2016-03-16
NINA SPRINGLE: The Greens support this bill. We support any measure that will result in better protection and better outcomes for children in the child protection system, but it probably will not surprise many people in the chamber that the Greens believe that this bill does not go far enough. But it does do something. I will get to the specifics of the bill in a minute, but firstly I would like to say how appreciative I am that finally an Andrews government minister has committed to the record this government's support for the 2014 so-called permanency reforms that were introduced by the previous government. When he introduced this bill in the lower house the Minister for Housing, Disability and Ageing confirmed, and I quote, that:
None of these amendments represent a change in policy or intent.
If the government did want to change the substance of the policy enacted by the 2014 reforms, presumably it would have done so with this bill. This is the first blatant verbal confirmation we have had that this government supports the 2014 reforms. I am appreciative of that contribution because since I have been a member of this house the Minister for Families and Children has been giving very ambiguous signals about the 2014 amendments. She has essentially been having a bob each way. In her contribution to the second-reading debate when the 2014 amendments were introduced Ms Mikakos, the then shadow minister, identified most of the problems that the Greens also identified. She lambasted the then minister again and again for introducing a bill that, in her own words, reflected a lack of consultation and was going to, and I quote:
… restrict the ability of the Children's Court to oversee the actions of the Department of Human Services … at a time when the department is clearly failing children in out-of-home care.
From her position in opposition Ms Mikakos quoted approvingly and at length from an opinion piece by James Campbell in the Herald Sun headed 'Bill is bad news for vulnerable children'. She said:
I think James Campbell hits the nail on the head.
For a moment it looked as though the then opposition was going to vote against the reforms because they were not based on the Cummins review, because they were not drafted in consultation with the sector and because they were, and I quote again, 'bad news for vulnerable children', but then the Labor opposition voted in favour of the bill.
Soon after that the Labor Party won the election and the shadow minister became the minister. She has now had well over a year to correct the many flaws in the 2014 amendments that she identified in her second-reading contribution that year. To her credit she has corrected one of those flaws, but in choosing not to correct all of the other flaws the minister has implicitly shifted her position to one of support for those other flaws she identified. She has never actually said she supports the 2014 so-called permanency reforms, so I am appreciative of Minister Foley for his acknowledgement that the current bill does not change policy.
This is now the third bill introduced by this government that amends the Children, Youth and Families Act 2005, and given that it has declined all three times to restore the Children's Court's oversight powers, which were lost when the 2014 amendments came into effect last Tuesday, we must now assume that this government's policy is to allow the Department of Health and Human Services to operate with this reduced level of oversight and accountability. As the Minister for Housing, Disability and Ageing has said, there are not many provisions in this bill which aim to alter policy. Clause 27 is one that does. Clause 27 would require the Secretary to the Department of Health and Human Services to disclose to the Commission for Children and Young People any information about what the bill calls an adverse event in relation to a child in the care of the state. The Greens wholeheartedly support anything that will improve accountability and the safety of children within the child protection system, so the Greens are of course in favour of this clause.
'Adverse event' is the kind of language that is used in bureaucracy to avoid expressing the sheer horror of its meaning. There is no definition of adverse event in this bill, in either of the acts it intends to amend, in the explanatory memorandum or in Minister Foley's second-reading speech. Of course we can make an educated guess as to the meaning of adverse event. There were 865 quality-of-care investigations in relation to children and young people in out-of-home care during 2014–15, and abuse was substantiated in a staggering 106 of them. We should pause for a moment to reflect on that number. On at least 106 occasions during 2014–15 children who had been removed from their homes because of concerns they would be exposed to harm were subjected to abuse in the very places they were supposed to be kept safe. That is from the department's last annual report, which merely reports figures and does not convey any sense of what abuse in out-of-home care looks like.
