is in the best interests of the parent who may be gay. Should that child have the capacity to look to that other person who is living in the house today, will be living in the house tomorrow and will be living in the house for years to come? Will we as a House and as a Parliament give that child the right to look to that person who is in the house with them—irrespective of anything we decide in this place that will continue—and allow the child to have a clear right to maintenance and to claim property entitlements against them, or will we be intimidated from following the right course?

Mr NINOS KHOSHABA (Smithfield) [4.45 p.m.]: I will be very brief. Last week I made my position very clear on the bill and it has not changed. The main reason for my stance is that I believe the best interests of the child should come first and I am opposed to the idea of same-sex adoption. However, I think this whole thing is a joke. We as members of Parliament and as legislators need to spend some time consulting with all interested groups, whether they are faith-based or community-based, and our constituents, and try to come to some agreement that is in the best interests of the child, not the adult, before trying to push this bill through. I believe this has not happened.

I place on record that I disagree with this whole bill and the amendments to it. I will continue to oppose this issue and any amendment. I believe limited research and consultation was done before this bill was introduced. If members are fair dinkum about this issue the bill should be voted down and withdrawn. If the people of New South Wales think that this is such an important issue a new bill can be introduced at a later stage after extensive community consultation and research. This is a much too important issue for us to just rush it through. The only move I will support is the withdrawal of this bill. I strongly oppose the bill.

The DEPUTY-SPEAKER: Order! Before I call the member for Hawkesbury, I draw members' attention to Standing Order 76, relevance. We are discussing the amendments before the House, not revisiting the bill. Members cannot revisit the entire debate; that will not be tolerated by the Chair. Members will confine their remarks to the amendments before the House.

Mr Ninos Khoshaba: Point of order: For the record, I was talking about the amendment. I said I would not support any amendment to this bill.

The DEPUTY-SPEAKER: Order! I have referred members to Standing Order 76. Members will abide by my ruling.

Mr RAY WILLIAMS (Hawkesbury) [4.47 p.m.]: I will be brief, too, recognising that we are considering the bill in detail and everybody can probably speak 6,700 times and we will probably be here until March 2011 if we do not hurry it along a little. I will support the amendment moved by the member for Epping because it is, as the member for Mount Druitt pointed out, close to what passed by this House last week. Whilst I certainly oppose the bill on the basis of the issues raised by the member for Riverstone, and support his comments, I appreciate the clarification by the member for Mount Druitt. Anyone who is keeping up with the amendments that have been moved would qualify as a NASA technician. The debate is getting very convoluted and difficult to follow. However, I will be supporting the amendment moved by the member for Epping for the reasons I have given.

As the member for Mount Druitt clearly pointed out, we made a decision in this House and I believe that was accepted because of the amendment put forward by the member for Rockdale, albeit it passed by only two votes. The bill left this House in that form and went to the upper House. The engineers in the upper House have unravelled it. As any good bus driver will tell you, if you want to get a tyre changed on a bus you talk to a mechanic, not to an engineer. An engineer starts at the roof and pulls out the lights and blinkers. The bill passed through this place after consultation with people in the community. I did not agree with the bill, but it has gone to the upper House.

Mr ANDREW CONSTANCE (Bega) [4.49 p.m.]: I contribute briefly in debate to state why the Attorney General moved the amendment in the upper House. The intention of his amendment was to remove the blanket exception that existed, which would lead to discrimination against people with disabilities and the elderly. I support the amendment moved by the Attorney General because it will remove that blanket exemption. I have been contacted by organisations such as the Council for the Ageing, which said that if the Attorney General's amendment was not agreed to it would lead to broad-based discrimination, in particular, against grandparent carers.

I draw the attention of members to an article in the Sydney Morning Herald that refers to Lucy Porter, a 78-year-old grandmother who is raising four children. She refers in that article to a "journey in ageism" when it comes to taking care of her grandchildren. I voted against the bill in principle but I will support this amendment because it will remove that blanket exemption—the unintended consequence of debate that occurred in this Chamber a week ago—and ensure that discrimination against people with disabilities and seniors is removed.

Ms CLOVER MOORE (Sydney) [4.51 p.m.]: I will not restate the points that have been made already in debate, but I wish to respond to one matter that was raised by the member for Smithfield about inadequate opportunities for consultation. I remind members that back in 1997 this matter was recommended by the Law Reform Commission and there has been a Legislative Council committee inquiry in relation to it. Three months ago I gave notice of my intention to introduce the Adoption Amendment (Same Sex Couples) Bill 2010 and it lay on the table for that whole period, which is a responsible approach when dealing with landmark legislation. I do not believe that all members consider this to be landmark legislation, but for the past three months the bill has been available for members to discuss with their communities. I hope that members will support this amendment to the bill, which has already been approved by both Houses of Parliament.

Ms VIRGINIA JUDGE (Strathfield—Minister for Fair Trading, Minister for the Arts) [4.52 p.m.]: Last week, when the Adoption Amendment (Same Sex Couples) Bill 2010 (No. 2) was introduced in this place, I spoke strongly about the intentions of the provisions in that bill and I voted against it. If this bill is passed it will be akin to throwing the Anti-Discrimination Act out the window. It is the view of some people that this bill will promote the rights of certain groups in the community—rights that they believe they should have. During debate on this bill members kept referring to the best interests of the child, a provision that is to be found in the Adoption Act and that has been there all the time. No effort has been made to remove that provision, so I do not know why members keep referring to the best interests of the child. Let us compare that phrase with the word "reform", which could be interpreted as "non-reform", or "voluntary reform", which could well lead to being non-voluntary reform. It is a nice term to use. No-one will disagree with the phrase "in the best interests of the child". I am sure that every human being wants to do what is in the best interests of a child or children everywhere. The original bill contained a bit of this and a bit of that and, basically, it was going to afford some groups certain rights. Ms Pru Goward: Point of order: Madam Deputy-Speaker, I remind you of your instruction to the House to debate the amendments.

Ms VIRGINIA JUDGE: I am talking to the amendments.

The DEPUTY-SPEAKER: Order! I uphold the point of order. I remind the Minister for Fair Trading that we are talking about a Legislative Council amendment relating to faith-based organisations.

Ms VIRGINIA JUDGE: It came to the attention of several members that the original bill and the amendments that were moved to it would breach the Anti-Discrimination Act. We do not want to breach the Anti-Discrimination Act, which was fought for long and hard by members of this Parliament and by members of the community. The provisions in this bill refer to a positive form of discrimination and state that specific subsets or religious groups should be exempted. I note that the member for Epping is nodding his head in agreement with me, and I am not even a lawyer. Those facts are glaringly obvious. I indicated that I would vote against this flawed legislative package when I contributed to debate on the bill. The amendment moved by the member for Epping, which is far too broad, covers anything relating to the provision of adoption services—for example, human resources and managing the Department of Human Services, which has a responsibility for employing staff to make adoption decisions. That department might decide, because of a religious belief, to discriminate against carers, homosexuals or married people who would be exempt from the Anti-Discrimination Act. How far should we go? If that is what we believe why do we not just take the Anti-Discrimination Act and chuck it out the window? If members vote against the amendment moved by the member for Epping and they vote for the amendments moved by the Attorney General in the other place, we will be faced with the original bill, which was amended, which I did not support. The member for Sydney included some amendments to the bill when she did not know what to do and when she wanted to ensure that she looked after those religious groups. This bill is fundamentally flawed, which is sad as it is an important bill. I cannot support these amendments.

Mr BRAD HAZZARD (Wakehurst) [4.57 p.m.]: I do not want to upset anyone, but is it appropriate at this point simply to put the question?

The DEPUTY-SPEAKER: Order! I was about to put the motion. Mr Daryl Maguire: Before you put the question, could you explain to members the consequence of a yes or a no vote so that they understand the process?

The DEPUTY-SPEAKER: Order! The House will vote on the amendment moved by the member for Epping. If that amendment is lost, there will be a vote on the amendment moved by the Attorney General in the other place.

Question—That the amendment to Legislative Council amendment No. 2 be agreed to—put.

The House divided.

