Debate resumed from an earlier hour.

The Hon. FRANCA ARENA [8.03 p.m.]: I welcome the introduction of these important bills. Even though there are significant shortcomings in all three bills, we all hope that as a true House of review this Chamber will ensure that proper amendments are passed and that these bills will become Acts of which we will all be proud. We must keep foremost in our mind that the purpose of the legislation is for the protection, welfare and benefit of children and young people.

It is interesting to note that the word "protection" does not appear in the bill. The Premier’s staff gave an explanation as to why that word has been replaced with other words, but I cannot say that I found the explanation satisfactory. I would like to see "protection" added to the functions of the commission. The function of advocacy for children is not included either, and I was glad to hear the Hon. Patricia Forsythe give a commitment on behalf of the Opposition that if elected next March the Opposition will establish an office of children’s advocate.

These bills are the result of the exposure of the problems of paedophilia in the last couple of years. The problem has always existed but it had been swept under the carpet. The Wood royal commission revealed the facts but neither Justice Wood nor Mr Carr endorsed a full inquiry on all aspects of paedophilia - for reasons best known to the two of them. It was known that the problem was deeply entrenched, especially in the past couple of years when the matter has been raised at all levels
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of society. Interestingly, only in the past few days I became aware of a speech by New South Wales Liberal Senator Bill Heffernan, who on 29 May in the Commonwealth Hansard said:

Recently I made a speech in which I highlighted the code of silence which protects worldwide child sex networks, in particular, Australian paedophile networks. These networks include people in the judiciary, parliament, clergy and the Public Service. Many of these people live in an abhorrent culture in which is included, as a spoils of office, the right to have sex with children. These people put themselves at continual risk of serious compromise in their work places as perpetrators, as too do those people who knowingly ignore or turn a blind eye to this ultimate betrayal of our children.

Those are good words from Senator Bill Heffernan. His speech is much longer and I have circulated the Hansard to all honourable members in the hope that they will read it. It includes a very interesting letter from a man who was found dead two days after writing it. This is one of the many examples of concerns raised by parliamentarians and citizens at all levels of our society. At page 1293 of volume V of the report of the Royal Commission into the New South Wales Police Service the royal commissioner stated:

Since 1990, notwithstanding:

•the existence of interagency guidelines;

•a stated commitment by each of the responsible agencies to co-operation in the management of child sexual abuse;

•a myriad of reports and reviews calling for such co-operation; and

•numerous meetings of the Child Protection Council supporting the principle of interagency co-operation;

the objective of interagency co-operation has not been satisfactorily met.

The reform already achieved throughout the life of the Royal Commission has been encouraging but the history outlined earlier leads to the irresistible conclusion that change would not have happened without its presence.

How much bigger the change would have been if there had been a full inquiry on all aspects of paedophilia. The royal commissioner continued:

No one department or agency can adequately discharge the obligation of the State to provide reasonable protection for children from abuse. Co-operation and co-ordination of effort are essential to create a protected environment. The need for a co-ordinating agency has been recognised in the creation of the Child Protection Council and the Office for Children and Young People, although each has a largely advisory role.

The Royal Commission has concluded that it is now necessary to establish a new Commission with appropriate powers and capacity to oversee and co-ordinate the delivery of service for the protection -

and it is pleasing that he uses the word "protection" -

of children from abuse (including sexual, physical and emotional abuse and neglect). It should be set up in the context of a rationalisation of the roles of existing agencies and it should have more than a mere advisory role.

The desirability of establishing an effectively resourced and empowered umbrella organisation along these lines was identified in several submissions received by the Royal Commission. It was also advanced by a number of the experts who were consulted.

If such a Commission is to be established, it need not be large but would require the resources and powers -

and he lists all the functions of the commission. Please note that Justice Wood said he would require the necessary resources and powers. I shall address the issue of resources in a moment. I simply reiterate that, despite some shortcoming, this is important and long-awaited legislation. There has been much consultation about the establishment of the commission, and I commend the Government for issuing a green paper in December 1997. The green paper asked whether the children’s commission should be a statutory body independent of government and whether the commission should address all issues affecting children or only child protection.

I note that the word "protection" appears repeatedly in all the papers. The royal commission proposed that the children’s commission should have a child protection division whose functions would include advocacy, research, public education, monitoring and training. The words "advocacy" and "protection" are used repeatedly in government documents. The Council of Social Service of New South Wales submission on the green paper stated:

The assumption in the Green Paper seems to be that a Children’s Commission would be a co-ordinating and advisory body, without any real power to effect change. However, there is little point in giving such a body independence if it still has not power to act. In order to fulfil its basic functions, and in order to maintain its public credibility, a Children’s Commission will need some clearly defined and legislated powers.

That is why honourable members are drafting amendments to this important legislation. In Committee honourable members will move amendments that improve the legislation. NCOSS and many other organisations have written to me - I am sure they have written to other members of Parliament as well - asking for a commission with powers and resources. As a crossbench member I have been punished by the Labor Government as I have not been provided with an extra staff member,
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as other crossbench members have. That means that it is difficult for me to prepare amendments.

The Hon. I. M. Macdonald: Shocking!

The Hon. FRANCA ARENA: The Hon. I. M. Macdonald says that that is shocking. It is shocking when I must decide how to vote on amendments to at least 30 bills. It would be easy for me to say that I will vote for this amendment but not that amendment. I have a responsibility to make the right decision as my vote might be crucial to the passage or rejection of legislation. It is difficult for me to make the right decision. Other crossbench members have staff to help them prepare amendments and attend meetings, but I must do those things myself. I am not complaining; I am simply saying that it is difficult for me to consider all amendments in detail. I am happy that the Hon. Patricia Forsythe, with whom I have discussed some amendments, will be moving amendments to improve the legislation. I will support amendments that I feel are worthwhile, and I may move amendments if I feel that not all the amendments I believe should be moved have been moved.

This legislation will go a long way towards responding to community demands but it does not go far enough. Why did the Government not take the opportunity to establish a strong structure that was truly independent? The proposed commission will be, and will be seen to be, a toothless tiger if it has no power to do anything without the Minister’s permission. That is totally unacceptable. As I said, I am sure that the Committee of the Whole will accept appropriate amendments to change the situation. In a letter dated 6 November the Disability Safeguards Coalition stated:

The Disability Safeguards Coalition strongly believes that if the Commission for Children and Young People is to have any opportunity for success, it is critical that it has special far reaching powers to initiate reviews and report into any area of law, policy or practice affecting children and young people.

That is fundamental. I am glad that the Minister’s advisers are present in the Chamber to advise the Minister - there is some confusion about whether the Premier or Mrs Lo Po’ have carriage of the legislation. I always try to reach a compromise and to listen to other points of view. However, providing the commission with the power to initiate reviews is not negotiable. Honourable members may find that statement hilarious, but it is important for the commission to have the power to initiate reviews and inquiries without reference to the Minister, whether it be a Liberal Minister or a Labor Minster. It is essential that the commission have that power.

The Minister’s office has advised that if the commission does not have the power to initiate an inquiry the commissioner can report to the Parliament. That means that the only avenue of redress for the commissioner will be to report to the Parliament. Honourable members know what that means: it will be a one-day wonder. A small fuss will be made, there will be articles in newspapers and then it will be forgotten - and a much-needed inquiry will not take place. The Premier must understand that this matter is more important than simply winning points; it is a question of basic justice and the basic powers of the commission.

The legislation imposes on the commission a duty to co-operate with other agencies. However, it does not impose on other agencies a duty to co-operate with the commission. Why not? I hope the Minister can provide a satisfactory explanation in reply. Nowhere in the legislation or in the speeches made in the lower House is there a firm commitment from the Government about funding of the commission. I would like a firm assurance from the Minister that the commission will have the funding necessary to do its job properly. On 29 October the ABC reported:

Carr to make obstruction in Senate an issue in State election.

New South Wales Premier Bob Carr says he is prepared to make Upper House obstructionism an issue in next year’s State election.

Mr Carr has issued a clear warning to Coalition and crossbench MPs that he will park key legislation in the Legislative Council rather than have it substantially amended.

He says he will go to the people on the issue if important Bills, like those dealing with Sydney Water reforms, forestry and the creation of a Children’s Commission, are tampered with.

"I’m signalling that if they muck around with what we see as vital legislation, the Children’s Commission, the Drug Courts legislation, the reform of Sydney Water, the forestry package, the work safety legislation, we will leave that legislation in the Parliament," Mr Carr said.

"We’ll go to the people at the State elections in March and say if you want these measures to pass you need to give us a majority in both Houses of the Parliament."

That is a strange statement for the Premier to make. What are Labor’s colleagues in Canberra doing? Federal Labor members, together with the Australian Democrats, established eight committees to examine a goods and services tax. Labor has used its numbers in Canberra!

The Hon. D. F. Moppett: Hypocrisy!

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The Hon. FRANCA ARENA: The Hon. D. F. Moppett says "Hypocrisy!" The Premier has threatened that the Government will park legislation in the upper House and then go to the people. I would like Mr Carr to go to the people of New South Wales and tell them why we wanted to amend this legislation. I can assure him that if the Government parks legislation in this House I will go to the media room - coalition members and crossbench members may join me - and tell the people of New South Wales that we wanted to amend the legislation not to be capricious or for any reason other than to improve it. I do not take the Premier’s threat lightly. Obviously his office has undertaken a letter writing campaign, because I was amazed to receive a letter from Dr Yu, whom I have known for years. He is Australian of the Year and is Director of the Children’s Hospital at Camperdown. Dr Yu’s letter stated:

Dear Franca

I am writing to you about this important Bill . . .

You will be aware that many of us in the community have been concerned for some time about the lack of legislation to ensure that the needs and interests of children and young people were addressed . . .

