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- 16 November 2005
Commission for Children and Young People Amendment Bill
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Page: 19855
Second Reading
Debate resumed from 15 November 2005.
Ms GLADYS BEREJIKLIAN (Willoughby) [6.19 p.m.]: I lead for the Coalition in debate on the Commission for Children and Young People Amendment Bill, which is very important legislation. The Opposition will not oppose the bill. However, I place on the record the absolute concern and annoyance of the Opposition at having less than 24 hours in which to consider the bill. Last night the Minister gave her second reading speech at approximately 10.00 p.m. Given the importance of this bill and the responsibility and trust placed in members of Parliament in relation to the protection of children and young people and given the impact of this bill on the community, it defies my understanding why the Government chose to rush this legislation through the Parliament. The Government's approach is even more curious when one considers that preparation of this legislation has taken five years and, as the Government will no doubt assert, has been the subject of a very extensive consultation process.
The approach adopted by the Government constitutes an enormous disservice to people who have been involved in the long and, to some extent, thorough consultation process. This legislation will be rammed through this House and passed less than 24 hours after its introduction. I am sure that all honourable members take a very close interest in issues that impact upon the protection of children, including issues related to future employees and employers of institutions that will need to ensure that young people are protected. That this bill could be brought in and rammed through the Parliament within a short time frame defies my understanding. I ask the Minister to explain in her reply why she felt it was necessary to introduce the bill last night and ram it through the Parliament within 24 hours. That is not acceptable. The public will find the Government's approach as alarming as does the Opposition.
I seek clarification of a number of issues, but I emphasise that the Coalition has had less than 24 hours to examine the bill. The Government has clearly chosen the media ahead of the Parliament in conveying information on aspects of this bill. The people have read a great deal about this bill in the media, but when it comes to presenting the bill to the Parliament, honourable members are given less than 24 hours to examine its serious provisions, let alone comment on them. During the Minister's second reading speech last night she stated,"
This bill follows the statutory five-year review of the legislation underpinning the commission. She stated also, "A total of 384 submissions to the review were received, including 255 from children and young people." A key feature of this bill is that it attracted a larger number of submissions than usual during the consultation period. That reflects the long process undertaken in conducting a five-year review. Against that background, the Government's ramming of this legislation through the Parliament can only be regarded as a disservice to everybody who has been involved in the consultation process and a disservice to the community, given that amendments may very well be necessary.
The Opposition may have wanted to consider amendments but has been prevented from doing so by the shortage of time. I place on the record the Coalition's support for the protection of young people. The object of the bill is to amend the Commission for Children and Young People Act 1998: to confer on the Commission for Children and Young People the functions of encouraging organisations to develop their capacity to be safe and friendly for children, and of developing and administering a voluntary accreditation scheme for programs for sex offenders; and to enable the commission to compel certain information to be produced to enable it to carry out that function.
The bill also amends the Commission for Children and Young People Act to incorporate into the principal Act provisions currently contained in the regulations relating to special inquiries conducted by the commission and other matters; to incorporate into the principal Act the provisions of the Child Protection (Prohibited Employment) Act 1998 relating to prohibitions on employment in child-related employment; to include in the categories of persons who are prohibited from engaging in child-related employment persons who are convicted of offences, committed as adults, of intentionally wounding or causing grievous bodily harm to a child when the adult was more than three years older than the child; to restrict the right of a prohibited person to apply for a review of the prohibition, if the person is a person convicted of murder of a child, certain sexual offences involving a child or offences involving the production of child pornography; to change references to employment screening to references to background checking; to extend the offences to be checked as part of background checking procedures for employees in child-related employment; to provide for recent previous background checks on potential short-term employees to be used to satisfy requirements under the Act to carry out background checks on such employees; and to make other minor and consequential amendments and amendments of a savings and transitional nature. The bill also repeals the Child Protection (Prohibited Employment) Act 1998 and Commission for Children and Young People Regulation 2000.
As I stated at the outset, the Opposition will not oppose the bill. We support the thrust of this legislation. Our primary concern is centred on the process adopted by the Government in the manner in which the bill proceeds through the Parliament. I will raise a number of issues that have been debated in the media in the past few days and seek clarification on a number of points. The first point relates to media reports indicating that currently there are 89 people who have records of committing offences against children yet are working with children in the community. According to media reports, only three of those persons will be exempt after the proclamation of this legislation. I ask the Minister to comment on the status of those offenders, the basis upon which they have been granted exemption, and assurances that may be given to the community about their future employment prospects, given that they have records and will continue to be exempt from this legislation.