Ayes, 28
Ms Andrews
Mr Aplin
Mr Aquilina
Mr Baumann
Mr Collier
Ms D'Amore
Mr Fraser
Mr Harris
Mr Hartcher
Ms Hodgkinson
Mr Kerr
Mr McBride
Mr Merton
Mr Page
Mr Provest
Mr Richardson
Mr Roberts
Mr Shearan
Mr Smith
Mr Souris
Mr Stewart
Mr Stoner
Mr Tripodi
Mr J. H. Turner
Mr J. D. Williams
Mr R. C. Williams

Tellers,
Mr Amery
Mr George

Noes, 60
Mr Ashton
Mr Ayres
Mr Baird
Ms Beamer
Ms Berejiklian
Mr Besseling
Mr Borger
Mr Brown
Ms Burney
Ms Burton
Mr Campbell
Mr Cansdell
Mr Constance
Mr Coombs
Mr Corrigan
Mr Costa
Mr Daley
Mr Debnam
Mr Dominello
Ms Firth
Ms Gadiel
Mr Gibson
Ms Goward
Mr Greene
Mrs Hancock
Ms Hay
Mr Hazzard
Mr Hickey
Mrs Hopwood
Ms Hornery
Ms Judge
Ms Keneally
Mr Khoshaba
Mr Koperberg
Mr Lalich
Mr Lynch
Dr McDonald
Ms McKay
Mr McLeay
Ms McMahon
Ms Megarrity
Ms Moore
Mr Morris
Mr O'Dea
Mr O'Farrell
Mr Pearce
Mrs Perry
Mr Piccoli
Mr Piper
Mr Rees
Mr Sartor
Mrs Skinner
Mr Stokes
Ms Tebbutt
Mr Terenzini
Mr R. W. Turner
Mr West


Mr Whan
Tellers,
Mr Maguire
Mr Martin

Question resolved in the negative.

Amendment to Legislative Council amendment No. 2 negatived.

Ms CLOVER MOORE (Sydney) [5.07 p.m.]: I have been requested to remind the House about what we are voting on because some members were not present for the entire debate.

The SPEAKER: Order! I remind members that the member for Sydney is entitled to speak to her motion. I congratulate all members on their contributions to this difficult debate.

Ms CLOVER MOORE: I will briefly summarise the Legislative Council amendments before us. The Attorney General moved two amendments to ensure that only faith-based adoption agencies will be exempt from the Anti-Discrimination Act and that the exemption will apply only when agencies provide adoption services. The grounds for discrimination will be limited to homosexual and transgender discrimination in line with what faith-based adoption agencies have requested. Under these amendments the best interests of the child will continue to be of paramount consideration for adoption agencies over and above any provision in the Anti-Discrimination Act.

Question—That Legislative council amendments Nos 2 and 3 be agreed to—put.

The House divided.


Ayes, 46
Mr Ayres
Ms Beamer
Ms Berejiklian
Mr Besseling
Mr Borger
Mr Brown
Ms Burney
Mr Campbell
Mr Coombs
Mr Constance
Mr Corrigan
Mr Daley
Mr Debnam
Mr Dominello
Ms Firth
Mr Furolo
Ms Gadiel
Ms Goward
Mr Greene
Mrs Hancock
Mr Hazzard
Mr Hickey
Mrs Hopwood
Ms Hornery
Ms Keneally
Mr Koperberg
Mr Lynch
Dr McDonald
Ms McKay
Mr McLeay
Ms Megarrity
Ms Moore
Mr Morris
Mr O'Farrell
Mr Pearce
Mr Piccoli
Mr Piper
Mr Rees
Mr Sartor
Mrs Skinner
Ms Tebbutt
Mr Terenzini
Mr R. W. Turner
Mr Whan

Tellers,
Mr Ashton
Mr Martin

Noes, 43
Mr Amery
Ms Andrews
Mr Aplin
Mr Aquilina
Mr Baird
Mr Baumann
Ms Burton
Mr Cansdell
Mr Collier
Mr Costa
Ms D'Amore
Mr Fraser
Mr Gibson
Mr Harris
Mr Hartcher
Ms Hay
Ms Hodgkinson
Ms Judge
Mr Kerr
Mr Khoshaba
Mr Lalich
Mr McBride
Ms McMahon
Mr Merton
Mr O'Dea
Mr Page
Mrs Perry
Mr Provest
Mr Richardson
Mr Roberts
Mr Shearan
Mr Smith
Mr Souris
Mr Stewart
Mr Stokes
Mr Stoner
Mr Tripodi
Mr J. H. Turner
Mr West
Mr. J. D. Williams
Mr R. C. Williams

Tellers,
Mr George
Mr Maguire

Question resolved in the affirmative.

Legislative Council amendments Nos 2 and 3 agreed to.

Message sent to the Legislative Council advising it of the resolutions.  (Source : http://www.parliament.nsw.gov.au/prod/parlment/hansart.nsf/V3Key/LA20100909029?open&refNavID=HA8_1)

"Children Legislation Amendment (Child Death Review Team) Bill 2011"

Page: 6762
Agreement in Principle

Debate resumed from an earlier hour.

Mr JAI ROWELL (Wollondilly) [4.08 p.m.]: It was pleasing to see that the changes to the Children Legislation Amendment (Child Death Review Team) Bill 2011 are in line with our commitment made in the lead-up to the March 2011 election. The changes include transferring the Child Death Review Team functions from the Commission for Children and Young People Act 1998 to the Community Services Act 1993, removing the role of the Minister in certain aspects, altering the number of parliamentary committees that the Ombudsman must report to, extending the term of team members of the Child Death Review Team, and removing the requirement of ministerial approval before the team can undertake research. The Ombudsman no longer has to provide a draft to the Minister; only a final copy will be required.

Questions have been raised as to why the Government is removing the expert role of the Committee on Children and Young People in relation to child deaths. The Committee on Children and Young People is established under the Commission for Children and Young People Act and exists to monitor and review the activities of the Commissioner for Children and Young People. Once the Child Death Review Team is removed from the Commission for Children and Young People Act it falls out of the committee's purview. The parliamentary Committee on the Office of the Ombudsman and Police Integrity Commission is the appropriate body to consider all work undertaken by the Ombudsman, and that includes the Child Death Review Team. It makes no sense to require the Ombudsman to report to two committees.

Splitting child death reporting between two parliamentary committees would mean that neither committee would achieve a full understanding of the area. The Committee on Children and Young People has established expertise in the examination of child deaths. The Commissioner for Children and Young People is a member of the Child Death Review Team and may continue to keep the committee informed of the team's deliberations. Why is the Government removing the role of the Minister to endorse the Child Death Review Team's research program? The standard role of the Ombudsman requires a level of independence from government. This is not the case for the Commissioner for Children and Young People, who was the former convener of the Child Death Review Team.

In transferring the team into the jurisdiction of the Ombudsman it is appropriate that the Ombudsman is able to exercise the team's functions with more independence. The Government also believes that the Child Death Review Team, with its considerable expertise and experience, should be an important part of decisions about the team's research. It is for this reason that the Government proposes to require the Ombudsman to obtain the concurrence of the Child Death Review Team before commissioning research on the team's behalf. Why is the Ombudsman required to seek approval of the Minister in exercising his independent role? While the Child Death Review Team is convened and administered by the Ombudsman, it is not part of that office's independent review and monitoring functions.

The team exists to assist the Government to prevent and reduce child deaths. The approach is collaborative and advisory. This is distinct from the Ombudsman's watchdog role where the onus is on providing independent and impartial oversight of government agencies to ensure they fulfil their functions properly. It is appropriate that the review of the applicable legislation to the Ombudsman's oversight functions should be undertaken by parliamentary committees rather than by the Executive being held accountable. The same cannot be said for the Child Death Review Team, the role of which is to assist government. The Executive is the proper place for the review of the team's policy objectives. While this bill ensures that the Ombudsman is able to conduct his Child Death Review Team functions with more independence than was the case for the previous convener, it is appropriate that decisions about the team's policy remain under ministerial control.

Why is the Government removing the statutory requirement for the convener to submit draft Child Death Review Team reports to the Minister prior to tabling? As I said earlier, the standard role of the Ombudsman requires a level of independence from government. In transferring the team to the jurisdiction of the Ombudsman it is appropriate that the Ombudsman is able to exercise the team's functions with more independence. This change will provide the Ombudsman with greater independence from government. An administrative undertaking of this nature achieves an appropriate balance between the independence of the Ombudsman's functions and the reasonable expectation that government should be afforded an opportunity to review draft reports for factual errors.