Like so many others, I was delighted that New South Wales had established an Office for Children albeit with some acceptable shortcomings and very pleased indeed about the prospect of a Commission for Children. In following recent developments in the upper House, I am concerned that the many amendments being discussed or proposed will result in a weakened piece of legislation or worse still a bill that will not be acceptable to the Government.

Has Dr Yu suddenly become a member of the Government or a political party? I am very disappointed in Dr John Yu.

The Hon. D. F. Moppett: Franca, this whole idea came from the upper House. This ought to be called the Ann Symonds bill.

The Hon. FRANCA ARENA: That is true. We should pay tribute to Ann Symonds, who has always been committed to the children of this State.

The Hon. D. F. Moppett: The children’s commission was her great opus, not the Premier’s.

The Hon. FRANCA ARENA: Absolutely. Dr Yu further said:

If the Bills do not get passed before the next election then I suspect that the cause will be lost for the foreseeable future.

The Bills are not exactly as I would prefer but are very much better than no law supporting children at all. I am convinced that the proposed bills will provide a workable set of legislation which the in future may be refined and clarified by suitable regulations or even later amendments.

I do not presume to speak for those many people in the Children’s lobby but I personally ask you to ensure that these Bills are passed with their intent and their protection of children intact. It will be an important first in Australia.

I replied to Dr John Yu in a letter dated 4 November, in which I said in part:

You can rest assured that I will support the Commission for Children and Young People Bill. However, if we are able, we will move amendments to improve the Bill. As you can understand John, this is what the role of the Opposition and the crossbenchers is, and that is to try to improve the legislation. I think you have known me long enough that whatever amendments I move or support, is only to improve and in the interest of the children and young people.

Bob Carr has said in the media that we either pass the bill as it is or he will park it in the Upper House. Do you think that is the behaviour one expects of a Premier? Practically threatening or blackmailing members of Parliament? I honestly feel that is not the attitude one expects of a Premier.

I am disappointed that a person of the standing of Dr Yu, who has obviously not seen the legislation and is not aware of the amendments, listened to the Premier and thought this kind of letter should be written. I find it strange that these bills are the responsibility of the Premier but that they have been presented by Minister Faye Lo Po’. Why? Does the Premier feel that he cannot speak to these important bills, even though they originated from his department? The Premier wants control but he does not want to speak to the bills. I find that very strange. While there has been a lot of consultation in relation to these bills not many of the recommendations of the various organisations have been accepted - some have been accepted but others have been ignored.

I should like to thank all the people who have written to me, offered advice, sent copies of their submissions or organised briefings. It would be impossible to name all of them, but in particular I mention the invaluable work of NCOSS, the Australian Child Protection Alliance, the Catholic Education Commission, Justice for Young People, the Nurses Federation, the Teachers Federation, and individuals such as Freddi Martin, Alice De Angelis and Helen Ferns - all of whom are deeply committed to the protection of children. I extend my sincere thanks also to Gillian Calvert, who is in the gallery, who is a very good public servant. Gillian has always been available to give advice and information -

The Hon. Patricia Forsythe: You were lucky!

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The Hon. FRANCA ARENA: Yes. She has given a lot of information to the crossbenchers. I know that Gillian has not had an easy job, but she has performed her job as a public servant very well. I am grateful to her. As I said, various organisations have made valuable submissions. I should like to quote a passage from the submission of the Australian Child Protection Alliance, which was delivered by Dr Jean Lennane, a woman who also cares very much about the protection of children. The submission stated:

A. The best defence against paedophilia, for both the community and for individuals, is probably information - comprehensive, accurate and up to date. The legislative package makes big steps in the provision of information to the Commission and to Government departments, and provides some steps towards providing companies with some information.

B. The Commission will also have several functions relating to improving community information which are most welcome. It is important that these functions are adequately resourced and pursued diligently, so that the community is better aware of the extent and nature of the threat to their children and of the high prevalence of child sexual assault, as well as being aware of the extremely damaging effect on individuals and the community.

C. Exposure is probably the most feared counter for many paedophiles and it is one of the few effective counters to paedophile friendly organisations. Recalcitrant churches have only begun to address their ongoing protection of paedophiles, since they have been subjected to serious exposure by the media and the Royal Commission. How many remedies would they have instituted without this exposure?

The exposure of crime is so important. The submission continued:

D. Organisations which employ paedophiles or cover up paedophilia should be exposed. This is far more likely to lead to wholesale improvements in procedures, standards and behaviour, than is application of modest penalty points for what the organisation can dress up as a technical infringement.

E. ACPA believes the paedophiles should sacrifice their rights to privacy about their behaviour as soon as they sexually assault children. Thereafter, the only justification for privacy for a paedophile should be the necessity to protect the privacy of survivors.

I wholeheartedly support those comments. I realise that it is difficult for the Government, as it is for all members, to find solutions to conflicting interests. However, the protection of children is of such importance that it is better to err on the side of caution than to let the children down. One of the concerns I have is about the age of a child. The legislation sometimes refers to 16 years of age and sometimes refers to 18 years of age. There are different age definitions in the bill, which concerns me. I realise that the age of consent is 16 for girls and 18 for boys. I wrote to Minister Lo Po’ on 19 August asking her to explain the differences in age. The bill does not specify male or female; it merely refers to a person. I asked Minister Lo Po’:

Could you please explain to me why the age of 16 is included without any indication if it is for a male or a female. Is this pre-empting a possible act of Parliament to lower the age of consent for males to 16?

I would appreciate your prompt and detailed response . . .

Of course, Mrs Lo Po’ replied with her usual letter signed by her private secretary, saying that she received my letter, that she was having the matters examined, and that she would write to me again. However, I never hear from her again. I wrote to Minister Lo Po’ on 9 October asking her to reply to my earlier letter. However, I never received a reply. Mrs Lo Po’ does not have the courtesy to write to members of Parliament explaining why the bill contains such discrepancies. My question must be answered. I hope the Minister in reply will answer it. Why does the legislation sometimes refer to a person aged 18 and sometimes to a person aged 16? Why does it not specify whether it is referring to a male or a female?

I want the age of consent for boys to be retained at 18. If it is lowered to 16 some people will push for it to be lowered to 14. In this regard I refer to the British experience. The House of Commons passed legislation to lower the age of consent to 16. The day the legislation was passed a leader of the London gay community said, "And now we want it to be 14." Fortunately, that proposal was rejected by the House of Lords. The same situation will occur in Australia if the age of consent is lowered. I have not decided whether I will stand for election at the next State election. However, I would be prompted to stand for election to fight issues such as the lowering of the age of consent and the adoption of children by gay couples.

The Hon. A. B. Kelly: There will be plenty of us here to fight that.

The Hon. FRANCA ARENA: That is comforting. I have not heard the Hon. A. B. Kelly speak strongly about these issues. There are many reports in the media - which I shall not refer to because of the sub judice law - that disgust me. Again I raise the important question of funding for the commission. Will there be a repeat of the Government’s poor performance with the Community Service Commission? The community will not tolerate such penny-pinching when it comes to the safety of children.

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The Child Protection (Prohibited Employment) Bill (No 3) and the Ombudsman Amendment (Child Protection and Community Services) Bill (No 3) raise other concerns. This morning I heard the Hon. P. T. Primrose sound a note of caution about abuse that could arise under the provision of bills such as the prohibited employment bill. I know how sincere and concerned the honourable member is about that issue. None of us would want innocent people maligned or victimised.

But for too long justice was not done, for too long victims were not believed and for too long paedophiles reversed the role and played the part of the victim saying that they had been seduced by the children. That claim was made even today in the newspapers! It is time society said enough is enough. I was pleased to receive a briefing on the Ombudsman bill from the Deputy Ombudsman and staff, who assured all crossbenchers that a special unit will be established in the Office of the Ombudsman comprising people with special expertise. I wish them well and trust that this unit will be established as soon as the legislation is enacted.

Amendments to the bills have been circulated and I shall speak to them in due course. The community wanted and expected a one-stop shop for the protection of children. These bills do not give this to the community. However, I am sure that the proposed amendments will go a long way to better protect our children, especially those at risk: the vulnerable ones, the forgotten ones in institutions who at times, instead of receiving the care they should expect, are abused. The only response to Roger West’s report "Who Cares?" is: our society cares.

I shall never grow tired of saying that our children are our most precious asset. As a society we shall stand condemned if we do not act to protect them. Despite their shortcomings these bills are a step forward in the protection of our children and young people. The Government has the task of finding the right person for the job of commissioner. It must be someone of integrity who has the trust of the community. No political appointment will be acceptable. I am confident that the Government would not be so silly as to make such a mistake.

The Hon. CARMEL TEBBUTT [8.32 p.m.]: I am pleased to support the Commission For Children and Young People Bill, the Ombudsman Amendment (Child Protection and Community Services) Bill and the Child Protection (Prohibited Employment) Bill. This legislation was created in response to key recommendations of the Wood royal commission paedophile inquiry. The Government tabled three draft exposure bills and consulted widely with community organisations and organisations representing young people and children. The consultation process included speaking also to 150 young people from rural, regional and urban New South Wales to gather their responses and suggestions for the creation of the Commission for Children and Young People.

I am pleased that consultation was undertaken with young people. The Commission for Children and Young People will be an independent body to promote respect and understanding of the interests and needs of children and young people in our community. These measures make New South Wales the only Australian State to establish both an independent Commission for Children and Young People outside of government and an Office of Children and Young People within government. The Government should be congratulated on that achievement. The Child Protection (Prohibited Employment) Bill (No 3) will implement recommendation 139 of the Wood royal commission. The object of this bill is to prohibit persons with convictions for serious sexual offences from working in positions of child-related employment.