We have to go to the Commission for Children and Young People's report last year into residential care facilities for children to begin to get a true sense of what might he meant by the phrase 'adverse event'. As a good parent would report, the commission analysed the department's critical incidents reports for one year, during which there were 189 reports of alleged incidents of sexual abuse and sexual exploitation relating to 166 children in residential care units. There were some truly shocking incidents of sexual abuse investigated by the commission: a 12-year-old intellectually disabled boy was sexually abused by older children; an 8-old-girl was sexually assaulted by a 14-year-old boy; and 15, 16 and 17-year-old girls were reportedly sexually assaulted or abused by male residential care staff. Again we have to remember that these are children who have been removed from home because of the risk that they would be subjected to harm at home. Presumably these are among the adverse events that would be referred to the commission by the department under the proposed new section 60A of the Commission for Children and Young People Act 2012.
The Commission for Children and Young People is an immensely invaluable institution, which in its short life has proven itself to be absolutely committed to its functions and to promoting the best interests of the child. But the commission's powers are not the same as the Children's Court's powers.
The commission's powers are limited largely to conducting reviews and making recommendations. It does not have the power to make binding orders like the Children's Court does. Clause 27 is certainly not going to resolve all the outstanding issues in the so-called permanency reforms of 2014, which came into effect last week on 1 March.
It is worth just reminding ourselves where we are at and how we got here. The 2014 amendments were put forward by the previous government on the basis that they were based on the recommendations of the Protecting Victoria's Vulnerable Children Inquiry, known as the Cummins inquiry. The report of the Cummins inquiry contains 90 recommendations. Only 19 of those recommendations relate to legislation and of them only 1, recommendation 63, is about the legislative framework for the child protection system. Sixty-five of the Cummins inquiry's 90 recommendations are directed at improving the work of DHHS and other Victorian government agencies.
It is true that recommendation 23 of the Cummins report is that DHHS identify existing barriers to achieving good outcomes for children and overcome them. That recommendation is aimed at the internal workings and processes of the department itself. What seems to have happened instead is that the Children's Court has been identified as one of the main barriers to achieving good outcomes for children, and the 2014 amendments were written on that basis. Many of the Children's Court's powers were removed. The consequence of that is that the department now has much more unfettered power in relation to children in the child protection system.
Unfettered power is just never a good idea. Unfettered power is definitely not a good idea when it is power over vulnerable children that has been given to a department, especially when that department has outsourced most of its responsibilities to community organisations that it refuses to monitor appropriately and especially when the department has been found time and time again to have failed so many of the children in its care.
To justify the 2014 amendments, the former government cherry picked a single line from Cummins, and I quote:
The average time taken between a child's first report and their ultimate permanent care order, at just over five years … is too long.
Yes, it is too long. Nobody can disagree with that. Unlike the minister's recent criticism of the Greens as having all care and no responsibility, the Greens do not disagree with that. But that single line has been used again and again as the justification for the entire package of 2014 amendments. The department and the current minister are still using it as a justification in the department's presentations. I have seen the PowerPoint slides that the department uses in its training presentations to community service organisations, and that one cherry-picked line from Cummins features very prominently. Cummins did certainly recommend that the Children's Court should have streamlined some of its processes and made them more efficient. But Cummins also identified multiple inadequacies and failures within the department itself.
Even more explicit about these inadequacies and failures within the department was the Victorian Auditor-General's report of May last year entitled Early Intervention Services for Vulnerable Children and Families. In that report the Auditor-General found that the department had no systematic analysis of the massive increase in the number and complexity of child protection cases; an inadequate funding structure; inadequate forecasting, assessment and responses to current and potential demand for services; reactive and rudimentary strategic planning; ineffective communication within the department and between it and service providers; lack of a proper evidence base; and a focus on outputs rather than outcomes. And they are just some of the department's failures as identified by the Auditor-General pertaining to just one aspect of the child protection system.
Since taking on this portfolio on behalf of the Greens, I have been staggered to learn the extent to which the department routinely takes a hands-off approach to the statutory child protection system. The department does not know who is working for those organisations and does not require residential care staff to have minimum qualifications.
The department does not know whether children in its care are receiving therapeutic care. The department does not know whether children are placed with their siblings.