Finally, the bill retains a statutory requirement for the Ombudsman to provide a copy of the final Child Death Review Team's report to the Minister, as is also the case for the Ombudsman reports made under the Ombudsman Act and Community Service (Complaints, Reviews and Monitoring) Act. However, we must remember that the recommendations made by Justice Wood were only partially implemented by those opposite. They had to be dragged kicking and screaming to implement the changes. The changes did not come into effect until February and they are half-hearted at best. Luckily, on 26 March we had a change of government. The people of New South Wales elected a government that was not tired, old and tarnished. We have a fresh approach and we respect the recommendations of key stakeholders, so we are getting on and finishing the job. This is yet another example of this Government fulfilling its election promises. It is an important step in improving the health and wellbeing of our youth. The Child Death Review Team is an important entity, and relocating it to fall under the responsibility of the Ombudsman is a positive step for the residents of Wollondilly and all other people of New South Wales. I will spend a few moments addressing comments by some of those opposite. The member for Macquarie Fields—who in most circumstances is respected in his field outside this place—had the hide to come into this Chamber today and say that this legislation is a bit dodgy. Those opposite had 16 years to look at this. In fact, they had three or four years after the report was published and what have they done? As usual, they sat on their hands. The member for Macquarie Fields also said that this Government is running a sausage factory, that there is too much work to be done and not enough consultation. Yet the shadow Minister, the member for Auburn, said at the start of this debate that she had had more than a day to look at the bill. Other members, including the member for Keira, said they had only had a couple of minutes. Again, we see nothing but spin from this Opposition that has no substance, no policy direction and is only here to scaremonger no matter what policy we are discussing. Of course the member for Keira made no constructive contribution. He should spend more time focusing on children's needs as opposed to his aspiration to become the leader of the Labor Party at some future point. The member for Bankstown said she supports most of the legislation, but unfortunately she cannot support the bill. It is opposition for opposition's sake. Those opposite should get on with the job, focus on this and support the bill. The Minister Goward should be commended. She spends a lot of time consulting with stakeholders. I know that because she spends a lot of her time in my electorate visiting various groups, organisations and individuals. She is an example of a Minister who is taking politics out of it and is getting on with the job. I support the Minister and the bill, and I commend it to the House.

Mrs TANYA DAVIES (Mulgoa) [4.14 p.m.]: I fully support the Children Legislation Amendment (Child Death Review Team) Bill 2011. I congratulate the Minister for Family and Community Services. I also congratulate the Minister for Ageing, and Minister for Disability Services on the assistance he provided in formulating this extremely important bill. This bill was written to redress the failure of the former Labor Government and to fully implement Justice Wood's recommendations from the Special Commission of Inquiry into Child Protection Services in New South Wales. It is interesting to note that that special commission of inquiry was completed in 2008. I will reflect on the various comments made this morning by those opposite in relation to this bill. They said they had no notice of this bill and were not given enough time to consider its content. The subject of this bill came out of a special commission of inquiry in 2008. Those opposite have had a number of years to digest the content of that commission of inquiry and to consider its recommendations. The Special Commission of Inquiry into Child Protection Services in New South Wales recommended the transfer of responsibility for convening the Child Death Review Team from the Commission for Children and Young People to the NSW Ombudsman. The New South Wales Liberal Party and The Nationals strongly supported this transfer while in opposition. In April 2009 this Parliament passed legislation that transferred the responsibility of the Child Death Review Team from the Commission for Children and Young People to the Ombudsman. At that time the Coalition in opposition proposed amendments to further strengthen this bill. On 4 November 2010 the Ombudsman released the report "Unresolved issues in the transfer of NSW Child Death Review Team to the Office of the NSW Ombudsman". The report detailed the difficulties experienced by the Ombudsman due to the incomplete nature of the former Government's transfer. There were a number of opportunities for the then Labor Government to understand exactly what the Coalition while in opposition desired to achieve with the Child Death Review Team. They have had plenty of time to consider the implications of our policy position. In fact, on 3 March this year we announced in our out-of-home-care policy called "Recovering Children at Risk" that we would support the Ombudsman's role in independently reviewing child deaths in New South Wales by transferring responsibility for coordinating the Child Death Review Team from the Commission for Children and Young People to the Ombudsman's office.

When the former Labor Government eventually backed down from its initial objections after receiving Justice Wood's recommendations, it made only a half-hearted effort and did not fully implement the complete raft of recommendations. This bill is yet another example of the O'Farrell Government delivering on its election commitments. While those opposite claim they had no notice, we told them our policy position on 3 March. Perhaps they did not believe that we would deliver what we promised, because they did not do that while they were in government and running elections. This bill will boost accountability and transparency by supporting the Ombudsman's independence and the work of his office with child deaths. The objective of the Child Death Review Team is to assist government to prevent and reduce the number of deaths of children aged from birth to 17 years.

The Ombudsman's "Report of Reviewable Deaths 2008-2009—Volume 1: Child Deaths", is a difficult and challenging report to read. I ask any member of the House who has not yet read the report to take the time to do so. It is a very sobering review and it shines the spotlight on the situation in our State. From 1 January 2008 to 31 December 2009 a total of 77 child deaths were reviewable. Deaths that are required to be reviewed must meet these criteria: the child died as a result of abuse or neglect; the death occurred in suspicious circumstances; at the time of death the child was in care; at the time of death the child was in detention. Some 20 children died as a result of abuse—that is 20 children too many. It is a heartbreaking figure. Some 23 children died as a result of neglect; six children died in circumstances where there were suspicions of abuse and eight in circumstances suspicious of neglect; and 20 children died while in care.

As the mother of a 4½-year-old girl, it is a heartbreaking statistic that the majority of children whose deaths were reviewable were under five years of age. The death of any child is a tragedy so great that most parents can never fully recover. I have met families who have suffered the loss of a child through disease or accident, and their heartbreak lives with them forever. However, in the case of abused or neglected children, the murder of a perfectly healthy baby or child at the hands of those who are meant to protect and provide for that child is one of the most vile and evil actions of a human being. I question whether they can be called "human". I cannot comprehend an adult taking out their anger on an innocent baby or young person and causing that child's death. Statistics demonstrate that the 20 children who died from abuse and the six who died in circumstances suspicious of abuse did so at the hands of someone within their family.

The Special Commission of Inquiry into Child Protection Services in New South Wales recommended the transfer of responsibility for convening the Child Death Review Team from the Commission for Children and Young People to the NSW Ombudsman. The former Labor Government failed to completely deliver this transfer, as I noted earlier. I cannot comprehend the reason for this failure when we are dealing with the murders and deaths of children, the youngest citizens of this State. Children have no voice in many cases and in these particular families they certainly have no voice. Therefore, it is up the wider community, the Government and the non-government sector to stand up and defend these young people who do not have a voice.

The bill delivers a range of changes, but I will focus specifically on two of them. The first is the removal of a requirement to obtain ministerial approval before undertaking certain Child Death Review Team research programs. I commend the Minister for taking this step. It shows that we are a Government that is willing to bring complete transparency to this process. It is a very serious role. It will ensure that the NSW Ombudsman's office will have full authority to investigate any matter it sees fit without any interference, coercion or direction from the Minister. The second provision is the removal of the requirement for the Child Death Review Team to provide a copy of its draft report to the Minister. Instead, a copy of the final report will be provided to the Minister.

When I read about that change I asked myself why the former Labor Government would want to retain that level of insight or control over a draft report. Why would it want to keep that within its power and influence? Why would it want to reduce the level of perceived transparency in a matter as critical as child deaths? To my mind there can be only one reason: it wanted to paper over the seriousness of what was contained in the report. It wanted to water down the detail and the implications that the report would make public. Shame on the former Labor Government for allowing that to happen—there are now 77 children in this State who no longer breathe and play. They died in dreadful circumstances.

I am proud to be part of an O'Farrell-Stoner Government that is prepared to face up to the tough situations. We are prepared to take a stand. We are prepared to work with all levels of government and all levels of the community to find every way we can to address this horrible scourge on our society. The O'Farrell Government will shine the white-hot flame of transparency through this bill. We will face the truth. We will be willing to see the full report as it stands. I commend Minister Goward for accepting these changes and championing the cause in an absolutely brilliant way. We are determined to stand in the gap and defend our young citizens—babies, boys and girls who do not have a voice—and we will work with every sphere of society to reduce and eventually eliminate this scar on our society's conscience. I commend the bill to the House.