The Ombudsman Amendment (Child Protection and Community Services) Bill (No 3) responds to possible conflicts of interest when agencies investigate child abuse allegations made against their staff. This bill will enable the Ombudsman to oversee certain non-government organisations that also provide care services to children, namely schools, child care and residential substitute care services. The Ombudsman will take responsibility for investigating such cases should circumstances demand it. The new screening regime is aimed at preventing child abuse by employees; this bill is intended to ensure that if abuse is alleged to have occurred an adequate response is made to the allegations.

The focus of the Commission for Children and Young People will not be limited to child protection, as was the focus of the royal commission. The Commission for Children and Young People will have a broad mandate to consider the full range of issues affecting children and young people but will ensure also that the needs and interests of vulnerable children are a priority. It is true to say that in light of the recommendations of the Wood royal commission it would have been easier to establish a Commission for Children and Young People that narrowly focused on child abuse. While sexual abuse of children is a grave issue, so too is the physical abuse, neglect and poverty of children. These issues
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are often overlooked. I am pleased that the Government has listened to submissions from the community and, in particular, has listened to young people and moved forward with a broad-based commission.

The Hon. D. F. Moppett: What about the Standing Committee on Social Issues?

The Hon. CARMEL TEBBUTT: I will refer to the committee. The commission will have the important function of promoting and monitoring the overall wellbeing of children. It will be able to recommend changes to relevant legislation, policies, practices and services. Other functions of the commission include the provision of training, research, public education and information, and advice to children and young people. One of the most significant functions of the commission’s mandate is the capacity to conduct special inquiries - with ministerial approval - into issues affecting children. The ability to conduct special inquiries brings with it significant coercive powers including powers to conduct hearings, to compel the production of information and documents, and to require individuals to give evidence at hearings.

The Commission for Children and Young People will be overseen by a newly established joint parliamentary committee on children and young people. This committee will report also to the Minister. It is important to remember that the commission is not for adults, it is for the children and young people of New South Wales. One of the most important tests of its success will be in the participation of and consultation with children and young people. I have referred already to the consultation that was undertaken with young people about the establishment of the commission. The bill includes a number of provisions to ensure that it will be a strong foundation of the commission’s work. Clause 10 sets out principles governing the work of the commission. Clause 10(b) states:

. . . the views of children are to be given serious consideration and taken into account.

The first of the commission’s functions set out in clause 11(a) is:

. . . to promote the participation of children in the making of decisions that affect their lives and to encourage government and non-government agencies to seek the participation of children appropriate to their age and maturity

Clause 13 deals with consultation with children and states:

(1) The Commission is to develop means of consulting with children that are appropriate to their age and maturity.

(2) The Commission is to use those means of consultation in exercising its functions and, in particular, before making any significant recommendations.

These provisions will provide a solid base for the establishment of the commission on which to build a significant and lasting relationship with children and young people in New South Wales. Of course, the commission will have a strong emphasis on issues relating to child abuse and neglect. The commission will continue the excellent work of the Child Protection Council over the past 13 years. The council worked tirelessly over that time to raise awareness of child abuse through ongoing community education, training and research.

Staff of the Child Protection Council will be transferred to the commission, thus ensuring that their expertise is not lost. In addition, the bill specifically provides for the expert advisory committee to include a specialist in child protection. The Government is confident that the work begun by the Child Protection Council will continue. Complaints made by or on behalf of children will continue to be investigated by the existing complaints bodies, primarily the Ombudsman, the Community Services Commission and the Health Care Complaints Commission.

Concern has been expressed by a number of organisations that the legislation does not make specific provision for a network of youth and child advocates. It is understandable that this concern has been expressed given that a number of studies and reports have highlighted the important role such a network could play in promoting the interests of children and young people. This includes the report of the Standing Committee on Social Issues entitled "Inquiry into Children’s Advocacy". As mentioned by the Hon. Franca Arena and the Hon. D. F. Moppett, that significant inquiry was undertaken by my predecessor the Hon. Ann Symonds, who chaired the social issues committee at the time.

One of the recommendations of the report was that an independent children’s advocacy network be established throughout New South Wales to be based in government agencies in areas of disadvantage, and where there is a high population of children and youth. The Hon. Ann Symonds, as chair of the committee, said in debate on this report that effective advocacy for children involved taking a pro-active or preventive approach to children’s issues. The Hon. Ann Symonds’ significant and groundbreaking work in this committee should be acknowledged in this place.

The report acknowledged that parents can often be the children’s most powerful advocate.
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However, many children do not have parents who can advocate on their behalf. I note that the Government has committed itself to giving the new commission, once established, the job of reporting on the best means of improving assistance to children who have no-one to turn to for help. Given that the statistics gathered by the social issues committee found that there are 10,000 homeless children and young people, 6,000 children in substitute care and nationally more than 1,500 children living in families that are dependent on social security support or exist just above the poverty line, the new commission must make it a new priority to investigate the best way to improve assistance to children and young people.

The other major function, and the one that has received the most attention, is employment screening. The bill provides the legislative framework for a decentralised model for employment screening that has been developed to share the work involved in screening with major government agencies that now have expertise and systems in this area. I shall refer to representations from the New South Wales Teachers Federation and the Independent Education Union on employment screening. Their concerns included definitional aspects of the bills, but, more importantly, the impact of the implementation of the legislation through regulations on teachers and others who work with children.

Despite the concerns of the unions, I congratulate them on the way they have participated in the discussion and consultation about these bills in a positive and co-operative way. As the Teachers Federation has indicated, some fundamental aspects of the implementation of the legislation will not be made clear until the regulations are drafted. The bills set up the framework for the introduction of screening procedures for employees who work with children. Further work is required to develop the operational details of the system. The Teachers Federation believes it is essential that specific guidelines be developed that clearly set standards for employment screening that can be applied in a consistent manner to all aspects of child-related employment.

I agree with the federation that it is essential to have full involvement of unions and other stakeholders in drafting the regulations. I understand that the Minister has undertaken to involve unions and other stakeholders during the process of drafting the regulations. I emphasise the importance of this consultation to ensure that the child protection aspects of the bills are inclusive of the rights of employees. There has been some concern regarding the size of the task of employment screening, and the fear from some organisations that this will swamp the work of the commission. I support the decentralised model for employment screening, as I believe it will alleviate the pressure on the commission to become tied down to employment screening above other work.

However, the degree to which employment screening could become all consuming needs to be monitored. I urge all members of the joint parliamentary committee to request reporting on this aspect of the commission’s functioning. I would like to refer to further comments from the Teachers Federation about the legislation. I quote from a letter I am sure a number of honourable members of this House have received, which contains some of their concerns:

. . . in addition to the Federation raising concerns about this bill and specifically the Employment Screening provisions within the Bill, the Labor Council has now publicly raised its concern . . .

For your information and consideration I attach a copy of these important questions . . .

Some fundamental aspects of the implementation of the legislation will not be made clear until the regulations are drafted. These regulations could potentially have a huge impact on the working lives of teachers and others who work with children. The Federation regards it as essential that there be clear involvement of unions and other stakeholders in this process.

The Federation seek undertakings from the Government that there will be real consultation with the unions involved when these regulations are being written. In addition, we seek further undertakings that there will be sufficient resources to ensure that the core business of each government agency involved will not be adversely affected.

I have already commented that the Government has given a commitment to the issues raised by the Teachers Federation, but they are important issues and they need to be put on the record. I draw attention to and thank the 150 young people who participated in the consultation surrounding the development of this important legislation. It was not surprising that the young people who were consulted put forward their views freely and constructively. The issues that young people would like the commission to take up on their behalf were broad and varied.

They included youth suicide, problems at school, how to cope when parents separate, being harassed by the police for no reason, lack of transport and entertainment options in country areas, and child abuse. It is essential that the commission should continue to consult with young people and children to ensure that its work remains meaningful
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to the members of the community for whom it exists to defend and protect. These three bills represent a significant step forward for the rights and protection of children in this State. I support the bills.

The Hon. R. S. L. JONES [8.47 p.m.]: I am pleased to speak on the Commission for Children and Young People Bill (No 2) and cognate bills. Taken together they offer us the opportunity to legislate for children’s and young people’s rights and protection. It is an opportunity that we should take up vigorously. The package consists of three interrelated bills: the Commission for Children and Young People Bill (No 2), which sets out a model for a children’s commission; and two bills introduced in late 1987, which have since been redrafted - the Ombudsman Amendment (Child Protection and Community Services) Bill (No 3) and the Child Protection (Prohibited Employment) Bill (No 3).

Under the Ombudsman Amendment (Child Protection and Community Services) Bill the Ombudsman has the power to oversee systems preventing child abuse by employees of both government and non-government agencies, as well as the power to investigate individual complaints. The Child Protection (Prohibited Employment) Bill requires employers to seek a disclosure from persons as to whether they are a prohibited person, and creates an offence for a prohibited person to remain in or engage in child-related employment. Most of my comments will centre on the Commission for Children and Young People Bill. I welcome legislation that seems to promote the wellbeing of children.

Australia, as a signatory to the United Nations Declaration on the Rights of the Child, has a responsibility to protect and respect the rights of children and young people who are among the most vulnerable citizens in our society. The position of children and young people in our society are often characterised by disfranchisement. Unable to vote or represent themselves, children and young people are often entirely dependent on their parents, friends or guardians to act with their interests in mind. Consequently, the social and economic disadvantage of children, as well as child abuse, can go unnoticed.

The revelation of institutionalised child abuse, the failure of reporting mechanisms shown by the paedophile inquiry and the recommendations made by Justice Wood put a much needed spotlight on the welfare of children. One of Justice Wood’s central recommendations was that a powerful and independent children’s commission be established which would be the pivotal point of contact for issues relating to the protection of children. His vision was a commission that would have a centre for child protection, an investigation and review unit, and an employment information centre that would provide certificates to employers in relation to persons who pose an unacceptable risk to children and young people.