Since the year 2000 only two children have been awarded compensation for the abuse they have suffered while in the care of the department, despite the fact that in the last financial year alone there were 106 substantiated cases of abuse among children in out-of-home care. If we were serious about protecting vulnerable children, we would have a mandatory redress scheme so that children would be automatically entitled to compensation for abuse they have suffered in state care. At the very least that would introduce a financial incentive for the department to prevent abuse before it occurs. As things stand right now there are practically zero sanctions for the department when a child in its care is abused or assaulted.
In speaking with some community service organisations I have been gratified to hear that the department has apparently been undertaking to address some of the concerns raised by the Auditor-General in that report and various other reports that have identified similar failings in other areas of the child protection system. It would be a really great thing to hear from the minister about some of these developments beyond the very vague outlines provided in her media releases. But none of these policies and procedural developments change the fact that the 2014 so-called permanency reforms remove many of the Children's Court's powers to oversee the department. Some analysts said the court lost half of its powers. That is not what Cummins recommended.
The child protection sector generally was very supportive of the Cummins report. It was very unsupportive of the 2014 amendments when it discovered that the amendments were not based on the Cummins report. The overwhelming majority of written submissions — nearly all of them in fact — to the Standing Committee on Legal and Social Issues inquiry into last year's amendment act that restored just one of the Children's Court's lost oversight powers wanted the 2014 amendments to be repealed in their entirety. In the words of the Berry Street representative who appeared before the inquiry:
… the suggestion that the legislation that was carried was consistent with the Cummins inquiry is a very, very … difficult suggestion to sustain …
Until those 2014 amendments the whole history of child protection reform since 1984 had been of trying to inject greater accountability into the department's decision-making on the acknowledgement that no one agency, no matter how expert, how committed or how dedicated, can get it right 100 per cent of the time. Until 1984 the department removed too many children permanently from their parents, and contact was often never re-established. This left too many people with devastating and unresolved issues of identity, not to mention the very significant number of children who were further abused or neglected or further traumatised in the care of the state. As long ago as 2010 the Victorian Ombudsman concluded, and I quote:
Evidence emerging from research into outcomes for children in care has eroded the assumption that simply removing children at risk of harm from their homes and placing them in care will improve their wellbeing.
The evidence forces us to confront the fact that placing a child in care may not improve his or her wellbeing, and in too many cases, over and over again, children in care have suffered additional harm.
Yet what did the 2014 amendments actually do? The amendments made it more likely that children will go into care. Parents now get 12 months to prove that they are capable parents, otherwise children are removed from home permanently. Sometimes, of course, that is absolutely necessary, but surely this kind of massive state intervention in the lives of children should depend on the particular facts of each case. Sometimes children may have been able to stay at home had their parents been provided with appropriate, targeted, well-resourced support to help them address parenting issues, alcohol or other drug issues or mental health issues. Sometimes children have been able to return home three, four or five years after they were first removed, because their parents have been able to turn their lives around.
But with a 12-month clock ticking away, any delay in providing support to parents has massive consequences, and we know that some families have to wait six-plus months before they receive any support from the department or any access to services.
The big unanswered question in the 2014 reforms is: how are children kept safe when they are permanently removed from their parents? If they are lucky, children go into appropriate kinship care with extended family members or they go into foster care with carers who have enough time, enough resources and enough training to know how to care for traumatised children. If they are unlucky, children go into very inappropriate care. Far too many children go into residential care where they are clearly at substantial risk of being sexually assaulted or exploited.
Lots of children go into foster care, but there are not anywhere near enough foster carers, partly because we do not pay them anywhere near enough. It is well into the second year of this government, and Victoria still pays its foster carers less than foster carers get paid everywhere else in Australia. In any case, foster carers are very rarely trained in how to provide therapeutic care for traumatised children, so placements often break down and far too many children wind up in the juvenile justice system. But despite the fact that it is the very same department that administers both the child protection system and the juvenile justice system, we do not know the extent of the crossover between the two because there are no data linkages.