Mr BRAD HAZZARD (Wakehurst—Minister for Planning and Infrastructure, and Minister Assisting the Premier on Infrastructure NSW) [4.26 p.m.]: I strongly support Minister Goward's initiatives and those of the O'Farrell-Stoner Government to complete the transfer of the Child Death Review Team to the NSW Ombudsman, which the Children Legislation Amendment (Child Death Review Team) Bill 2011 will effect. I have been in this place for almost 21 years and during that time I held 18 or 19 portfolios in opposition. The one portfolio that touched me more profoundly than any other portfolio was that of shadow Minister for Community Services. The job of being Minister or shadow Minister in this portfolio area is demanding because it takes you up close and personal to some of the most horrific acts that can be done to our children.

As I sat here and listened to this debate I was thinking of a number of children who died, often in horrific circumstances, and their families. I remember the agony that was occasioned to the families in the aftermath of the deaths of those children. I particularly remember one little girl who died on the Central Coast. I will not name her. The family came from Wollongong. It was a profound breakdown of the duty of care that should have been offered by the Department of Community Services and the mental health team. I am particularly concerned that that family, and other families in similar situations, had to cope with the realisation that the government of the day had done more to cover up the failings of the system over which it presided than to put in place the necessary protections for the children that we are tasked with protecting in this State—the children who are at risk of harm.

When I was shadow Minister and observing and dealing with families that were in the most traumatised of circumstances I saw a Labor Government which, on the face of it, was talking about social justice and purporting to represent families and community, yet took a succession of steps that were more about protecting that Labor Government than about protecting children. For those in this place who do not recollect, in the early 1990s we had a Community Services Commissioner, Robert Fitzgerald, whose task—which he carried out very well—was to advocate on behalf of families in horrific circumstances, often when the Department of Community Services had been unable to look after children at risk of harm. That Labor Government removed the Community Services Commissioner.

At the same time I recollect that the Commission for Children and Young People usually—and I emphasise usually—published child death statistics. Yet I well remember the horrific reality one year of opening the report and finding that the figures on child deaths had completely disappeared from the report. There was no doubt in my mind at that time that the Labor Government of the day had taken a deliberate approach to shut down the transparency, accountability and openness necessary to protect children at risk. That culture permeated the Department of Community Services. Most caseworkers in the Department of Community Services are very fine workers, but the culture at the top was atrocious. I recollect also in my time as shadow Minister seeing reports that had been doctored at middle management level, apparently at the direction, but certainly with the approval, of senior management. That eventually led to two 60 Minutes programs and one Four Corners program in which disclosures were made about the horrific cover-ups that were occurring.

I do not intend to say much more than this. In the first seven months of this Government more has been done under the direction of Minister Goward than I saw in the 16 years of the Labor Government, to introduce accountability, transparency and honesty in the reporting processes. There is no question that the job of this Parliament in protecting children at risk of harm, children who have come under the notice of government agencies, particularly Community Services, is paramount. It is the paramount duty of all members to ensure that children at risk of harm are well looked after. I say to the remaining Labor members who were members in those 16 years that the Government of which they were part should hang its head in shame. There are, probably fortunately, few of them left, because those sorts of actions were all too frequent under the former Government—cover-up, not clean up. It was never a case of actually addressing the underlying fundamental problems.

I am very supportive of this Government's initiative. Across all portfolios, we are seeking to shine the cold, hard light on what occurred behind closed doors. Justice Wood would be proud of the fact that this Government has listened to what he wanted to achieve, and the transfer to the Ombudsman is now complete. It will not be perfect; situations will still occur from time to time. We cannot expect that suddenly the resources issues or any other issues of the Department of Community Services will be solved overnight. But this Government is making a fair dinkum effort. We will make sure that the community knows exactly what has been going on behind closed doors and, more importantly, what is happening now. In that, there is hope that the system will improve.

Mr ANDREW CORNWELL (Charlestown) [4.34 p.m.]: I speak on this important reform bill, the Children Legislation Amendment (Child Death Review Tam) Bill 2011 wearing three hats: those of the member for Charlestown, the father of two young children, and Chair of the Committee for Children and Young People. I thank the vast majority of members who have spoken on this bill for conducting this debate with appropriate earnestness. The objective of the Child Death Review Team is to assist government to prevent and reduce the number of deaths of children from birth to 17 years in New South Wales through data analysis, research, and recommendations. The Child Death Review Team research functions are to: maintain a register of child deaths in New South Wales; classify those deaths according to cause, demographic criteria and other relevant factors; identify patterns and trends relating to the deaths; and make recommendations to government and non-government agencies for the prevention of further child deaths.

It is notable that over the period that the Child Death Review Team has existed there has been a gradual trend downwards in those figures. One of the important things about this reform is that we are not falling into complacency. It is important that we try continually to improve the situation. The Special Commission of Inquiry into Child Protection Services in New South Wales recommended the transfer of responsibility for convening the Child Death Review Team from the Commission for Children and Young People to the Ombudsman. The New South Wales Coalition in opposition strongly supported this transfer. In April 2009 the New South Wales Parliament passed legislation that transferred responsibility for the New South Wales Child Death Review Team from the Commission for Children and Young People to the NSW Ombudsman. The Coalition in opposition proposed amendments to strengthen Labor's bill.

On 4 November 2010 the Ombudsman released the report "Unresolved Issues in the transfer of the NSW Child Death Review Team to the Office of the NSW Ombudsman". The report detailed the difficulties experienced by the Ombudsman due to the incomplete nature of the former Government's transfer. The transfer came into effect on 11 February 2011. The Ombudsman sought legislative and administrative amendments to: enhance efficiencies in the operations of the Child Death Review Team, ensure the Ombudsman's independence is protected in this new role, and create better alignment between the research activities of the Child Death Review Team and his work on reviewable deaths. While the Child Death Review Team is convened and administered by the Ombudsman, it is not part of the independent review and monitoring functions of that office.

The Child Death Review Team exists to assist the Government to prevent and reduce child deaths. The approach is collaborative and advisory. This is distinct from the Ombudsman's watchdog role, where the onus is on providing independent and impartial oversight of government agencies to ensure they fulfil their functions properly. It is appropriate that the review of legislation applicable to the Ombudsman's oversight function should be undertaken by parliamentary committees, rather than by the very same Executive that is being held accountable. The same cannot be said for the Child Death Review Team, whose role is to assist government. The proper place for review of the team's policy objectives is the Executive.

While the bill ensures that the Ombudsman is able to conduct his Child Death Review Team functions with more independence than was the case for the previous convener, it is appropriate that decisions about the team's policy remit remain under ministerial control. I will address a few points raised by Opposition members. The member for Auburn recognised the importance of Justice Wood's recommendations, of which the transfer of the Child Death Review Team to the Ombudsman was one. I also note her recognition of the importance of the Committee for Children and Young People. Currently, the Ombudsman is reporting to two committees, creating an inefficient system without clear lines of authority.

The member for Macquarie Fields reiterated those concerns, asserting that the Committee for Children and Young People had been legislatively emasculated from conducting rigorous inquiries that may require input from the Child Death Review Team. I will point out some facts on this matter. The Commissioner for Children and Young People is a statutory appointee to the Child Death Review Team. The commissioner reports to the Committee for Children and Young People. Therefore, the commissioner can still report to the committee on matters within the remit of the Child Death Review Team. Also, like all parliamentary committees, the Committee for Children and Young People can call the Ombudsman to report to, and provide evidence to, a parliamentary inquiry. The Committee for Children and Young People will continue to conduct its work in the same rigorous manner it has always done.