For the past 12 months there has been ongoing discussion and consultation in the community about the potential role and structure of a children’s commission in New South Wales. Numerous forums have been held in which representatives from child welfare agencies, unions, private sector providers and government departments have expressed their views.

Some suggestions have been taken up in legislation and some have not. Written and verbal submissions have been provided by many groups and organisations, including the Association of Children’s Welfare Agencies, the Council of Social Service of New South Wales, the State Network of Young People in Care, the Youth Action and Policy Association, Barnardos Australia, Burnside, the Youth Justice Coalition, the National Children’s Youth Law Centre, Justice for Young People, the Council for Civil Liberties, the Teachers Federation, the Catholic Education Commission, and the Community Service Commission, just to name a few.

According to the bill, the New South Wales children’s commission will be an independent statutory organisation overseen by a joint parliamentary committee. In exercising its functions the commission is to give priority to the interests and needs of vulnerable children. The commission will be able to conduct special inquiries, with the power to summons witnesses and subpoena documents, but only with the concurrence of the Minister. The commission will also have an important residual role in screening prospective persons for child-related employment and maintaining a database of relevant apprehended violence orders and disciplinary proceedings that have been completed against a person. NCOSS is pleased with the insertion of clause 13, which provides that the commission must develop ways of consulting children and young people and use these means when exercising its functions and making recommendations.

It is also positive that a principal function of the commission is to promote the participation of children in the decision making that affects their lives and to encourage other agencies to do the same. The participation of children and young people in decision making is extremely important to
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the commission’s credibility. This is especially so when legislation that affects young people is often framed in adversarial terms and treats young people as scapegoats and as agents of social disorder. Justice for Young People has noted the introduction of the children’s commission bill in the wider context of the way in which legislation affects children and young people. It said:

Justice for Young People believes that the passing of the Commission for Children and Young People Bill 1998 is hypocritical and tokenistic at a time when youth rights are so severely under attack. The Crimes Legislation (Police and Public Safety) Bill 1998 and Children (Protection and Parental Responsibility) Bill 1997 were both supported by the major parties and both clearly discriminate against young people and contravene numerous United Nations conventions including the conventions on the rights of the child.

Justice for Young People calls for more than a passing commitment to listen to and work with young people and not to legislate against them for political gain. Further, it believes that the children’s commission could actually do a disservice to young people if it is not passed with a serious commitment by the major parties not to engage in law and order options, particularly in the lead-up to the next election. It is disappointing that there is no sign in the children’s commission bill of the children’s advocacy network that was recommended by Anne Symonds in the social issues committee inquiry into children’s advocacy and by child welfare agencies during the consultation period. A possible advocacy role for the commission is explicitly excluded in clause 16 of the bill, which states:

The Commission does not have the function of dealing directly with the complaints or concerns of particular children.

A coalition of child welfare agencies attending a forum at Parliament House unanimously agreed that the commission was the ideal place to have a one-stop-shop reference and referral service for children and young people. Such a role for the commission as well as a grassroots advocate was seen as essential to avoid the commission becoming a faceless and inaccessible organisation housed in a concrete building in suburban Sydney. One wonders whether the commission will be able to adequately fulfil its functions without such a role. Many people have expressed concern about the lack of independence of the commission with regard to, among other things, its ability to conduct inquiries of consequence. It remains to be seen whether needing ministerial approval to conduct a special inquiry will hamstring the work of the children’s commission and result in potentially politically damaging inquiries not being undertaken.

Government representatives have advised me that if the commission is not granted permission to conduct a special inquiry the commission may report to Parliament under clause 24, advising that its application for a special inquiry was rejected. I do not find this alternative particularly reassuring and I am concerned about the potential for politicisation of the commission’s functions and its ability to conduct far-reaching inquiries, particularly in the light of recent events involving the Community Services Commissioner, Roger West. While he was commissioner the Community Services Commission produced reports that sometimes criticised government departments and provided blueprints for change. For his efforts Mr West’s contract as commissioner has not been reviewed, much to the chagrin of the welfare sector - and the Opposition.

Another concern is the lack of explicit focus of the commission on child protection. There is no doubt that Justice Wood saw child protection as a central part of a children’s commission. However there is no formal way under this bill that the commission can provide input into child protection issues. Only in relation to employment screening does reference to protecting children and young people from child abuse appear. As Professor Patrick Parkinson, Chairperson of the Child Protection Legislation Review, noted on Monday 10 August:

There will inevitably be concerns that the Government is abolishing the child protection council without replacing it and that these reforms will weaken, rather than strengthen the Government’s capacity to protect children from abuse and neglect.

Monitoring the effectiveness of child protection work should be a principal function of the commission. However this role has, in part, been given to the Ombudsman under the Ombudsman Amendment (Child Protection and Community Services) Bill. I say in part because the Ombudsman is not accorded the role of monitoring child protection systems per se but those systems run by employees of designated government and non-government agencies. These new functions for the Ombudsman, provided by new section 25E of the Ombudsman Amendment (Child Protection and Community Services) Bill, will require extra funding. As I understand, the Ombudsman will not be able to perform this function properly without that funding. I ask the Minister to provide an assurance that specific extra funding will be provided to the Ombudsman for this purpose.

A broad set of concerns relate to the proposal for screening prospective employees in child-related
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employment. The bill proposes an entry level, decentralised employment screening system which will be carried out by respective government agencies, either to screen their own employees or on behalf of other non-government employers. Residual screening will be performed by the commission. There is no proposal in the bill to screen current employees in child-related employment. Employment screening is perhaps the most controversial aspect of the legislation because it represents a difficult compromise: balancing the rights of workers with the protection of children.

The royal commission concluded that special measures were required to protect children from abuse, based on the view that paedophiles tend to be recidivists, the fact that there have been low detection and conviction rates, and an inability to remove paedophiles from positions where they have access to children. As Roger West, the former commissioner of the Community Services Commission, noted at the forum convened by peak child welfare organisations and experts on 10 August, the basic point about employment screening seems very simple: the protection of children from unsuitable or potentially abusive workers. He went on to say:

But within that, the number of issues to consider, and the complexity and delicacy of those issues is . . . mind boggling.

Mr West noted that one single measure will never be enough to ensure that children are completely safe, and a multiplicity of measures is needed. Further, these measures must strike a balance - the protection of children is the primary objective, but workers rights and civil rights must not be eroded and the whole process must not be unduly disruptive to children’s education and care. Mr West expressed concern that the proposal in the bill appears not to strike this fine balance and suggested that those who represented children and other vulnerable people, as well as unions, workers, and civil libertarians, may not support the system.

A sample of the concerns about the proposed employment screening proposal raised at the forum on 10 August include: whether volunteers, those in religious orders and foster carers will be subject to employment screening due to the definition of employee; whether other persons vulnerable to abuse will be protected, such as persons with physical and intellectual disabilities; whether it is sufficient to include only those who are engaged primarily in child-related employment, ignoring the potential for gardeners and school bus drivers, for example, to have access to children; the possibility that a wide range of sensitive information will be available to employers, much of it unreliable and potentially prejudicial to innocent workers; and whether persons who have resigned without the matter being reported to police will be captured by screening.

The type of screening system that has been chosen means that it is possible that employers will be given access to a range of information, including unsubstantiated information that could potentially damage the reputation of innocent workers. This information could include prior convictions and information relating to criminal charges, whether heard, proved, dismissed, withdrawn or discharged, and information about disciplinary proceedings, irrespective of the findings of those proceedings, and any other relevant probity check. I understand the relevant probity check is intended to cover only referee checks. It is important to remember that not all teachers, nurses and child care workers are potential child abusers - in fact, very few are. The majority of persons who choose to work in child-related employment do so because they genuinely care for children. It is relevant to consider some figures provided on page 617 of the report of the paedophile inquiry:

A helpful profile of child sexual abuse is provided by a recent Judicial Committee Study of matters determined in the District Court during 1994. The study found:

•46% of proven victims were assaulted by family members;
31% by an immediate family member, generally the father;

•54% of proven victims were assaulted by a non-family member (44% by an adult known to the family, 5% by a teacher, clergyman or babysitter and 5% were assaulted by a stranger).

The system proposed in part 7 of the Commission for Children and Young People Bill requires employers, after selecting a preferred applicant, to screen that employee or arrange for screening to be conducted by an approved agency or the children’s commission. This onerous task is mandatory for jobs that are primarily child-related. However, there is no guidance in the bill as to how to complete a risk assessment. As the New South Wales Privacy Committee noted:

. . . any system of comprehensive screening is bound to identify people with minor or old convictions or recorded allegations that do not reflect their suitability to work with children. It is crucial that an employer who is required to deal with such matters is given clear guidance on how to assess appropriate risks, that the employee has a right to be heard, particularly in relation to misleading or inaccurate information and that the information itself is treated with the utmost confidentiality.

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My concern is that there appears to be no check on clauses 38(2) and 39(2), which provide for approved employers and the commission to transfer information relating to the criminal record and disciplinary proceedings of a preferred applicant to other employers. There is no qualification or limitation on the type of information that can be transferred to non-approved employers which, to my mind, should be no more than is required for the employer to make an informed decision. Unless the approved employer or the children’s commission provides a risk assessment certificate with a simple yes or no recommendation on the applicant’s suitability to work with children, I believe that the proposed system will enable sensitive or irrelevant information that could be embarrassing to the worker to be stored with and transferred between employers.

Roger West, in his 1996 report, which was co-authored with Dr Judy Cashmore of the Child Protection Council on the recruitment, screening and appointment practices of the Department of Community Services, proposed a model for an independent probity unit. The unit would access information about employees, make risk assessments and provide a recommendation based on that assessment to employers. It was argued in the report:

. . . having a single unit would be more efficient, consistent and standardised than having a number of government departments and instrumentalities, as well as service providers, all trying to conduct their own inquiries.