I also raise the issue of the status of officers of the Department of Community Services [DOCS]. Presumably when the legislation was first introduced, it incorporated all DOCS workers, but comments have appeared in the media in the past few days on the status of DOCS workers relative to this legislation. I ask the Minister to clarify the position of DOCS workers during her reply. I reiterate a concern expressed by my colleague in the other place the Hon. Catherine Cusack, who yesterday gave notice of a motion related to a number of reports of the Ombudsman that have not yet been tabled or made public. Some of the reports relate to child sex offenders. Given the long consultation process associated with this bill, that is a matter of concern. It would have benefited the public interest if those reports had been available for consideration at a time that was commensurate with presentation of this legislation. I will highlight parts of the motion of which by my colleague in the other place gave notice:
1. That this House notes:
(a) that the NSW Ombudsman Annual Report 2004-05 page 60 lists nine legislative reviews about police powers completed by the Ombudsman,
(b) that the legislation requires Ministers to table copies of these reports in Parliament as soon as possible,
(c) that only four of the nine reports have been tabled in Parliament, and
(d) that the Ombudsman, on 26 October 2005, called for the Minister for Police to immediately make the report on the Child Sex Offenders Register available to Parliament.
The second part of the Hon. Catherine Cusack's motion states:
2. That, under standing order 52, there be laid upon the table of the House within 14 days of the date of passing of this resolution the following documents in the possession, custody or control of the Minister for Police and the Attorney General:
The fourth of the six reports referred to in the motion is the Ombudsman's review of the Child Protection (Offenders Registration) Act 2000 provided to the Hon. Carl Scully, Minister for Police, in May 2005. I refer to this matter because it reeks of potential for a lack of transparency. Given that this important legislation is before the Parliament, I would have hoped that the Government would observe the requirement to table the Ombudsman's annual report relating to the child sex offenders register so that it could be considered in the context of the bill. It is a matter of grave concern that that has not happened.
As I indicated previously, the bill repeals other Acts and will become a one-stop shop, so to speak, for employers and employees who need to be aware of the laws and regulations that will impact upon employment of people caring for children and young people, particularly in relation to previous offences against young people. This is a positive move to guarantee that there is one body of law that people can refer to ensure that they are within the law in relation to the employment of persons working with children. The legislation also aims to make definitions more consistent in regard to employment of persons and to offences that are exempt or not exempt. To an extent it does reduce red tape. Most importantly, this legislation reiterates the Parliament's bipartisan approach of absolute commitment to child protection and to ensuring that those most vulnerable in our community are protected in every conceivable fashion.
I would also like the Minister in reply to respond to the wording or type of information to be distributed to members of the public who are considering placing their children in the care of others in formal organisations, as to what checks they can make to make sure that the employees in the organisation have been scrutinised. I understand that certificates will be available in a voluntary capacity for those organisations that choose to be part of the transparency process under this bill. What the public position will be in interpreting the status of those certificates is something that needs serious attention, and I ask the Minister to comment on that in her reply. I ask the Minister to confirm also when the bill will be proclaimed. From my quick reading of the bill and the second reading speech there does not appear to be a commencement date. I am assuming that is when assent occurs, but given that there are a number of unresolved issues in relation to the public information campaign and the certificate process, I would like to know when the official proclamation will be.
In addition to these issues, I seriously hope that the Government will change its approach in dealing with legislation that impacts on the Commission for Children and Young People. The Coalition regards the issues that impact on the Commission for Children and Young People as very important. We would like to be part of a very constructive public and robust debate on these issues. That is simply not possible when we are faced with a government that chooses to define its public and robust debate on these issues by introducing legislation and having it debated less than 24 hours after it is tabled. That is not a constructive process on issues that are so important The Coalition strongly support measures that increase the scrutiny of people who are working with children. Child protection is an issue of paramount importance. There are few issues more important. I know that many members on this side of the House, such as the honourable member for Hornsby, have spent many long hours as part of the consultation process making their views known.