I refer now to the breathless hyperbole from the member for Keira. Rather than speak to the substance of the bill, as the member for Macquarie Fields and the member for Auburn did, he stood at the lectern full of faux outrage and sanctimonious puffery complaining that these reforms have appeared suddenly. In April 2009 the Parliament passed legislation to remove the Child Death Review Team from the Commission for Children and Young People to the Ombudsman. On 4 November the Ombudsman released his report outlining that his dual lines of reporting were causing problems. We committed to this reform during the election; this is not a new proposal. The member for Bankstown continued the criticism of the bill, stating that it was being rushed through. She implied that we were not supporting children. I take this opportunity to advise the House that the previous Committee for Children and Young People was unable to fulfil its statutory responsibilities last year because the then Premier prorogued Parliament. If the former Government was so committed to the Committee for Children and Young People, perhaps it would have considered at what stage its reporting program had reached before shutting down Parliament, thus rendering the committee unable to discharge its responsibilities. The crocodile tears being shed by a few Opposition members are either through ignorance or hypocrisy. I urge the Opposition to reconsider its objection to the bill. I place on record my admiration for the work the Commission for Children and Young People carries out under the guidance of its commissioner, Megan Mitchell. While these changes finally complete the separation of the Child Death Review Team from the commission, in no way does it reduce the team's ability to continue to make its valuable contribution to the children of New South Wales.

Ms PRU GOWARD (Goulburn—Minister for Family and Community Services, and Minister for Women) [4.41 p.m.], in reply: I thank members for their contributions to the debate and for their support for the Children Legislation Amendment (Child Death Review Team) Bill 2011. This bill will facilitate the important work of the Child Death Review Team to reduce and prevent the deaths of children and young people in New South Wales. The Coalition signalled this uncontentious piece of legislation in opposition and in the early days of taking office after the election. The report of Justice James Wood, containing these recommendations, was tabled in the Parliament and received bipartisan support. Only later did the former Government pay lip-service to Justice James Wood while squiggling and wiggling on the stick because of ongoing resentment towards an Ombudsman who persisted in exercising his independence. That is the point we have reached today. I cannot think of any opposition in a Western democracy that has not welcomed the opportunity for more open and accountable scrutiny of a government, and more independence. I cannot imagine any other Australian opposition knocking back the chance to have more open access to government information. But the New South Wales Opposition is a bit different. After 16 years in government the Labor Opposition still thinks its job is to keep the veils of secrecy over public administration in this State and to stop people from knowing what is going on. Obviously, the New South Wales Opposition has forgotten that in this instance it will stop itself from knowing what is going on. How extraordinary and rare that the Opposition wants less scrutiny, less independence and less opportunity to interrogate the workings of the government of the day—certainly it has achieved a first. The Opposition has always known that this would be the end result. From the time we first responded in Parliament to the amending bill, the Opposition knew that we held these objections, as did the Ombudsman, who was so professionally offended by the nature of the legislation that he felt compelled to release a report in November last year on the unfinished business of the Child Death Review Team. This bill takes nothing from the Commissioner for Children and Young People, but reminds us of the clear reasons Justice Wood recommended the Ombudsman as the preferred carrier, team manager and leader for this important work. Of course, that relates to the high levels of independence enjoyed by the Ombudsman of New South Wales—indeed, ombudsmen more generally in Australia. The faux outrage—as described by the member for Charlestown—was that the bill was introduced without enough notice. I would have thought that 18 months and debate in the media was enough notice. When a bill gives an opposition more access to information than it began with, I would have thought it would be very happy for the bill to pass quickly. When all the faux outrage was over, what were the Opposition's arguments and reasons for opposing the bill that would provide more independent and public scrutiny regarding the deaths of vulnerable children? My goodness, it did not attack the independence of the process, or that it would enable the Ombudsman to be more independent of government because that would have drawn attention to its own role in denying him his independence. The Opposition's fundamental issue was which parliamentary committee was best placed to oversight the team. The member for Auburn, and shadow Minister, began by expressing her concern that the Child Death Review Team should report to the parliamentary Committee for Children and Young People because one of its members was a paediatrician. We all love Dr Andrew McDonald and I am grateful that a member of that committee is a paediatrician. But the Opposition knows, or needs to know, that our reporting functions for independent statutory bodies cannot be constructed on the basis of committee memberships from term to term. That is not how it is done. Perhaps the member for Auburn needs to reconsider public administration in practice, if not in theory, if she considers that a valid argument.

The second argument raised by the member for Auburn was that the team should report to the Committee for Children and Young People because that committee has the expertise. No mention is made of the incredible work done by the parliamentary Committee on the Office of the Ombudsman and the Police Integrity Commission. Expertise is as expert as its members and we thank each member of the Committee for Children and Young People, chaired by our own wonderful member for Charlestown, for their expertise. But expertise does not decide which committee oversights the work of an independent body; that decision lies in the term "oversight". Who is best suited to oversight a function of a body such as the Ombudsman with a particular level and standard of independence from government? Clearly, it is the committee that oversees other aspects of the non-government or independent body system of government, such as the Police Integrity Commission and the other responsibilities of the Ombudsman.

I state clearly that the alternative was to have the Ombudsman report to one committee on some of his functions—a committee that appreciated the independence of the Ombudsman and the Police Integrity Commissioner. Through that framework the committee will oversight the work of the Ombudsman. The Child Death Review Team, under the old arrangements, would expect the Ombudsman to report to another committee under a completely different definition of independence and a different accountability framework. This bill confirms the Ombudsman's level of independence from government, which is what Justice Wood wanted it to do. That is why Justice Wood recommended that the Ombudsman be the convener of the Child Death Review Team.

If the Ombudsman is to be the convener, because of the importance of acquiring and employing his independence to improve and expand on the level of scrutiny, the parliamentary committee to which he or she reports should work in that same framework and at the same level of independence. If that is not what occurs the question that would have to be asked is: What level of independence does the Ombudsman have to meet to carry out his functions as the convener of the Child Death Review Team? That is what the amending bill was supposed to do. This amending bill will refer those matters to the Committee on the Office of the Ombudsman and Police Integrity Commission, which means that the Ombudsman's level of independence will be applied consistently to all his work, which will be supervised or overseen by the appropriate parliamentary committee. This will take nothing away from the wonderful work that is being done by the Committee on Children and Young People.

This bill will ensure consistency—a point that I hoped was perfectly obvious to Opposition members. It is apparent to me why Opposition members oppose this legislation. This is an opportunity for them to get back at the Ombudsman who dared to criticise the way in which the former Government ran this State. Opposition members want to ensure that he will be required to answer to a lower level of independence than this Government considers appropriate. As a statutory member of the Child Death Review Team the Commissioner for Children and Young People has every opportunity to answer to the Committee on Children and Young People and that committee can call the Ombudsman before it if it conducts an inquiry. As I said in my opening remarks, the bill makes it clear that:

        ... a member of the [Child Death Review] Team makes the disclosure to any person, body or organisation for the purpose of obtaining information, advice or comments in connection with draft reports prepared by the Team ...


Nothing in this bill prevents the Child Death Review Team or the Ombudsman from being exposed to other parliamentary committees. What is at issue is who oversights this work, which is why we are conferring this level of independence on the Child Death Review Team, through the Ombudsman, who is now leading that team. The Opposition cannot overlook this important point: The Child Death Review Team will be headed by the most independent officer that we have in this area who, without fear or favour, or the suggestion of a political wink and a nudge, will do the work that needs to be done, thus ensuring maximum scrutiny, debate and transparency in the driving of reform. Government members have always said that the best motivator for reform is scrutiny and the discomfort of criticism. Sadly, the member for Macquarie Fields is still fighting the old war. He is still insisting that the Commissioner for Children and Young People should be the convener of the Child Death Review Team. I thought we had sorted out that issue a year ago and Justice Wood sorted out that issue more than a year ago. Justice Wood saw the need for a transparent mechanism to drive change and reform, which is why he recommended these changes. Even though there is bipartisan support for this bill and Justice Wood's findings, it is sad that the member for Macquarie Fields has reverted to fighting an old war. That is a naïve argument from the member for Macquarie Fields, who once was a member of the Child Death Review Team. From time to time all members of this place have been members of other institutions. However, one's personal experience does not detract from the findings of a special commission of inquiry that has bipartisan support.

This report reflects the work of a respected member of the judiciary and those who supported and advised him. In future the Opposition's mantra should not be, "I was on it and it was okay when I was on it so let us not change it." Perhaps that mantra could be changed to, "It could be better". The legislative changes that have been made today will provide the Ombudsman with the necessary framework to carry out his or her functions on the Child Death Review Team. That team will be able to carry out its tasks with greater efficiency and the appropriate level of independence and scrutiny for the greater good of the people and children of New South Wales. I thank the staff in the Ombudsman's office for their advice. I also thank my staff, in particular, my chief of staff, Anthony Bencher, and Penny George and all those who have had such a committed and devoted interest in this subject. I commend the bill to the House.