In light of the proposed screening system the Catholic Education Commission has requested:

. . . an assurance that any non-government agency involved in offering child-related employment (including the engagement of volunteers) will be able to engage the Commission for Children and Young People to undertake employment screening on their behalf.

The Catholic Education Commission further requests an assurance that the commission be given adequate funding to provide this service. This is important, given that the residual screening function originally envisaged for the commission is estimated to absorb around half its total budget allocation. According to the Catholic Education Commission, the children’s commission should administer employment screening for non-government agencies because it will:

•constitute an independent assessment of eligibility to work with children;

•avoid the distribution and sharing of sensitive information and confidential information relating to personnel between multiple agencies;

•provide for a consistent interpretation of information and advice accessed from police and court records; and

•ensure that appropriate and necessary records are maintained and securely managed enabling data and advice to be quickly accessed by any appeal proceedings.

The Teachers Federation is concerned that the employment screening provisions retain oppressive aspects which will affect the morale and rights of all people who work with children. The Teachers Federation states in its briefing paper:

The New South Wales Teachers Federation supports the need to ensure that children and young people are protected from physical abuse. We are concerned however, that aspects of the legislation . . . extend beyond this, to impinge on the civil, legal and industrial rights of people who work with children. The proposed legislation contains vague definitions and a wide range of investigative and record-keeping processes which might be considered trivial through to extreme.

The Teachers Federation is concerned that fear of malicious or unwarranted allegations will force teachers to rethink their whole approach to teaching and children, the effect of which may be to remove caring, nurturing and compassionate teachers from education. The example of teachers, particularly in the public education system where there is a formal disciplinary process, highlights the necessity of ensuring that information about disciplinary proceedings is securely contained and viewed by appropriate persons. On 26 August, at a forum convened by the Teachers Federation and attended by teachers from both the public and the independent system, teachers expressed their concern in light of current disciplinary processes for teachers through the case management unit. This unit, which was established in 1996, investigates any allegations of improper conduct of a sexual nature by a staff member against a student.

Information contained in incomplete or finalised investigations from the case management unit would be captured by employment screening. As a general concern the persons employed in industries where there are formal disciplinary processes are likely to have their conduct reviewed more closely than those in industries with less formal procedures, where people tend to resign rather than cause embarrassment to the school. Some concerns raised by the federation may be addressed by regulation. The Teachers Federation seeks an undertaking from the Government that there will be real consultation with all relevant unions when the regulations are written.

I look to the Government to confirm that commitment in recognition of the fact that the
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industrial rights of child-care workers will be seriously affected by the proposed employment screening system. Outside this guarantee it is essential that ministerial guidelines in clause 35, which will contain procedures and standards for employment screening, are published and contain standards relating to the issues outlined in clauses 35(2)(a), (b) and (c). I will move an amendment to this effect in Committee to ensure that these guidelines are reviewed by the joint parliamentary committee on the children’s commission after their implementation. I thank my superb adviser, Sally Girgis, for all the research she has done on this legislation.

The Hon. I. COHEN [9.05 p.m.]: The Commission for Children and Young People Bill and cognate bills have a long history. Gary Moore, Director of the Council of Social Service for New South Wales, in his speech at the public forum for the exposure drafts hosted by me on 10 August, addressed this issue. The public forum on the bills was well attended, attracting 150 participants in the Parliamentary Theatrette. The forum was sponsored by the Association of Childrens Welfare Agencies, ACWA; the New South Wales Child Protection Council, CPC; the Council of Social Service of New South Wales, NCOSS; the New South Wales State Network of Young People in Care, SNYPIC; and the Youth Action Policy Association, YAPA.

Over the last 30 years or so many have argued that children and young people have rights which require far greater attention. For at least the same period of time there have been many calls to improve the social and economic wellbeing of disadvantaged children and young people. In 1970 the International Year of the Child drew attention to and helped to create a demand for child care for those at work and those at home. The problem of child abuse and neglect was raised, but it took a back seat at that time. As unemployment grew and as homelessness surfaced, in 1985 the International Year of Youth focused government and community attention on the new social difficulties which were increasingly confronting young people.

In 1991 the United Nations produced a charter for the rights of children. This charter laid out a series of obligations and objectives which signatory nations should meet and pursue to improve the social, fiscal and emotional wellbeing of all children. In 1994 the Australian Government was a signatory to this charter. In 1994, during the last year of the former Fahey coalition Government in New South Wales, a review of the 1987 Children (Care and Protection) Act was commenced. The Carr Government, shortly after coming to office, indicated that it would continue that review. During the public consultation phase of this review the notion of a children’s commission or commissioner was raised by many key youth, children and community welfare organisations.

In 1996 the New South Wales upper House Standing Committee on Social Issues released a major report on children’s advocacy. In this report the committee canvassed the benefits to children and young people of establishing a children’s commission. The poor performance of the New South Wales care and protection system for children and young people, coupled with revelations which came out of the police royal commission and the crisis within many government departments, led to the paedophile inquiry conducted by royal commissioner James Wood and to the inquiry’s report which was released last year. That report recommended sweeping changes to the care and protection system in New South Wales, including the establishment of the children’s commission.

The Carr Government announced that it would establish a commission and, after many requests, it released a green paper on the possible roles, functions and structures of a children’s commission. That green paper was released just before Christmas last year. As a result of the green paper, three exposure draft bills were tabled in the Legislative Assembly in June this year with a view to the community being able to provide comments to the Government regarding those bills. Despite overwhelming criticism of those bills, they have not changed very much from the exposure drafts.

The Wood royal commission report on paedophilia, which was handed down in August, exposed an extremely disturbing picture of paedophilia in New South Wales. A picture of neglect, indifference and concealment emerged during the investigation which extended to almost every aspect of the preventive, investigative and prosecution processes. Serious deficiencies in the existing structures and procedures for the protection of children by those agencies and institutions responsible for their care were highlighted in the report, along with an appalling lack of co-ordination of effort or commitment. Since the report was handed down a number of measures have been taken by the Government to implement the recommendations of the royal commission, the most significant being these three cognate bills. Page 585 of volume IV of the report of the Royal Commission into the New South Wales Police Service revealed the following:

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the existence of groups of offenders prepared to co-operate with each other, and of individual offenders with significant histories of unlawful sexual contact with children that had gone undetected;

a lack of past commitment by the Police Service, other relevant government agencies with an involvement in child care and protection, and of churches and similar institutions, that collectively have failed to address the problem, or worse, have compounded it by concealment;

fundamental misunderstandings and a lack of suitable operational guidelines or protocols and of co-operation among the agencies and the institutions mentioned or of any integrated system for the protection of children;

a serious lack of community awareness of the nature and extent of the problem, a reticence to recognise and discuss it, and an absence of public education and of suitable training for those working in the field;

an absence of sufficient monitoring and screening processes for those working with children or having close contact with them in the course of their official duties;

an absence of any sufficient or organised mechanism for the support, management and rehabilitation of offenders, and of children, or adults who as children, were caught up in this activity;

an unaddressed potential for serious abuse of the rights of children to freedom from sexual contact via child pornography, prostitution and the like, along with serious inadequacies in the welfare, housing and support systems for young persons that left them particularly vulnerable to unlawful sexual and physical abuse or neglect; and

a dilatory and unsatisfactory legal framework for the prosecution of those involved in unlawful sexual activity with children which often led to system abuse of those children.

A number of agencies have a direct interest in the protection of children from abuse. They are the Department of Community Services, the Health Department, the Department of Education and Training, the Department of Sport and Recreation and the Department of Juvenile Justice. Two agencies that have a direct interest in the investigation and prosecution of abuse cases are the Police Service and the Office of the Director of Public Prosecutions. Chapter 2 of the report provides an overview and summary of the problem of paedophilia in New South Wales. On page 606 the summary states:

It is evident from this brief overview that while the problem of child sexual abuse is itself complex and very serious, the system for its management and for the protection of children is enormously complicated and fragmented, notwithstanding the Interagency Guidelines which were designed to establish an integrated case plan for individual cases. Among the many system deficiencies or complicating factors which have emerged during the course of the Royal Commission inquiry, are:

•the inconsistent and uncertain definition, usage and significance given to the terms "child sexual abuse" and "child sexual assault" as well as to the criteria for determining whether a child is "in need of care";

•the uncertainty attached to notification requirements . . .

•the absence of clear or consistent guidelines for screening those workers and volunteers who have close contact with children, or possess care and protection responsibilities in relation to them;

•the diffuse record keeping and intelligence management systems of each of the agencies involved, and the lack of any central co-ordination of such information . . .

•the lack of co-ordinated and integrated response by the key agencies to child abuse in all its forms, or of any legislative basis therefore;

•the absence of any single agency having a responsibility or capacity to oversight the interests of all the agencies and institutions, governmental or otherwise . . .

•the tension between the criminal investigation and prosecution process on the one hand, for which the Police Service and the ODPP have primary responsibility, and the children (and family) protective function on the other hand, for which the DCS has the primary responsibility . . .

•the absence of any broad-based principles or objectives for child care and protection within the various Acts which apply to the key agencies . . .

•the absence of any coherent philosophy for substitute care . . .

•the limited capacity of the DCS to provide any effective intervention where abuse occurs outside the home environment;

•the delays in the criminal investigative and court process;

•the experience of many children who either drift in and out of care, or cannot receive care at all . . .

•the failure of the system to address the problem of youth homelessness and prostitution.

The report identified many obstacles to the investigation and prosecution of child sexual abuse, the most important of which was the disclosure or reporting of child sexual abuse. On page 608 the report states:

There is a universal recognition that the disclosure and subsequent reporting of child sexual abuse falls far short of the true incidence of such abuse. There is no clear consensus as to the extent of non-disclosure or reporting save for agreement that is substantial. For example, the two studies cited by the ICAC suggest respectively that only 2% of familial and only 6% of extrafamilial child sexual abuse were ever reported to police, and that only about 10% of all child sexual assaults were notified.