The Coalition in government has a very strong record on issues relating to the protection of young people. The Office of Youth Affairs was established under the Coalition—and regrettably abolished under this Government. My parliamentary colleague the honourable member for North Shore played a very critical role in relation to the Office of Youth Affairs and young people. The Coalition does not oppose the bill; we support the thrust of the bill and believe it is important in regard to child protection. However, we are extremely concerned, firstly with the Government's approach in rushing it through Parliament; secondly, that the Minister is not present to address the issues I have raised today; and, thirdly, with the lack of detail as to the implementation process. Finally, I reiterate my concern that the Ombudsman's report should have been tabled some months ago regarding the Child Protection Offenders Registration Act and the child sex offenders register. I am bemused as to why the Government would not make such a report public, as it is obliged to do, especially when it may have been relevant to the deliberations on such an important piece of legislation. Having made those comments, I commend the bill to the House.
Ms MARIANNE SALIBA (Illawarra) [6.35 p.m.]: I support the Commission for Children and Young People Amendment Bill. I was disappointed to hear some of the comments made by members of the Opposition. They acknowledged that there has been extensive consultation on this bill and they are well aware of that consultation. They are certainly aware of what this bill is about. Indeed, it is about protecting young people. They ought to acknowledge that the New South Wales Government is serious about protecting children in the workplace. Parents, families and the community expect that the organisations where their children spend their time will be safe places for them. We will continue to lead the States with our approach to this important issue for the community.
This bill extends and strengthens the system that this Government has put in place to protect children and young people in New South Wales workplaces. I have four children of my own, three of whom work part time or in a casual position. I certainly commend this bill and recognise the importance of protecting my children when they are outside my care. This Government is responsible for the first comprehensive, legislatively based system for child protection in the workplace in Australia. The New South Wales system was established in 1999 to make it clear that the protection of children is so important that it takes priority over the right to work with children; to ban people convicted of certain serious offences from working with children at all; and to assist employers to recruit staff by providing a service which checks employees' backgrounds and estimates the risk a potential employee would pose to children in that workplace.
The community understands the importance of building on those good foundations to help improve workplace environments. Experience around the world has shown that a commitment to child-safe and child-friendly workplace practices is very important in keeping children and young people free from harm. The Working With Children Check is one part of a range of strategies that employers need to use to keep workplaces safe for kids. While employers need to take care in selecting staff in child-related work they also need to train, supervise and support their staff and establish systems for dealing with problems and complaints. The assessment of the workplace as well as the employee was a New South Wales innovation. Emerging research supports the approach that children can be placed at risk by poor work design or inadequate supervision as well as by employment of unsuitable people.
The experience of the Commission for Children and Young People over the last five years shows that exclusion and checking are important. However, these elements are strengthened when they are supported by good organisational design and development. Employers need to know how to run their day-to-day operations so that risk to the business, their employees, and the children and young people they deal with is ameliorated. Organisations also benefit when sound recruitment and staff supervision policies are in place, where they have good risk management strategies and children feel comfortable in making complaints. For instance, if a child is concerned about the behaviour of an adult employee toward them and there are clear opportunities for them to voice their concerns, the situation can be dealt with.
If those workplace strategies are not there, employers run the risk that the child's concerns could be ignored, which could lead to the child being placed in an unsuitable or dangerous environment. Or what was initially a simple complaint could escalate to a degree where that organisation's reputation and future business dealings could be compromised. The commission has developed and implemented its child-safe and child-friendly organisations initiative as the third and most fundamental aspect of making workplaces safer for children. New South Wales has now pioneered a three-pronged approach to workplace child protection: helping organisations do their business in ways that are safer for children; providing advice and assistance to employers in recruiting staff to work with children; and completely banning some people from working with children
While we have three equally important strategies for protecting children, the legislative framework around these strategies needs to better reflect their purpose and intent. Currently, background checking is contained within the Commission for Children and Young People Act 1998. The prohibition system is established under the Child Protection (Prohibited Employment) Act 1998. There is also no legislative base for promoting child-safe and child-friendly organisations. This bill puts the three parts of our system into one Act and gives them equal legislative footing. The bill also formally gives the commission the function of promoting child-safe and child-friendly organisations. As a result, the legislation is less fragmented and more consistent and provides an overarching legislative framework for promoting child safe and child friendly organisations.