This bill will require the department to report adverse events to the commission, and it will provide the Children's Court with the same lawmaking powers in the family division that it already has in the criminal division. We understand that these and other technical amendments were made in belated consultation with the Children's Court itself, which is a good thing.
However, this bill will not address the major problems associated with the 2014 so-called permanency reforms. It will not address the fact that the secretary of the department can revoke the registration of any community service organisation for any reason at a time when community organisations are already afraid of losing their funding if they criticise the government. Now they are at risk of losing their registration as well. This bill will not address the fact that as of 1 March the Children's Court might not be able to take the same kind of action it took in July 2014, when it refused to grant the department an order that would have permanently removed two young children from their parents' care when those children had been horrifically sexually assaulted while in the care of the department.
This bill will not address the fact that the department has now assumed sole parental decision-making power in relation to children on three of the four new protection orders that have been available to the Children's Court since 1 March. This will take Victoria back to before 1984, when children had very little to do with their parents after they were removed. This bill will not address the fact that since 1 March efforts to reunify children with their parents have a 12-month time limit — two years in exceptional cases — and much less in practice because this clock is a retrospective clock. This means that more and more children will be coming into the out-of-home care system, which offers too many children too little stability.
This bill will not address the fact that since 1 March the Children's Court is no longer able to order contact between children and their parents more than four times a year, even when the Children's Court believes that more contact would be in the child's best interests. This bill will not address the fact that since 1 March adoption is listed as no. 3 on the list of permanency objectives, which has caused alarm and distress among people who were subject to forced adoption decades ago. This bill will not address the fact that since 1 March the Children's Court is no longer allowed to attach any conditions to care by secretary orders, thus conferring sole parental authority and responsibility onto the department, which has been shown time and time again to have manifestly failed in its duty of care to children in its care.
These problems were all theoretical until last Tuesday. Now they are very real. So yes, it is a good thing that this bill will require the department to report adverse events to the Commission for Children and Young People, but let us not kid ourselves that this is any real substitute for the loss of the Children's Court's powers of oversight over the department since 1 March.
Last Monday, which was the day before the 2014 amendments came into effect, I attended the Children's Matters conference that was run by Berry Street, the Victorian Aboriginal Child Care Agency (VACCA), Mental Health for the Young and their Families, the Office of the Public Advocate and the Law Institute of Victoria.
The conference was attended by more than 200 people from across the child protection sector. Among the attendees were carers, lawyers and agency staff.
We heard from a number of speakers, who I will list. They included the Honourable Alistair Nicholson, AO, QC, chief justice of the Family Court between 1988 and 2004 and widely recognised as one of Australia's premier champions of children's rights; Muriel Bamblett, AM, who has been the CEO of VACCA since 1999; Colleen Pearce, who has been Victoria's public advocate for people with disabilities since 2007; Trish McCluskey, Berry Street's regional director in Gippsland; Erin Hallwood, a permanent carer; Dr Allan Mawdsley, OAM, a past president of mental health for young children and their families; Crystal Moon, a young care leaver who has since completed a degree; Helen Eldersly, who is a kinship carer; Fleur Ward, a practising Children's Court lawyer who chairs the children and youth issues committee of the Law Institute of Victoria; Leigh Hillman, OAM, the carer, information and support service coordinator at the Foster Care Association of Victoria; and Anne McLeish, who is the director of Grandparents Australia. All of these speakers were eminently qualified to talk about Victoria's statutory child protection system from a range of perspectives and were uniformly against those parts of the 2014 amendments that removed the Children's Court's powers.
They added their voices to those who went on the record during the Standing Committee on Legal and Social Issues inquiry last year, the vast majority of whom also wanted the Children's Court's powers restored. The Honourable Alistair Nicholson told the conference that the 2014 amendments breach Australia's obligations under the United Nations Convention on the Rights of the Child. Trish McCluskey from Berry Street told the conference that it is only a matter of time before Victoria issues an apology to all the children it has removed from their parents' care and who it has failed to keep safe. She said the 2014 amendments are at odds with the direction of reform in the rest of the Western world. Erin Hallwood told her horrific story of maltreatment at the hands of the department when she applied to become a permanent carer of the child who had been fostered with her soon after the child's birth. Again and again we heard that the department does not seem to prioritise existing attachments between children and their parents or carers.