Another study carried out in 1994 concluded that one in five women have suffered some form of child abuse. The royal commission points out on page 616
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that it is now universally accepted that child sexual abuse is largely underreported and that statistics of convictions and reported abuse need to be treated with caution. The report states that many more incidents of child sexual abuse are reported to government agencies such as the Department of Community Services than are ever prosecuted. Bearing those observations in mind, on page 617 the report states:

A helpful profile of child sexual abuse is provided by a recent Judicial Commission study of matters determined in the District Court during 1994. The study found:

•offenders were mostly male;

•46% of proven victims were assaulted by family members; 31% by an immediate family member, generally the father,

•54% of proven victims were assaulted by a non-family member (44% by an adult known to the family, 5% by a teacher, clergyman or babysitter and 5% were assaulted by strangers);

•72% of the proven victims were female;

•females were more likely to be abused by a family member in the family home;

•boys were more likely to be abused by a non-family member, known to the family;

•girls were more likely to have suffered prolonged abuse; and that

•boys were more likely to have been victims of single incidents.

Paedophile offenders target all types of children. The report notes on page 619:

It depends upon the offender’s personality . . . occupation, social or recreational interests, and level of income. No matter what once may have been thought, sexual abuse of children is perpetrated by people with diverse backgrounds and from all walks of life, all races and all cultures. A child sex offender who sexually abuses "rent boys", girl prostitutes or his own children, can just as easily be a wealthy or well-dressed professional with a family, as he can be an unemployed person, living alone who loiters around public toilets. There is a wide range of motives for offending and each must be looked at individually.

The report specified the need for a powerful independent children’s commission. It considered that no one department or agency could adequately discharge the obligation of the State to provide reasonable protection for children from abuse. Co-operation and co-ordination of effort are essential to the creation of a protected environment. The need for a co-ordinating agency has been acknowledged by the creation of the Child Protection Council and the Office for Children and Young People, although each has a largely advisory role.

The royal commission concluded that it is now necessary to establish a new commission with appropriate powers and capacity to oversee and co-ordinate the delivery of service for the protection of children from abuse - including sexual, physical and emotional abuse - and neglect. The commission should be set up in the context of a rationalisation of the roles of existing agencies and it should have more than a mere advisory role.

The report set out the resources and powers the commission would need to operate effectively. It would need to ensure that it can achieve greater accountability and transparency across the spectrum of child protection services; provide a centre of excellence which can be relied upon for up-to-date professional practice and independent advice on policy, planning and professional review which agencies will respect as a necessary step for improvement in the way in which the community protects children; facilitate a confidential and professional checking process in aid of the pre-employment vetting of those engaged in activities involving the care or supervision of children; operate a system under which certificates can be issued in relation to those who are considered to constitute an unacceptable risk to children, thereby precluding them from direct access to children whether in paid or voluntary employment; secure effective co-ordination of effort by the agencies and departments involved in child protection; and act as an effective and independent advocate for children’s interests.

The report also stated that, importantly, the Commission for Children and Young People should have actual and perceived independence from government departments and agencies that deliver relevant services so that it can report fearlessly and objectively on matters within its field. That vision for the commission is important when compared with the legislation. The bill has been criticised by the welfare lobby and by unions, particularly the New South Wales Teachers Federation and the New South Wales Nurses Association. Many of the welfare lobby concerns were raised in the public forum I hosted. I will refer to some of these concerns.

The bill enables the commissioner to be appointed for a term of only four years. The commissioner may not be appointed for more than two successive terms. That is a short period in comparison to the terms of commissioners of similar bodies. In other legislation a five-year or seven-year appointment is the norm. The New South Wales Law Reform Commissioner, which is a full-time position, is appointed for seven years and the Community Services Commissioner has a five-year
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appointment. Some of the problems inherent in a four-year time frame are that a commissioner needs time to settle into his or her position without having to worry about reappointment. Although a commissioner can be reappointed for two four-year periods, uncertainty about reappointment begins about nine months before reappointment is due.

The children’s commissioner will be in a similar situation to State and Federal Government members, who have a couple of years to do the work and then must focus on a re-election. A commissioner will focus on reappointment in the last year of the term of appointment. In the opinion of the Greens that is a real constraint on the independence of the commissioner. We consider that a five-year or seven-year term is more beneficial and appropriate.

The clause in the bill that covers rights, objects and principles, particularly CROC, is weak. The Greens will move amendments at the Committee stage to strengthen that clause. The principles clause is an important clause in legislation. It sets out the framework and flavour of the legislation and can also be used as a guide to interpret the legislation. The Greens want this legislation’s principles clause modelled on selected articles of the United Nations Declaration on the Rights of the Child. Dr Judy Cashmore, Chair of the Child Protection Council, raised the issues of objects, principles and rights in her speech at the forum. She said:

I suppose it’s no great surprise that what we see is a reference to "interests and needs" rather than rights. Childrens’ rights in particular have become a particular "no no" in many areas and there is a swing to increasing conservatism, in particular in relation to rights. So I guess in some ways it’s no great surprise not to see any reference to rights, but it’s disappointing in that Australia is still a signatory to the UN Convention on the Rights of Children and this would be one body which could take a look at how those rights are being implemented.

And in fact, if you look at children’s rights, despite some of the rhetoric that’s come from various groups, they actually do put a primacy on the parental-child relationship, so I don’t think this is as threatening as a number of people would have us believe. Let’s compare that with what we see in other bodies overseas - in particular, Norway and Sweden - which is the "duty to promote the interests of children vis-a-vis private and public authorities", and there is reference to rights as well elsewhere - and if you look at Sweden, "to safeguard the rights and interests of children and young people as laid out in the Convention" . . . What we would like to see, what a number of us would like to see there, are some objects and principles.

A paper written by Cashmore and Parkinson after the forum pointed out:

Section 12 requires the Commission to give priority to the "interests and needs" of vulnerable children but makes no mention of rights. A pole taken at the Forum on 10 August 1998 indicated considerable consensus about the importance of the Children’s Commission having a duty to monitor compliance within NSW with Australia’s obligations under the UN Convention on the Rights of the Child. This would position the NSW Commission for Children and Young People as a significant body for children and young people in international terms, especially in light of the commendable inclusion of the promotion of participation by children and young people which is one of the most significant articles in the Convention - article 12. This would not give rise to enforceable rights.

The location of employment screening units is potentially one of the most problematic issues in the establishment of the Commission for Children and Young People. Privacy, individual rights, procedural fairness and obtaining the right balance between employees’ rights and children’s rights are difficult matters. The Greens are concerned about the location of the employment screening unit within the commission. Many individuals and organisations have expressed concern about that matter and consider that the employment screening unit should be located within a body such as the Independent Commission Against Corruption. The Cashmore and Parkinson paper referring to the matter of the employment screening unit, argued:

One other major concern is the location of employment screening within the Commission. There are real concerns about the likelihood of this function "swamping" the other numerous functions of the Commission. There are three issues here. The first is that unless there is ongoing budgetary segregation of funding for the Commission’s policy work there is a danger that most available funds will be taken up by employment screening. Secondly, the employment screening work may attract controversy to the Commission as individuals complain about risk assessments, thereby detracting from its other work. Thirdly, location within the Commission will require some strategies for ensuring that only members of the employment screening unit have access to confidential information. For these reasons, its location within the Commission is seen as quite inappropriate and antithetical to the other functions of the Commission.

In correspondence to my office the Disability Safeguards Coalition said:

The employment screening function is proposed as a core function of the Commission for Children and Young People. Disability Safeguard Coalition is extremely concerned that this function has been included within the CCYP. Together with key disability groups, Disability Safeguards argued strongly that people with disabilities are at least as vulnerable and in need of the protections promised in an employment screening program. However, placing employment screening within the CCYP makes it completely unacceptable to fulfil this same probity function in relation to staff who work with people with disabilities.

The Commission for Children and Young People has no power to initiate inquiries on its own motion.
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Special inquiries can only be conducted at the request of or with the approval of the Minister involved. The powers that are attached to those special inquiries are specific to inquiries approved by the Government and by the Minister. That hardly makes for an independent watchdog. Ministerial discretion is involved as to whether a special inquiry will be held. The Minister may not recommend an inquiry, even though one is badly needed, because the Government fears the exposure and political fallout that may result from it.

That power is different to the power of the Community Services Commission, which has an independent power "to inquire, on its own initiative or at the request of the Minister, into matters affecting service providers". The Greens consider that the commission should be able to initiate its own inquiries without any ministerial control over the subject matter. The Disability Safeguards Coalition, in a letter to my office dated 6 November, stated:

The Disability Safeguards Coalition strongly believes that if the Commission for Children and Young people is to have any opportunity for success, it is critical that it has special far reaching powers to initiate reviews and reports into any area of law, policy or practice affecting children and young people.

Disability Safeguards Coalition is concerned that the bill is establishing a weak and toothless tiger that will not have the power, influence or capacity to make a difference for children and young people.

The Greens are also concerned that the bill will provide inadequate protection for employees. The Parkinson and Cashmore paper stated:

There are significant confidentiality and natural justice issues involved in employment screening, and in particular the model proposed in these Bills.

Clause 38(2) of the children’s commission bill allows the commission or another approved employer to reveal any information to a prospective employer that is disclosed by the employment screening process. The Government’s proposal is that the information obtained from the police database should be capable of being shared with the employer, subject to such guidelines as the Minister may issue under clause 35. According to clause 38(3), the information that may be disclosed to a prospective employer includes information relating to convictions and criminal charges, and whether or not they have been heard, proved, dismissed, withdrawn or discharged.