Promoting and embedding organisational behaviours will help to keep children safe while also making them feel welcome and included. It provides for an environment that reduces the risk of children coming to harm. The work by the commission has been invaluable in raising awareness about the importance of being child safe and child friendly. Further, it has provided practical hands-on support, resources and training to organisations that work with children. But under the current legislation, this function has been one of education and support—it places no legal requirements on employers. By integrating the commission's responsibility to perform this universal and necessary function in legislation, we send a clear and unambiguous message to the community.
The message is that child protection in the workplace is of paramount importance and worthy of an integrated approach. When organisations are working in ways that are child-safe and child friendly, the complementary functions of banning serious offenders and advising employers on recruitment have a firmer base on which to operate. These strategies are more likely to be effective in protecting children when they are all working together, as part of a co-ordinated overall package. That is why the bill places them together in one Act, providing a single reference point for anyone wanting to make their organisation safer for children. In adopting and legislating for this three-pronged approach to keeping children safe in the workplace, New South Wales is again leading the world in protecting children.
I recommend to the Opposition that while it is supporting the bill and has had ample opportunity to be involved in consultation, it should support the bill rather than complain about it. The Opposition should get behind the work that the New South Wales Government is doing in protecting children and young children. It is because of the work that the Government is doing in that regard that I commend the bill.
Mrs JUDY HOPWOOD (Hornsby) [6.42 p.m.]: The Commission for Children and Young People Amendment Bill amends the Commission for Children and Young People Act 1998 with respect to child-related employment and the functions of the Commission for Children and Young People, and repeals the Child Protection (Prohibited Employment) Act 1998. With the indulgence of the House I will read the objects of the bill, which are:
(a) to confer on the Commission for Children and Young People (the Commission) the functions of encouraging organisations to develop their capacity to be safe and friendly for children and of developing and administering a voluntary accreditation scheme for programs for sex offenders,
(b) to enable the Commission to compel certain information to be produced to enable it to carry out certain functions,
(c) to incorporate into the Principal Act provisions currently contained in the regulations that relate to special inquiries conducted by the Commission and other matters,
(d) to incorporate into the Principal Act the provisions of the Child Protection (Prohibited Employment) Act 1998 (relating to prohibitions on employment in child-related employment),
(e) to include in the categories of persons who are prohibited from engaging in child-related employment (prohibited persons) persons who are convicted of offences committed as adults of intentionally wounding or causing previous bodily harm to a child where the adult was more than 3 years older than the child,
(f) to restrict the right of a prohibited person to apply for a review of the prohibition if the person is a person convicted of the murder of a child, certain sexual offences involving a child or of offences involving the production of child pornography,
(g) to change references to employment screening to references to background checking,
(h) to extend the offences to be checked as part of background checking procedures for employees in child-related employment,
(i) to provide for recent previous background checks on potential short-term employees to be used to satisfy requirements under the Act to carry out background checks on such employees,
(j) to make other minor and consequential amendments and amendments of a savings and transitional nature.
I am a member of the Committee on Children and Young People. I express my disappointment that the bill appears to have been rushed through the House. The Minister for Community Services, and Minister for Youth delivered her second reading speech at 9.47 p.m. yesterday, and the remainder of the debate occurred today. The bill offers many extremely valuable facets to encourage organisations to develop their capacity to be safe and friendly for children, and the Opposition would have liked an opportunity to address that aspect of the legislation.
Although 384 submissions were received to the review conducted by Ms Helen L'Orange, there could be more input into something as important as the safety of children in our community. I concur with the honourable member for Willoughby, who expressed concern about the apparent ramming through of the bill. I note that the Minister is not in the Chamber. If the bill is so important why is she not here? The House could have waited for her to be here tonight. I believe the Minister should be involved in this debate, to listen to what members have to say, including members on her side of the House.
Next week the Committee for Children and Young People was to question the Commissioner for Children and Young People. I am disappointed that the bill was introduced before the committee had the chance to ask questions. We have been given a number of updates on the review of the bill, but we had no opportunity to look at Ms L'Orange's review and at other aspects of the bill before it was introduced into the House. Other members of the committee would feel similarly aggrieved, because there are issues about the bill that would have been more fulsomely discussed if the committee had had the opportunity to look at it. In the last paragraph of the Minister's second reading speech she stated:
We will be consulting with those groups impacted by the review's recommendations for extending background checking to further improve our system in New South Wales.