Helen Eldersly, who has been a carer for 28 years, recalled the moment when she realised that very often the reason the Children's Court appears to have no idea about what is going on in a particular child's case is largely because the report that has been prepared by the department is completely inadequate. Anne McLeish of Grandparents Australia, who also sat on one of the reference groups as part of the Cummins inquiry, told the conference that she feels as if it is almost the fault of her and other carers that the 2014 amendments removed so many of the Children's Court's powers. She said she feels as though carers' complaints to the Cummins inquiry were heard too loudly and selectively so that when they complained about the delays and legal rigmarole, the subsequent amendments identified the court instead of the department as the source of their concerns.
The conference asked two very significant questions about the 2014 amendments. The first was: who actually supported the legislation? There was certainly quite a lot of in-principle support provided by the community service sector, but that is before they saw the actual text of the amendments. Nearly the entire sector says that nobody was adequately consulted about the 2014 amendments. The very first opportunity that people had to register their response to the amendments was the Standing Committee on Legal and Social Issues inquiry last year, and overwhelmingly the submissions were against the amendments.
The current government and minister have had more than enough opportunities to repeal the amendments which took away a whole array of powers from the Children's Court and gave them back to the department itself.
The minister even put up a bill last year that restored just one of those powers, but for some reason she failed to listen to the concerns of the people who have direct experience within the system and know what they are talking about.
The second question the conference asked was, 'What are we making permanent with the 2014 amendments?', which both the previous government and this government call permanency reforms. Both the former minister and the current minister have stood in this place and told the chamber that the permanency reforms are all about making outcomes for children more permanent, but there is nothing anywhere in those amendments that makes it more likely that children will get permanent care outcomes.
Actually by removing one of the options for many children — reunification with their parents — we are at real risk of increasing the level of instability for children in care. Out-of-home care places will continue to break down, especially where children are highly traumatised. Nothing in the new act will stop that. Indeed the department has actually defunded at least one very successful program that provides acute therapeutic assistance to foster and kinship carers to prevent those places from breaking down. The one change we could make that could go towards improving the stability of out-of-home care placements is to require that siblings be placed together in the same placement.
Trish McCluskey from Berry Street told the conference on Monday that the greatest factor in determining whether a placement will or will not break down is whether siblings are placed together or apart, but the 2014 amendments say nothing about sibling contact even though the Cummins report made clear that it is the proper role of the Children's Court to determine the level of contact between siblings and indeed between children and their parents. Instead of giving the court additional powers to order co-placement of siblings, the 2014 amendments actually remove the Children's Court's power to order parental contact. They also remove all references to stability in the principal act.
If the 2014 amendments are not about ensuring stability of care for children, what exactly are we making permanent? The only answer can be the one suggested by Fleur Ward, a practising lawyer who chairs the Children and Youth Issues Committee of the Law Institute of Victoria. She said the only thing we are making permanent is the systematic deprivation and removal of children from their families.
Most of what has been said in this chamber, especially by members of the major parties, simply does not reflect the reality of the legislation that is now governing the lives of thousands of Victoria's most vulnerable children. We keep hearing over and over again about the benefits of permanency and how the amendments were based on the recommendations of the Cummins report, particularly in terms of addressing the lengthy wait times before permanent orders are made. More and more I wonder whether we in this place have adequately understood the reforms that the previous Parliament passed in 2014 — passed, I might add, with support of both the governing Liberal Party and the Labor Party that was in opposition at that time. The Greens were the only members of the last Parliament to oppose those amendments.