That requirement has significant privacy implications for prospective employees, because the range of employers who may become aware of such information is potentially large and the possible impact in small communities is considerable. The proposed employment procedure would leave the decision ultimately with the employer as to whether to engage someone whose employment is not otherwise prohibited under the Child Protection (Prohibited Employment) Bill. The employer, not a central unit, must decide whether to employ a person. Employers may not be qualified to assess the significance of withdrawn charges of child abuse.

The royal commission envisaged that a specialist unit in the commission would make the risk assessment based on confidential information that it can access. It would then determine whether an unacceptable risk certificate should be issued. This method should ensure the confidentiality of the information that the commission would have access to and would mean that a consistent test is applied for risk assessment. The Greens are very concerned about employers having access to so much prejudicial information and would prefer a specialist unit to deal with the assessments. Regarding child protection issues and the Child Protection Council, many speakers at the public forum stressed that the bills failed to adequately address the issue of child protection. Patrick Parkinson said:

There is no reference in the list of priorities to children at risk of child abuse and neglect, none. They’re caught up, of course, in "vulnerable children" perhaps, but as a specific priority of the Commission, child protection is there and if you analyse the whole Bill you will find that the one thing that is not there in this Bill, apart from employment screening, is any mention of child protection. Wood recommended that there should be a powerful organisation monitoring the work of child protection in NSW and the one thing this Bill is not about specifically is child protection. This is an extraordinary omission in the Bill.

The first print of the bill has not done anything to remedy this omission. Speakers also raised concern about the abolition of the Child Protection Council. Patrick Parkinson said:

I am totally baffled by this Bill on this issue - I cannot understand how with all the emphasis on child protection, with this Bill saying it is implementing the Wood Royal Commission, which has come out of concerns about child protection, with the equality of the work the Child Protection Council has done over the last few years - it has an international reputation for education and training work - with all of that I cannot understand how the Government can want to abolish the Child Protection Council without having any specific reference in the Bill to child protection as part of the Commission’s work. There is no Centre for Child Protection in this Bill; child protection is not specifically a priority area of the Commission, there is no requirement or function of the Commission to specifically do the work of child protection in NSW.

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The Ombudsman has an important role. The Ombudsman has to keep the overall child protection and child abuse prevention systems under scrutiny. At the forum Roger West, the community services commissioner, said:

This seems just a little surprising when we’re talking about a Children’s Commission coming into existence, but it is the Ombudsman, not the Children’s Commission, that is required and empowered to keep the overall child protection and child abuse prevention systems in the State under scrutiny insofar as they relate to employees of those designated agencies and it makes it an over-arching child protection watchdog.

The bill requires that the head of a designated government or non-government agency must notify the Ombudsman of any child abuse allegation against or child abuse conviction of an employee and whether the agency proposes to take any disciplinary or other action in relation to the employee. The reasons, and any written submission made regarding the allegation or conviction that the employee wishes to have considered in determining disciplinary or other action taken, must also be submitted. The Ombudsman is empowered to monitor the progress of internal investigations carried out by those designated agencies into child abuse allegations. The Ombudsman can sit in on their interviews as an observer, review the evidence, receive reports, et cetera.

Finally, the Ombudsman may choose to carry out those investigations himself. As Roger West pointed out the main issue is where the Commission for Children and Young People fits into all of this. The commission is not mentioned in the bill, although it is supposed to be the overarching child protection watchdog. Where will the Ombudsman’s role end and the commission’s begin? Regarding youth advocates, the Standing Committee on Social Issues report entitled "Inquiry into Children’s Advocacy" was tabled in September 1996. The inquiry made 37 recommendations and of particular relevance to this bill are recommendations Nos 6 and 11. Recommendation 6 states:

That the Attorney General establish within the Legal Aid Commission a Children’s Section, which is adequately resourced and staffed, to undertake matters in relation to juvenile criminal matters and care and protection matters throughout New South Wales. That Section shall be staffed with both solicitors and social workers.

Recommendation No. 11 states:

That the Attorney General extend funding to Community Legal Centres so that broad-based legal advocacy on a range of issues can be provided to children and young people throughout New South Wales.

As Patrick Parkinson pointed out in his forum speech, there is no mention anywhere in the bill of youth advocates. Explaining why youth advocates are necessary, Patrick Parkinson stated:

The commission will be in an office in a tower block in the City or Parramatta unless it has ways of connecting to the community, and one way in which it can do that is to have youth advocates who are going out into the community and bringing things back from children and young people, able to pick up on the issues, able to advocate for children and young people within the government as a whole. These advocates could be the bridge between the Commission and children and young people.

In other words, they could act as outreachers to vulnerable children and young people. A pertinent letter to my office from the Youth Justice Coalition regarding the exposure draft stated:

•there is no focus on rights, the Bill identifies a broad range of children’s issues but there is no reference to the human rights of children. This is in comparison with the Commissions in Norway, Sweden and the proposal in the UK where monitoring compliance with the Convention on the Rights of the Child is a key function.

•there is no focus on youth advocacy despite the Wood Report and the Advocacy Report recommendations.

The letter further stated:

The lack of individual advocacy for children has been identified as a significant factor in the failure of systems to respond to their needs. The failure of existing complaints mechanisms to adequately respond to complaints by children is due to the difficulties they face in pursuing complaints. Young people don’t use complaints procedures for fear of retribution, or because the procedures are too lengthy, daunting and inappropriate for young people. Individual advocacy is one part of the solution to this problem.

•there is no one stop shop central information and referral source for children and young people about complaints, advocacy and related issues.

•there is no focus on child protection, no real independence, and employment screening is inappropriately placed in the Commission. YJC supports the establishment of an independent probity unit with a statutory base.

A further letter from the Youth Justice Coalition stated:

The Youth Justice Coalition has been concerned that the proposed Children’s Commission does not include the Children’s Advocacy Network which was initially recommended in the Social Issues Standing Committee Inquiry into Children’s Advocacy, and supported by the Wood Royal Commission recommendations for a Children’s Commission.

The coalition has gathered signatures on a petition to express support for the advocacy network. Jan Loughman of the coalition stated in her letter:

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We gathered signatures on a petition to express support for the Advocacy Network. I am not confident that the petition is in a form that can be tabled in Parliament however we would appreciate your making any use of the petition that you see is appropriate to argue for the inclusion of the Advocacy Network..

It is a very substantial petition which the coalition has forwarded to me. It states:

We, the undersigned petitioners firmly believe that the NSW Children’s Commission should provide individual advocates for children and young people. We agree with the proposal outlined in the Wood Royal Commission Report that the Children’s Commission provide the structure for the proposed network of 20 advocates proposed in the Inquiry into Children’s Advocacy Report.

I think it caps the real importance of reform in this area. Certainly, considering the amount of debate about the care and protection of children in the community, it is an issue that I am confident Parliament will deal with very seriously. I hope, as do many other honourable members, to see the rights of children promoted. In conclusion, I would like to thank Jules Bastable from my office who has put in a great deal of time and energy in the preparation of this work.

The Hon. Dr A. CHESTERFIELD-EVANS [9.40 p.m.]: The Wood royal commission was a landmark for New South Wales. Much has flowed from the recommendations that have benefited the people and particularly the children of New South Wales. It is a shame and a missed opportunity that in this collection of bills the Government has not had the same steel in its back that Justice Wood had. The bills are a pale imitation. They gave an opportunity to state loudly and proudly what the children of our State should expect from the law-makers and the Government agencies.

Instead, in the briefing notes the key functions of the bill as listed as "community support and employment screening". Where are the children? The whole focus is on adults. That is wrong! It is not as though the Government had to look far for the right words; only as far as the United Nations Declaration on the Rights of the Child. The object and function of the bill should be the protection of the rights of the child and advocacy for the rights of the child. A number of groups in their submissions mentioned the need for a network of child advocates. This is extremely important. There must be people who will actively pursue the fight for children’s rights. It is also essential that children themselves have input into this process. There is no mechanism for this. Our society is very poor at tolerating diversity of views.

Roger West, the community services commissioner, spoke up in a way that most people thought was both competent in substance and well within the ambit of his role, but his employment contract has not been renewed. He was not of the opinion that he had resigned. The message is clear to those who make politically inconvenient statements. A contract - which is for a limited period and certainly not a career - will be terminated or, at least, not renewed. The Government wants "yes" people, not people who speak up about problems as they are. In my inaugural speech I alluded to the fact that it is interesting that the media is far more interested in people who speak from the point of view of a single-interest expertise than those who speak from any party political perspective. That is because those people are held in higher esteem than we of the political system. People with enough expertise to know and enough courage to speak out are rare. For all its faults, the media is astute enough to recognise what is rare and what is not. Politicians bickering and spin-doctoring truth are plentiful: fearless advocates are news.

Since coming into this House I have been continually asked to decide between two unpleasant options in the wrong frame of reference. This is particularly the case with regard to drug, gambling or law and order bills. A bad situation is tackled by the incorrect strategy and then we are asked to escalate the strength of the response so that it becomes unclear whether the measure is a solution or an exacerbating cause of what it is supposed to address. This bill is not quite so bad. It is one of those bills about which we say, "Well, it’s better than nothing". We wonder why the Government is not bold; why it never tries to get it right the first time.

It is a great disappointment that the Children’s Commission does not have an advocacy role. If dismissed or not re-employed the head of the Commission will not be able to cite the law as giving some legitimacy for an advocacy role, and challenge the dismissal. He or she will have to go, like Mr West, with as much courage and dignity as can be mustered. I do not know how much Mr West had to leave unsaid. Perhaps he said less than he thought and also lessened his actions in order to remain in a job that he was committed to. Perhaps he did his job to the full extent possible, risked his own career and lost. At any rate, despite this House praising his work, he lost his job. Any person working in an advisory capacity such as that envisaged by this legislation will muzzle themselves more than Mr West did and do less than he did for fear of dismissal.