The Minister is saying that she will seek further consultation on the bill; obviously the bill presented is not the final story—no legislation is. However, the Opposition would like more time to look at the bill and to consult with other people who may not have been consulted. Obviously that will not be possible. Following this debate there will be no chance to do that. The Minister, referring to the bill's compliance measures, said:
The commission's approach to its working with children provisions over the last five years has primarily been through education and encouragement. Employers recruiting people for paid or unpaid—
note "unpaid"—
child-related employment have now had time to learn about their child protection obligations.
As I have not had time to read the bill in its entirety, I wonder what the Minister's answer would be to the question of volunteers. I know that this issue has been raised. Being an honorary member, a full member and an associate member of a number of different organisations in my electorate and outside it, I know that if organisations have anything to do with children, and many of them do, the executives of those organisations seek a children check.
There is a reference in the Minister's second reading speech to unpaid employment and a link to volunteers. I am an honorary member of three rotary clubs and have quite a lot to do with youth projects, including youth exchanges in those rotary clubs. To give the rotary club as an example, I am required to give three separate children checks for three separate clubs. That obviously extends to other organisations to which I belong. It is frustrating to have to go through the whole process three times. When I was working as executive director of the Australian Podiatry Association I had to go through that checking process because I had to go into Matthew Talbot hostel.
I had to undertake that checking process on the off-chance that I might run into a school group doing a tour of the hostel. Obviously children are not often residents of or day visitors to that hostel. In the past I asked the commissioner about this issue. It was reasonable that I received the answer, "Do not worry because obviously this is in the interests of children." In this day and age people are busy and clubs are busy. If I had a certificate that I could present as being completely children checked, even if I had to do that every two or three years, I would have no problem with that. I would then be able to show that certificate to all the organisations to which I belonged. Other members in the community who are active in local groups and organisations would also have that ability.
I refer to the issues raised earlier by the shadow Minister. She referred, first, to the notation in media reports relating to 89 people who had a background alert. She then referred to issues relating to Department of Community Services workers and said that clarification was needed. Today the Ombudsman made the alarming revelation that some reports relating to child sex offenders have not been made available. The shadow Minister referred also to providing information to the general public. It is incumbent on the Government to increase the confidence of the general public in child-minding organisations and others dealing with children.
Members of clubs who are undertaking courses must undergo those children checks. When will this legislation come into force? I express concern that the Minister is not in the Chamber to listen to this debate. The Coalition does not oppose this legislation. All Opposition members support any move to protect and keep our children safe. However, we need more time to scrutinise this legislation. In future will the Minister consult with the groups to which she referred in her speech?
Mrs BARBARA PERRY (Auburn) [6.53 p.m.]: I support this bill which will amend the Commission for Children and Young People Act 1998 and repeal the Child Protection (Prohibited Employment) Act 1998. This bill shows clear progress in the work of the Commission for Children and Young People to further enhance the safety and wellbeing of children in our State. An important part of the process of drafting the bill has been wide community consultation—something that was acknowledged by all those who contributed to debate on this bill—which includes more than 250 children and young people.
I take this opportunity to refer to what these kids had to say about the commission and its work. Before I do so I thank my colleagues on the other side of the House for their bipartisan support, which helped to bring the commission into being for the benefit of our children. I also thank them for their bipartisan support for this bill. I acknowledge the support and co-operation of all my colleagues on the parliamentary Joint Standing Committee on Children and Young People. I acknowledge tonight's contribution by one of those members, that is, the honourable member for Hornsby.
The views of children and young people were a vital ingredient for establishing the commission, so is highly appropriate that they formed such an important part in developing a bill to strengthen the commission and its work. Four main points emerged as a result of consultations with those kids. First, kids value and support the work that the commission does. Second, the commission's independence is vital for its credibility among children and young people. Third, the commission's role as the peak advocate for kids in New South Wales is one of its most important functions. Fourth, this bill responds to the wishes of children and young people by maintaining a mix of advocacy, education and research, and encouraging organisations to be child safe and child friendly, while maintaining and strengthening its employment screening functions.