The 2014 amendments would have been good had they been based on the Cummins recommendations, but they were not. That is a statement of fact. If we continue to believe that they were based on the Cummins recommendations, then we obviously have not looked at them anywhere near closely enough, and if we are not looking at legislation closely, then I wonder what we are actually doing here. How was it, for instance, that the previous Parliament could have passed amending legislation through both houses of this Parliament that contained as many drafting errors as the Children, Youth and Families Amendment (Permanent Care and Other Matters) Act 2014 contained? A large part of what the current bill does is correct those drafting errors.
But this bill has come too late. The 2014 amending act, including its numerous drafting errors, came into effect on Tuesday of last week. For the past week magistrates around Victoria have been trying to work out what the Children, Youth and Families Act now requires, but as it stands right now the act contains mistakes. Last Monday, for instance, one particular magistrate, who had to determine an application to extend a supervised custody order, held that the very validity of the proceedings was at issue because the act as it was going to read the very next day made no sense. When we asked the minister's office what would happen during the period of time between 1 March and whenever the present bill came into effect — in other words, what would happen during the period when the drafting errors contained in the 2014 amendments operate as law — the minister's office told us that there was some kind of vague agreement with the Children's Court.
The minister's office told us that the court was aware of these drafting errors and would somehow avoid making final determinations on cases that came before it until those errors were corrected by the current Parliament. But of course the court cannot do that. The bill has no status whatsoever for a court until it becomes law and courts must apply the law as passed by Parliament.
So last Monday the magistrate, who apparently did not get the memo about the vague agreement with the minister's office, had to conclude that the validity of the proceedings before her was at issue. That is a conclusion that created huge uncertainty for the eight-year-old girl at the centre of that case. Here was a court telling an eight-year-old child and all the people who are trying to do the best thing for her that the law was not clear enough to allow the court to make a valid order. What is that going to do to an already traumatised child, except to fill her with fear and uncertainty and maybe even retraumatise her? That is the real-world consequence of any drafting errors that we vote for in this place and that we do not amend in time to prevent them from coming into effect.
But the problems with the child protection law since 1 March are not confined to drafting errors. The problems are not even confined to the foreseeable and apparently intended consequences of those 2014 amendments, such as the removal of many of the Children's Court's powers. There is also a raft of unintended consequences to the 2014 amendments, consequences of the lack of consultation and the lack of proper scrutiny.
I want to take a moment to talk about a real-life case that went to the court last week, because remember last week the problems of the 2014 reforms stopped being theoretical and started to become real. I cannot reveal her real name obviously, but let us call her Gemma. Eight-year-old Gemma has already been in out-of-home care for more than four years. For much of that time she has been living with her grandparents and her mother on what until last week was known as a supervised custody order, which gave custody of Gemma to her grandparents. During the second half of last year Gemma's grandmother passed away. The death of a grandparent is a massive, world-shifting event for a child, especially when the child has been living with the grandparent.
In this particular case Gemma had been placed in the formal care of her grandmother and grandfather because of the protective concerns that the department had identified in relation to Gemma's mother. Gemma's mother has very serious mental health issues and a history of not addressing them very effectively, but Gemma has a very strong attachment to her mother and loves her very much. Gemma's mother was also living with Gemma at her grandparents', but when her grandmother passed away both Gemma and her mother had to move out of that house. They could not live together, so Gemma went to live on the other side of town with her aunt, and her mother secured a three-bedroom house. It now takes 90 minutes to drive from Gemma's mother house to her aunt's place.
The PRESIDENT — Order! According to standing orders, we need to move to the adjournment. Ms Springle will have the call on this bill when it resumes. [Business interrupted pursuant to standing orders.]
NINA SPRINGLE --- I will pick up where I left off on Tuesday evening. It does not require much imagination to realise that when Gemma's grandmother died, the consequences for Gemma were enormous. Her whole life changed. Luckily though Gemma landed on her feet at her aunt's place. Within a couple of months it was clear that that was the best place for here. Everyone, including the department, was happy for her to stay there. In those circumstances the court had to deal with an application to extend an interim accommodation order under which Gemma was placed in the interim custody of her aunt.