Question—That this bill be now agreed to in principle—put and resolved in the affirmative.

Motion agreed to.

Bill agreed to in principle.

Passing of the Bill


Bill declared passed and transmitted to the Legislative Council with a message seeking its concurrence in the bill.  (Source : http://www.parliament.nsw.gov.au/prod/parlment/hansart.nsf/V3Key/LA20111019029?open&refNavID=HA8_1)

Australian Crime Code S271.6 - Aggravated offence of domestic trafficking in persons

             (1)  A person (the first person) commits an aggravated offence of domestic trafficking in persons if the first person commits the offence of domestic trafficking in persons in relation to another person (the victim) and any of the following applies:

                     (a)  the first person commits the offence intending that the victim will be exploited, either by the first person or by another, after arrival at the place to which the person has been transported;

                     (b)  the first person, in committing the offence, subjects the victim to cruel, inhuman or degrading treatment;

                     (c)  the first person, in committing the offence:

"Surrogacy Bill 2010"

 Page: 27599

 Consideration in Detail

[Business resumed.]

Ms PRU GOWARD (Goulburn) [6.30 p.m.]: In addition to the reasons the Minister advanced for including in this bill and specifically outlawing international commercial surrogacy, certainly we are obliged to ensure that all children understand clearly their heritage and parentage. The strong moral reason for supporting this amendment is the exploitation of women in countries such as India and parts of Asia where the sex trade and organ sale industries flourish. Sadly, the surrogacy industry in particular would be attractive to women in those extremely poor countries. No doubt it would be an issue of conflict for them, but it says very little about Australia and its values if we are prepared to outlaw the exploitation of Australian women for the purposes of commercial surrogacy but we are not prepared to outlaw the exploitation of women in poor, developing countries for exactly the same purpose.

Women are not cows; they are not animals and their job is not to bear children for money because other people want children. If it is good enough to ensure that Australian women cannot be exploited commercially for this purpose, out of respect for women around the world—particularly the vulnerable women of Asia and other countries where commercial surrogacy flourishes—we should be particularly mindful that if we do not support this amendment, effectively we are saying that there is one rule for our women and another rule for women in poor countries. That is not good enough. Whilst this Parliament does not have a leading role in international relations and affairs, it should, as much as it is able, uphold Australian values, which must mean respect for all and the rights of all to live lives free of exploitation. Voting the right way will reflect our commitment to women in those poor countries and reinforce their rights as human beings.

Question—That the amendment of Ms Linda Burney be agreed to—put and resolved in the affirmative.

Amendment of Ms Linda Burney agreed to.

Question—That clauses 11 to 27 be agreed to—put and resolved in the affirmative.

Clauses 11 to 27 agreed to.

Mr FRANK SARTOR (Rockdale—Minister for Climate Change and the Environment, and Minister Assisting the Minister for Health (Cancer)) [6.33 p.m.]: I move my amendment:

        No. 1 Page 13. Insert after line 8:

28 Maturity of younger intended parent must be demonstrated

(1) If an intended parent was under 25 years of age when the surrogacy arrangement was entered into, the Court must be satisfied that the intended parent is of sufficient maturity to understand the social and psychological implications of the making of a parentage order.

(2) An intended parent who was under 25 years of age when the surrogacy arrangement was entered into must provide evidence to the satisfaction of the Court:

            (a) that he or she received counselling from a qualified counsellor about the surrogacy arrangement and its social and psychological implications before entering into the surrogacy arrangement, and

(b) that the counsellor was satisfied that he or she was of sufficient maturity to understand the surrogacy arrangement and its social and psychological implications.

        (3) This precondition is a mandatory precondition to the making of a parentage order.

(4) This precondition does not apply to a pre-commencement surrogacy arrangement.

(5) If the Court grants leave to an intended parent to make a sole application in respect of a surrogacy arrangement that involves 2 intended parents, it is not necessary to establish that the intended parent who is not a party to the application meets this precondition.

As I said in my earlier comments, risks are associated with surrogacy and any law cannot foresee or address all of those risks. Clause 26 provides for a birth mother to be at least 25 years of age unless the court grants otherwise. I have added in clause 27 that the intended parents must be 18 years of age when they enter a surrogacy agreement. Given the risks outlined in my earlier comments, I propose an amendment that prescribes additional conditions on intending parents where they are over 18 but under 25 years. Clause 28 will require that the maturity of the younger intending parents be demonstrated to the satisfaction of the court and be the case at both the time of the application for a parentage order and when the preconception surrogacy agreement was entered into. The court can still grant a parentage order for people under 25, but this amendment is an added safeguard. In my agreement in principle speech I listed the range of significant evidence that maturity occurs in the mid-twenties. We also recognise New South Wales driving laws as an example of that maturity. On the basis of the precautionary principle, I move that the amendment be accepted.

Question—That the amendment of Mr Frank Sartor be agreed to—put and resolved in the affirmative.

Amendment of Mr Frank Sartor agreed to.

Question—That clauses 28 to 58 be agreed to—put and resolved in the affirmative.

Clauses 28 to 58 agreed to.

Question—That schedules 1 and 2 be agreed to—put and resolved in the affirmative.

Schedules 1 and 2 agreed to.

Consideration in detail concluded.

Passing of the Bill


Dr ANDREW McDONALD (Macquarie Fields—Parliamentary Secretary) [6.40 p.m.], on behalf of Ms Carmel Tebbutt: I move:

        That this bill be now passed.


The House divided.

Ayes, 53
Mr Ayres
Mr Baird
Ms Berejiklian
Mr Besseling
Mr Borger
Mr Brown
Ms Burney
Ms Burton
Mr Campbell
Mr Collier
Mr Constance
Mr Coombs
Mr Corrigan
Mr Costa
Mr Daley
Ms D'Amore
Mr Debnam
Ms Firth
Mr Furolo
Ms Gadiel
Ms Goward
Mr Greene
Mrs Hancock
Ms Hay
Mr Hazzard
Mr Hickey
Ms Hodgkinson
Mrs Hopwood
Ms Hornery
Ms Keneally
Mr Lalich
Mr Lynch
Dr McDonald
Ms McKay
Mr McLeay
Ms McMahon
Ms Megarrity
Ms Moore
Mr Morris
Mr O'Farrell
Mr Pearce
Mr Piper
Mr Provest
Mr Rees
Mr Sartor
Mr Stokes
Ms Tebbutt
Mr Terenzini
Mr Tripodi
Mr R. W. Turner
Mr Whan
Tellers,
Mr Ashton
Mr Martin

Noes, 27
Mr Amery
Ms Andrews
Mr Aplin
Mr Aquilina
Mr Baumann
Mr Cansdell
Mr Dominello
Mr Draper
Ms Fardell
Mr Fraser
Mr Harris
Mr Hartcher
Ms Judge
Mr Kerr
Mr Khoshaba
Mr McBride
Mr Merton
Mr O'Dea
Mrs Perry
Mr Richardson
Mr Roberts
Mr Shearan
Mr Smith
Mr West
Mr R. C. Williams


Tellers,
Mr George
Mr Maguire

Question resolved in the affirmative.

Motion agreed to.

Bill passed and returned to the Legislative Council with a message requesting its concurrence in the amendments.  (Source : http://www.parliament.nsw.gov.au/prod/parlment/hansart.nsf/V3Key/LA20101110031?open&refNavID=HA8_1)

"Western Australia's new Mental Health Bill for Children, making Sterilisation, Psychosurgery and Electric Shock Okay! --- Completely violating the International Covenant on Childrens Rights"

rights-of-the-childChildren of any age will be able to consent to Sterilisation: If a psychiatrist decides that a child (under 18 years) has sufficient maturity, he or she will be able to consent to sterilisation. Parental consent will not be needed. Only after the sterilisation procedure has been performed does it have to be reported and then only to the Chief Psychiatrist. [Pages: 135 & 136 of the Draft Mental Health Bill 2011]

12 year olds will be able to consent to psychosurgery -- WTF! Banned in N.S.W. and the N.T., psychosurgery irreversibly damages the brain by surgery, burning or inserting electrodes. This draft bill proposes to allow a 12 year old child, if considered to be sufficiently mature by a psychiatrist, to be able to consent to psychosurgery. Once the child has consented it goes before the Mental Health Tribunal (MHT) for approval. Parental consent is also not needed for the MHT to approve the psychosurgery. [Pages: 108, 109, 110, 197,198, 199, 213]

12 year olds will be able to consent to electric shock treatment (ECT): Electroshock is hundreds of volts of electricity to the head. Any child aged 12 and over, whom a child and adolescent psychiatrist decides is "mature" enough, will be able to consent to electroshock. Also, once consent is given, there is no requirement for parents or anyone, including the MHT, to approve the electroshock. Electroshock should be banned. Its use on the elderly, pregnant women and children is especially destructive. [Pages: 100, 101, 103, 104, 194, 105]

The Director-General’s obligation to disclose corrupt conduct

Under the Independent Commission Against Corruption Act 1988, the Director-General has a responsibility to report certain forms of corrupt conduct to the Independent Commission Against Corruption (ICAC).