It is appropriate at this stage to acknowledge the work done every day by those at the Commission for Children and Young People. I acknowledge the work of Commissioner Gillian Calvert and her team. They are highly professional and are dedicated to young people in our State. Kids often say that they believe their voices are drowned out in public debate. They see the commission as valuable in making their voices heard. One young person said of the commission's work:
It's a way we can try to implement change... we are a minority—it is hard to get people to listen, and many people don't want to listen.
Importantly, kids tell us that the very existence of the commission helps to build a sense of belonging and connection to the community. This reassures children and young people and that, in turn, encourages them to participate and feel that they are valid members of the community with something to contribute. Another young person said:
It encourages the participation of younger people in decisions that affect their lives, as well as promoting and enforcing the wellbeing of young people.
The bill maintains the commission's independence from partisan politics, continuing its role of reporting to a joint parliamentary committee comprising members from across the political spectrum. It is a vital feature of the commission and something that the kids value highly. Another young person said:
It is independent of the government and has the power to disagree with the government if its finds its policies unsatisfactory. Therefore the commission can be a more fair and scrutinising organisation.
As for the commission's role of bringing children's issues into public debate, the children and young people of New South Wales have commended the commission's work on issues such as mobile phones, bullying and school toilets. They also suggested that more work could be done regarding health, wellbeing and relationships with family and the community. The commission was seen as performing a valuable service in researching issues relating to children and young people. Children and young people also supported the screening of people working with them and believed it to be an important and ongoing function of the commission.
This bill is about strengthening and consolidating a fundamentally sound legislative base. The principles that guide the commission are unchanged in the bill. These principles remain: the safety, welfare and wellbeing of children are paramount considerations; the views of children are to be given serious consideration and taken into account; and a co-operative relationship between children and their families and between children and their community is important for the safety, welfare and wellbeing of children. It is clear from what children and young people have told us that these principles have their support.
Everyone in this House wants to see children growing up in this State feeling valued and respected, able to take their place as participants, and not just the objects of decision making. The New South Wales Commission for Children and Young People has played, and continues to play, an important part in this process. The bill before us builds on what has already been achieved for the children and young people of New South Wales and lays the legislative foundation to do even better. I thank the Minister for Community Services, and I commend the bill to the House.
Mr MATT BROWN (Kiama—Parliamentary Secretary) [7.00 p.m.], in reply: I pay tribute to the honourable member for Auburn for her continued support for, and dedication to, protecting children in New South Wales. I thank her for her contribution to the debate and for her ongoing work as Chair of the Committee on Children and Young People, which oversees the Commission for Children and Young People. I thank the honourable member for Illawarra for her constructive comments. She is another hardworking member of Parliament who is very concerned about the welfare and safety of children in New South Wales. I also thank the honourable member for Willoughby and the honourable member for Hornsby for their contributions to the debate. They raised a number of issues that I will address now.
Honourable members asked why the bill is not retrospective: Why does it not prevent those who received exemptions in the past from working with children? The decisions of the independent bodies—the Commission for Children and Young People, the Administrative Decisions Tribunal and the Industrial Relations Commission—were based on requirements under the existing legislation that they be satisfied that applicants are not a risk to children. However, to put the issue beyond doubt the bill ensures that we meet our community's expectation that we will make environments more child safe and child friendly.
The honourable member for Willoughby asked whether Department of Community Services [DOCS] workers are subject to the requirements of the legislation. I will answer that question as explicitly as possible. Yes, they are, and they have been compliant with the legislation since it was introduced in 2000. As to certificates for self-employed people, a parents education campaign will be launched before this aspect of the bill comes into effect. The honourable member for Willoughby expressed concern about the proclamation of the bill. I inform the House that the commissioner will develop the relevant procedures, guidelines and standards and when these are ready the legislation will be proclaimed.
The honourable member for Hornsby asked about the issuing of cards for volunteers. An independent review of this model, which operates in other jurisdictions, recommended retaining the current system in New South Wales as a more robust way of protecting children. We must remember that the object of the bill is not administrative simplicity but protecting children in New South Wales. I am pleased that the Government is directing its attention to that very important aim. I thank the Minister for Community Services and those honourable members who contributed to the debate. I also thank the Commissioner for Children and Young People and all those who work for the commission to ensure that New South Wales has one of the strongest child protection systems around.
Motion agreed to.
Bill read a second time and passed through remaining stages.
[Mr Speaker left the chair at 7.04 p.m. The House resumed at 7.30 p.m.]
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