What the magistrate last Monday wanted to do was make an order that was in Gemma's best interests. Indeed that is what the magistrate was required to do under the act, and in the opinion of that magistrate, it was in Gemma's best interests to continue to live with her aunt and to have increased contact with her mother, who was at least engaging with helpful services and showing real improvement. But the magistrate discovered that she could not make the order she wanted to make. The reasons are very technical, but the implication of the case was very clear. Last Monday that magistrate felt she had no option other than to decline to extend any order beyond that day, because of the likelihood that such an order would have been invalid — not because of the drafting errors that the current bill will fix up but because of the specific issues pertaining to a child who is on a suspended family reunification order and a current interim accommodation order.
The implication was that Gemma, an 8-year-old girl who everyone agreed was in need of protection, would wake up on the morning of Tuesday, 1 March, with no protective order at all — and ultimately that is exactly what happened. The department had to apply for a new protection order the very next day. For the whole of the Monday evening, 8 -year-old Gemma and all the adults in her life — her mother, her father and her aunt — were entirely uncertain about what would happen after the protection orders dropped off and Gemma legally reverted to her parents' care.
Children in the child protection system already face so much stressful uncertainty and instability. The last thing we should be doing in this place is adding to that uncertainty and instability — and yet, with the 2014 amendments, dressed up as 'permanency reforms', that is exactly what we have done.
What this single case shows is that, even aside from the litany of drafting errors that are being corrected by this current bill — drafting errors that should have been picked up at the time that no fewer than 125 of the 128 members in the last Parliament voted in favour of the permanency act, and drafting errors that the current government has had well over a year to pick up — the new legislation that came into effect last week has all kinds of unintended and unforeseen consequences, well beyond the consequences that were foreseeable but which the minister has pretended are not there. Family lawyers are telling me and my office that the uncertainty in this new legislation is so great that it will need a Supreme Court decision — maybe a series of Supreme Court decisions — to clarify what is meant by particular provisions. So much for permanency.
Child protection legislation is not like other legislation. It is not acceptable just to say, 'Woops, we just didn't foresee that issue' — or 'that ambiguity' or 'that outcome' — 'but look, everything will be sorted out eventually through a combination of legislative amendments and Supreme Court decisions'. No. It is our responsibility, legally under the Convention on the Rights of the Child and ethically as legislators, to ensure that child protection legislation is based on the best evidence, is subjected to the best analysis and the best scrutiny, and will result in the least amount of uncertainty for vulnerable children and families.
The 2014 amendments that removed the powers of the Children's Court were not based on the best evidence. They were not based on the extensive Cummins inquiry that most of the sector was very happy with. They were not subjected to extensive consultation with the sector. It is now clear that they were not even subjected to proper scrutiny by the last Parliament or this one. The outcome of this lack of consultation and this lack of scrutiny is that we now have legislation that is full of holes and full of uncertainties. And it is not just theoretical uncertainty. Many of Victoria's most vulnerable families are being put through weeks, perhaps months, of anxiety because nobody — not lawyers, not department workers, not magistrates — knows just how to apply this bad legislation. Only one thing is clear. Victoria now has child protection legislation that will result in the systematic deprivation and removal of children from their families.
The Victorian Aboriginal Child Care Agency, VACCA, is among many organisations that have gone on the record to express their concern that the 2014 reforms will result in a new stolen generation. Indeed we in Victoria are already removing more Aboriginal children from their parents than were removed under policy and legislation that specifically targeted Aboriginal families until the end of the 1970s. Andrew Jackomos's Taskforce 1000 has unambiguously found that all of the problems that are faced by children in out-of-home care, and residential care in particular, are compounded for Aboriginal children in care because Aboriginal children are so heavily over-represented.
One family lawyer this week has said that she fully expects that a majority of her clients will lose their children, permanently, within the next 12 months. That is what we have made 'permanent'. If the minister were serious about protecting Victoria's most vulnerable children, she would have listened to the concerns of the sector regarding the so-called 'permanency' reforms, and she would have restored the Children's Court's powers to oversee the department.