Corrupt conduct involves the misuse of public office, for example:

• dishonesty
• partiality (ie. bias)
• breach of trust (ie. misuse of one’s position), or
• misuse of government information where such conduct could amount to a criminal offence, a disciplinary offence or give reasonable grounds for dismissal of a staff member.

"Children and Young Persons (Care and Protection) Amendment Bill 2010"

Page: 28209
Agreement in Principle

Debate resumed from an earlier hour.

Ms PRU GOWARD (Goulburn) [9.11 p.m.]: I lead for the Opposition on the Children and Young Persons (Care and Protection) Amendment Bill 2010. The Opposition does not oppose the bill but reserves the right to amend it in the other place should the information foreshadowed to be soon provided confirms that that is necessary. We join with others on our side of the House in lamenting the lateness of the introduction of a bill that appears to be, in a general sense, intended to clarify and reinforce existing aspects of the Act and does not have policy implications of any great significance. However, I certainly agree with the Minister's observation that the Wood inquiry recommendations and the legislative response to them was a complex process. Obviously some of these amendments tidy up the parts of the amending bill we passed earlier that have proven to be more uncertain than we had thought.

The bill deals with a number of issues, primarily the issue of voluntary out-of-home care when that care is provided for more than 90 days in the course of a year. This bill makes clear that it is not 90 consecutive days, which has been a way of, in a sense, getting around the intent of the original legislation. With regard to voluntary out-of-home care, I understand the bill is primarily intended to reflect arrangements for children with disabilities whose parents require respite care. When respite care occurs on more than 90 days a year it can no longer be viewed as an informal arrangement of no long-term consequence to the child.

Obviously, it is not about the kindly neighbour or relative who has the child stay for the occasional weekend. Ninety days a year is obviously a significant part of the child's life and respite care arrangements therefore need some regulation. Clearly, the provision is intended to apply not to children who are removed by statute but to arrangements where the custodians, usually parents, voluntarily relinquish care of their child for certain periods totally more than 90 days each year. Quite rightly, the bill reflects that more formal and ongoing arrangements have obvious implications for the child's wellbeing and safety from abuse or neglect during that time. I refer to the Minister's agreement in principle speech, in which she said:

        The bill makes a number of amendments to improve the protections afforded to children and young people in voluntary out-of-home care. These changes are important not least because many of these children have disabilities, and so are particularly vulnerable.


That is a concern shared by the Opposition, and in that sense the bill is a welcome attempt to provide protections for these children while in voluntary care. I understand that some of the amendments were prompted by the concerns of the Children's Guardian, and I accept the word of the Government in advising that that is the case. If it proves to be otherwise, obviously that will reflect on our response to the bill in the other place. The Opposition supports the importance of ensuring that care providers in these circumstances are properly vetted and their organisations are sufficiently regulated to protect the child's interests. The Minister further said in her agreement in principle speech:

        The Act currently only applies to care arranged between a parent and a designated agency or an agency registered by the Children's Guardian. The new definition will apply more broadly.


The amendment at clause 9 of the bill defines voluntary out-of-home care with reference to the nature of the care provided rather than to the accreditation or registration status of the care provider, ensuring that the definition extends to children in the care of organisations that are currently operating unlawfully. The bill also includes new provisions that make it an offence for unaccredited or unregistered organisations to provide or arrange voluntary care, so that any organisation that is operating unlawfully can now be dealt with. I understand that that was intended in the original bill, but it is now being made explicit. I am sure these changes will be welcomed by the parents of children with disabilities who from time to time seek respite care. I am sure those parents will also welcome the change at schedule 2.3, which repeals an uncommenced amendment that penalises a parent if a child is placed with an unaccredited agency.

The bill gives responsibility for voluntary care explicitly to the Children's Guardian. I understand that this change has been driven by the Children's Guardian. The exception to this is the supervision of children with disabilities. The Department of Ageing, Disability and Home Care will provide that supervision when a registered agency chooses not to contract with a designated non-government agency to take on that role. I presume it is intended that that will capture all the voluntary care of children covered by the Act. Overall, the bill appears to attempt to ensure that regular voluntary care—that is, respite care—is part of the same regulatory regime that applies to all other kinds of out-of-home care. I note that the exception to this is out-of-home care provided by the Department of Community Services—which, as we know, is not accredited. Despite this, the inclusion of respite care in this regime should provide a greater level of comfort to parents and children as well as deliver a better standard of care. The bill gives the accredited organisation the right to restrain the child when this is necessary for the safety of the child or that of others, again in line with the rights of other out-of-home care providers. Schedule 1 [17] of the bill makes it clear that financial assistance is available to carers of children or young people who have primary responsibility for that person or persons. It is well understood that foster carers are entitled to financial assistance, but the bill clarifies that entitlement explicitly for those providing emergency care, which may be only of a few days or weeks duration but nonetheless represents a financial cost to the carer. If the Minister needs to clarify that point, I would be grateful if she would do so in her reply.

Items [18] and [19] of schedule 1 will, I believe, be welcomed by adults who have left the foster care system. The provisions entitle an adult who has been in out-of-home care while he or she was a child or young person to free access to his or her personal information held by certain persons or bodies. I think that reflects the Government's graceful recognition that these people should no longer have to pay to access their own files. Indeed, allowing them free access to their files and information will ensure peace of mind for these adults, so many of whom are traumatised by the circumstances of their out-of-home care, as we have often acknowledged in this place. I believe schedule 1 [21] is a very welcome amendment. It enables the Children's Guardian to share information with others and to seek information from others. That is all part of recognising that for these children the best care can really only be ensured when there is a coordinated response, and a coordinated response very much relies on the sharing of information.

Schedule 1 [22] expands the current regulation making powers in relation to probity checks—another very welcome improvement to the bill. Schedule 1 [24] provides that decisions relating to the making and implementation of permanency plans for children and young people are not decisions reviewable by the Administrative Decisions Tribunal, which is very sensible. I ask the Minister to clarify in reply that the removal of a child can still be heard by the Administrative Decisions Tribunal but not the nature of the parental responsibility orders. I understand the distinction being made is that the Administrative Decisions Tribunal is still able to deal with that.

The Opposition welcomes schedule 1 [25] as we are increasingly aware of the close connection between the Family Court and the Children's Court and the way these cases often bounce between them. Schedule 1 [25] includes the Family Court of Australia as a Commonwealth agency for the purpose of the exchange of information and coordination of services. Centrelink was already included. I know from dealing with the cases that come to my office that the addition of the Family Court of Australia will be a very welcome inclusion. Finally, the overall intent of the Act is to finetune those aspects of the original response to the Wood report that time has proven were in need of either clarification or confirmation. As I said to the Minister's adviser when we were discussing this, some people might have inferred that these arrangements were as we understand them now from this bill. This makes it explicit. The Opposition does not oppose the bill.

Mr BARRY COLLIER (Miranda—Parliamentary Secretary) [9.21 p.m.]: I am pleased to speak in support of the Children and Young Persons (Care and Protection) Amendment Bill 2010. I speak to a number of the amendments to be brought about by the bill, which seeks to bring clarity and in turn strengthen the relationship and role of police in child protection practice. Firstly, this bill will amend section 29(6) of Children and Young Persons Care and Protection Act 1998 to add definitions of "serious offence" and "reportable conduct". This will help clarify for both Community Services and law enforcement agencies those rare circumstances when the identity of a reporter may be disclosed to police. This disclosure is only permitted in connection with the investigation of a serious indictable offence or reportable conduct alleged to have been committed or done against a child or young person.

Currently, section 29(4A) permits Community Services to disclose to police the identity of a person who makes a risk of significant harm report so that they are able to investigate a serious offence committed upon a child or young person, where that might impact on a child or young person's safety, welfare or wellbeing. However, the Children and Young Persons Care and Protection Act is silent as to what constitutes a "serious offence", and both Community Services and law enforcement agencies need certainty about the types of offences that constitute a serious offence to ensure that reporters' identities are not disclosed unnecessarily. The definitions contained in the bill include "serious indictable offences" as defined in the New South Wales Crimes Act and "reportable conduct" as defined in the Commission for Children and Young People Act 1998. Serious indictable offences are those indictable offences punishable by imprisonment for life or for a term of five years or more—for example, murder, kidnapping and sexual assault.

Reportable conduct includes a range of serious offences against children and young people, such as sex and child pornography offences, offences or misconduct involving child abuse material, child-related personal violence offences, such as intentionally wounding a child, voyeurism and related offences, any assault, ill-treatment or neglect of a child, and any behaviour that causes psychological harm to a child. Inclusion of a definition in the legislation will streamline the decision-making process for Community Service officers and police, ensure that there is a consistent approach to the provision of information to police, and hopefully make for quick resolution of any issues.

The Children and Young Persons Care and Protection Act provides that the director general or a police officer may enter premises and remove a child or young person if they are satisfied on reasonable grounds that the child or young person is at immediate risk of serious harm, and the making of an apprehended violence order would not be sufficient to protect the child or young person. The immediate aim of this power is to remove a child or young person from danger. However, as is right and proper, the matter must then be brought before a court and the director general must establish to the satisfaction of the court that the child or young person was at risk of significant harm. The Children and Young Persons Care and Protection Act as presently drafted does not clearly allow the person removing the child or young person, usually a police officer, to gather evidence, including taking photographs, video or other recordings while removing the child or young person.

The proposed amendment to section 241 of the Children and Young Persons Care and Protection Act will allow evidence of the circumstances in which the child or young person came to be exposed to a risk of significant harm to be gathered at the time that the child is removed. This will provide the best evidence to the court so that the best decision about what is to happen to the child or young person can be made, and will lessen the probability that a child or young person will be returned to an unsafe situation. As we heard in the Minister's agreement in principle speech, the gathering of the best possible evidence is in everyone's interests, particularly those of the child or young person. I congratulate the Minister for Community Services on the bill. I have pleasure in commending the bill to the House.

Ms LINDA BURNEY (Canterbury—Minister for the State Plan, and Minister for Community Services) [9.25 p.m.], in reply: I thank the member for Goulburn and the member for Miranda for their contributions to this debate. In my brief response I will clarify the two issues raised by the member for Goulburn. This bill clearly shows that the Government is committed to ensuring the safety of children and young people in New South Wales. The bill includes a number of legislative amendments to clarify and make more workable the operation of the Children and Young Persons Care and Protection Act 1998; the legislation that underpins the work of Community Services NSW.

These amendments will finetune changes brought about through the recommendations of the Special Commission of Inquiry into Child Protection Services in New South Wales, referred to by the member for Goulburn, and ensure that the implementation of the recommendations of the Special Commission of Inquiry are effective in keeping children and young people safe. Other amendments are also included, which will strengthen casework practice, clarify court procedures, and expand the regulation-making powers with respect to Children's Services.

I turn first to the recommendations arising from the special commission of inquiry. One of the most significant changes to child protection and out-of-home care services in New South Wales is the new scheme for the provision of voluntary out-of-home care. The amendments contained in this bill will make clear the oversight role of the Children's Guardian in ensuring the safety of children and young people in voluntary out-of-home care placements and clarify the operations of the new scheme. The member for Goulburn is absolutely correct that many of these clarifications and amendments have resulted from the views of the Children's Guardian.

In respect of the voluntary out-of-home care scheme, some of the key amendments contained in the bill include: making clear the definitions used in respect of voluntary out-of-home care; clarifying that the statutory time frames are to be calculated as cumulative days in a 12-month period and not a single continuous period; strengthening the penalty regime; enabling the Children's Guardian to register organisations providing voluntary out-of-home care, and having sufficient power to monitor those agencies; requiring the Children's Guardian to determine which breaches of statutory time frames must be reported to Community Services; and extending the provisions that apply in respect to physical restraint of a child or young person in statutory or supported out-of- home care to voluntary out-of-home care.

Another recommendation of the special commission of inquiry included the requirement that Community Services apply to the Children's Court no later than 72 hours after a child or young person has been removed or assumed into care. This bill clarifies the 72-hour time frame refers to working days and that in periods of extended holidays, such as Christmas and Easter, the application will be filed within five days or on the first working day thereafter. The bill also includes other amendments aimed at improving general casework practice and court procedures. These amendments include removing the prohibition on the admissibility of child protection reports in proceedings under the Commonwealth Family Law Act 1975, the Supreme Court, Coroner's Court, Administrative Decisions Tribunal, Victims Compensation Tribunal and Guardianship Tribunal matters.

A further amendment clarifies that the disclosure of the identity of the person who makes a report about a child or young person is not unlawful if it is disclosed in connection with the investigation of a serious indictable offence or reportable conduct alleged to have been committed or done against a child or young person. The bill makes clear that the Administrative Appeals Tribunal does not have the jurisdiction to review and make findings as to whether a permanency plan has been appropriately and adequately made. This jurisdiction lies with the Children's Court. Further amendments clarify those circumstances where the Children's Court may make an order to give effect to a care plan without the need for a care application, clarify that a person authorised under the care Act or regulations or by a search warrant issued under the care Act has the power to take photographs and other recordings during the removal of a child or young person from a premise or place, and ensure that adults who were in care of a child or young person are able to access their records free of charge.

In relation to the regulation of children's services, the bill extends the regulation-making power to enable regulations to be made in respect to probity checks on persons involved in the provision of children's services. The member for Goulburn raised an issue about the eligibility of carers for financial assistance. Carers who care for children will be eligible for financial assistance and relatives who have been given parental responsibility also will be eligible for financial assistance.

Ms Pru Goward: Is that in emergencies as well?

Ms LINDA BURNEY: Yes. The member for Goulburn also raised an issue about the Administrative Decisions Tribunal. Section 245 of the Act ensures that the Administrative Decisions Tribunal can renew the removal of a child. This bill clearly demonstrates the Government's commitment to building on the important measures aimed at strengthening the child protection system in New South Wales, which arose from the special commission of inquiry. In particular, the amendments to improve the protection afforded to children and young people in voluntary out of home care are welcomed because many of these children have disabilities and are particularly vulnerable. The other amendments in the bill are aimed at clarifying and improving the workability of the legislation, which underpins the important child protection work undertaken by Community Services and reflects the Government's continued commitment to improving child protection systems in New South Wales. I commend the bill to the House.

Question—That this bill be now agreed to in principle—put and resolved in the affirmative.

Motion agreed to.

Bill agreed to in principle.

Passing of the Bill


Bill declared passed and transmitted to the Legislative Council with a message seeking its concurrence in the bill.  (Source : http://www.parliament.nsw.gov.au/prod/parlment/hansart.nsf/V3Key/LA20101124045?open&refNavID=HA8_1)

"Highlights of the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012"

Click to View the Judicial Misbehaviour Bill 2012Just recently Australia has introduced a bill regarding Judicial Corruption designed to address corruption by judges and magistrates and other officers of the court. To quote "A Bill for an Act to provide for parliamentary commissions to investigate allegations of judicial misbehaviour or incapacity, and for related purposes".  This is great, except for the fact that the bill in itself is corrupt in that it is so discriminatory toward any parent and family undergoing any investigation to which the judicial officer eventually hears about.  What do we mean by this ??  Well, first of all ..

"The Commonwealth is liable for the reasonable costs of legal representation for a Commonwealth judicial officer in relation to whom an investigation is being conducted. Witnesses are entitled to be reimbursed for their expenses." -- discriminatory, you bet.  When are parents undergoing the scrutiny of child protection ever afforded legal aid straight up let alone without even having to apply.  Why is this person automatically entitled to and afforded legal protection when the Australian public is not, and it is merely an investigation, not a court procedure.