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Children need adult advocates. It is difficult for any disadvantaged group to know the root of its problems in a social sense, as it requires an understanding of how society works. It is one thing to be able to define a problem; it is another to understand its roots; yet another to work out a solution; and a further step to advocate this solution through the competing interests and pressures of the political system.

Some years ago I was working in a country town as a general practitioner. There were some social problems and I asked what social services were available as I needed a marriage counsellor for a couple who were having some troubles. There were crisis centres for almost every possible intervention that one could think of, except marriage guidance. I realised that in our political system if you do not have a political advocate, however worthy your cause, you will get nowhere. However, in this bill there is no provision for an advocate. It is merely an advisory body lumbered with a function that could become very controversial from a civil liberties point of view. I am reminded of that wonderful play by Arthur Miller, The Crucible, where a well-intentioned tribunal came severely off the rails.

The concept of this process needing supervision is a good one. It is pleasing to note that the Ombudsman has this function even though the welfare lobby was keen that it be vested in the community services commissioner, perhaps in deference to the excellence of Roger West. The Minister devoted an inordinate amount of her second reading speech to employment screening. The protocols for employment screening will be put in place by this bill and it will really be a mechanical function after that, but it is also necessary that there be an examination of existing areas. I have received very strong representations to the effect that some areas within the Department of Community Services still harbour paedophiles, but I do not think the commission can be responsible for this.

It would be a travesty if it came to pass that the commission was spending all its time and money on employment screening rather than turning its mind to intelligent solutions to the problems of child abuse and the promotion of children’s rights. It appears to me that the Police Service would be a more appropriate body to fulfil this screening function. A friend of mine who took over as manager of a long-stay facility for the mentally disabled came face to face with longstanding practices. She called in the police and charges were laid. So action can occur in that sort of situation. It is also a matter of some concern that the commission will need the approval of the Minister to begin a special inquiry. It is all about political safety!

There may be any number of reasons that a Minister may seek to obstruct a special inquiry, and this could severely curtail the power of the commission to do a truly effective and bipartisan job. If the Government has not enough courage for an advocacy role, why should we believe that it will allow an inquiry that has the potential to be a far more politically hazardous circumstance? As always, apart from the guidance of the Act that is in place, the success of the commission will depend largely on the commissioner and on the staff that he or she can gather together. The commission’s success will also be dependent on having adequate funding. It is long and sordid history that governments discover that the quickest way to silence a rogue agency is to starve it of funds. It is even quicker than lopping off its head, if the head’s contract has a few years to run.

Let us hope that the government elected in March 1999, whatever its political persuasion, has the will and the conscience to back up the fine words that have been spoken in this Chamber. The Government would score more points with young people by having the guts to admit that drugs are a health problem rather than a law and order problem. It will not admit that. That is a sad indictment of this Government. A number of the amendments goes some way to addressing the shortcomings of these bills. Hopefully, after the Committee stage, we will have legislation that is more sharply focused on the needs of the children of this State.

The Hon. HELEN SHAM-HO [9.51 p.m.]: I support the Government’s legislative package in its attempt to increase protection for children and young people, especially those who are most vulnerable to abuse. The package contains three bills: the Commission for Children and Young People Bill (No 2), the Child Protection (Prohibited Employment) Bill, and the Ombudsman Amendment (Child Protection and Community Services) Bill. The Commission for Children and Young People Bill (No 2) will establish an independent Commission for Children and Young People, with the key functions of community support and employment screening, in accordance with the recommendations of the Wood royal commission paedophile inquiry.

The commission, an independent statutory body overseen by a new joint parliament committee, will be charged with promoting respect and understanding of the interests and needs of children
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and young people and will advise government of action it should take in this respect. The commission will have a broad mandate to look at a wide range of issues affecting children, but it will give priority to the needs and interests of vulnerable children.

In particular, the commission will have a special capacity to conduct special inquiries into issues affecting children and young people, although this power is curtailed by the requirement, contained in clause 17(1), that the Minister must "require" any such inquiry. I have a problem with this provision, for it will restrict the independence of the commission. However, once permission is granted, the commission has substantial coercive powers: to conduct hearings, compel production of information and documents, and require individuals to give evidence.

The object of the Child Protection (Prohibited Employment) Bill is to prohibit persons with convictions for serious sexual offences from working in positions of child-related employment. All current and prospective employees will be asked to declare whether they have any convictions for a serious sex offence. If they do, they will be prohibited from continuing in such employment. Finally, the Ombudsman Amendment (Child Protection and Community Services) Bill addresses possible shortcomings and conflicts of interest where agencies make investigations against their own staff. It enables the independent investigation of allegations of child abuse by employees of government agencies.

This legislation is necessary to give effect to an agreement between the Ombudsman and the Community Services Commission in relation to how they will share their jurisdiction, because the Community Services Commission legislation currently prohibits the Ombudsman from investigating any matters, including allegations against staff, within the jurisdiction of the Community Services Commission. Schedule 1 will enable the Ombudsman to investigate allegations of child abuse against employees of designated government and non-government agencies. Schedule 2 will enable the Ombudsman and the Community Services Commissioner to share jurisdictions and therefore enter into agreements about which organisation will deal with a particular kind or class of arrangement.

I welcome this important step towards providing much-needed protection to children and young people, and particularly the long-awaited introduction of an independent Children and Young People Commission. Obviously, the wellbeing of our children should be amongst this Parliament’s primary concerns, especially given the findings and recommendations of the Wood royal commission. However, a number of questions and concerns have been raised in relation to this legislative package. Those include whether or not the definition of "employment" covers religious orders; the precise definition of "child abuse", which is currently extremely broad; and the bill’s lack of coverage of foster carers.

While recognising these important issues, I would like to concentrate on a few fundamental concerns raised by the bills. In my opinion, the most important of those is the disappointing failure of the Commission for Children and Young People Bill to create a truly independent and effective commission such as that established in New Zealand. I alluded to that point earlier. While the commission is given broad powers related to the conduct of a special inquiry, those powers are only available where such an inquiry has been "requested" by the Minister. Obviously, as long as the commissioner’s powers are dependent on government approval, the children and young people commission will be dangerously vulnerable to political influences.

Though it is clearly preferable that any special inquiry undertaken by the commission is approved by government, in that such approval will mean that government agencies will be encouraged to co-operate in the inquiry, and the commission’s recommendations are more likely to be acted upon, it is also necessary to provide for situations in which the commission feels compelled to undertake an inquiry that threatens to conflict with government’s political interest.

It is essential that the Commission for Children and Young People be independent and that it be perceived by the community as an independent and strong crusader for children’s interests, and not as susceptible to the political concerns of the government of the day. I understand that the Opposition will move an amendment of the bill to address this issue. I will strongly support an amendment that empowers the commissioner to conduct a truly independent inquiry, regardless of the approval of the Minister.

In a related matter, clause 14, entitled "Co-operation with other agencies", places all responsibility for co-operation on the commission. In order to enhance the powers of the commission, government and non-government agencies should be required to co-operate with the commission. A point of concern has been raised by various interest groups in relation to the screening process introduced in this legislative package.

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The bills establish the legislative framework for screening people who work in child-related employment in government and non-government agencies. Because details of the screening process will be set out in regulations, there is some disquiet, particularly from the Teachers Federation and the Nurses Association, about how the system eventually will operate. I hope that the Government will undertake to consult fully with such interested parties in the drafting of the regulations on employment screening.

The legislation sets up mandatory screening of preferred applicants for all paid positions primarily involving direct, unsupervised contact with children, and only optional screening for anyone else - including volunteers, students and others on placements - in positions involving direct unsupervised contact with children. Screening will involve a check of national criminal history information, that is, criminal charges and convictions for serious sex offences and child abuse, completed disciplinary proceedings relating to sexual misconduct, violent behaviour or child abuse by an employee, and apprehended violence orders taken out by police relating to sexual or physical assault of children. Government agencies will be responsible for checking their own staff, the staff of their funded and licensed services, and others in the industry. The commission will screen staff of other organisations, undertake risk assessments and develop screening-related projects.

Much opposition to the legislation has focused on the potential misuse of confidential information within the screening process. In particular, a concern has been raised by the New South Wales Law Society in relation to clause 38(3)(b) of the Commission for Children and Young People Bill (No 2), which permits the disclosure by the Commissioner of Police to the proposed commission and employers approved by the Minister, and subsequently to other employers, of "information relating to criminal charges, whether or not heard, proven, dismissed or discharged". Clause 38 states that such information "may" be disclosed, without specifying what process will be used to ensure that such information will be provided in a consistent and fair manner and in accordance with the principles of natural justice.

These provisions have caused objection amongst those employed in child-care-related industries who feel that the disclosure of unproven criminal charges on their employment record will amount to a denial of natural justice, suggesting that they are somehow tainted or less than innocent even when the charges were eventually dismissed. They argue that once such matters are brought to the attention of potential employers they will be likely to decline employing the people concerned despite the fact that the charges laid against them could have been completely baseless.

I appreciate these concerns and am sympathetic to them but I understand that any moves to provide stronger protection for children’s rights and wellbeing must be balanced to some extent against the rights of others, including those employed to care for and educate young people. Nevertheless, children and young people are among the most vulnerable people in our community and need our protection. All children have the right to grow up in an environment free from unlawful sexual interference and violence. I strongly support people with a background of sexual misconduct in relation to children, sex offences or violence against others being prohibited from being employed in positions involving unsupervised interaction with children and young people.

If this prohibition is to be effective and not merely symbolic, the police commissioner must be empowered to disclose information, where appropriate, relating to any criminal charges laid against a prospective employee, even if the charges were eventually dismissed or discharged. This will not necessarily result in any great injustice to potential employees because background information relating to any charges, including whether they were discharged or dismissed, will also be disclosed.

One has to trust the judgment of both the commission and the prospective employers to ascertain whether the disclosed information is of a real and serious nature. Furthermore, I trust that the police commissioner will use the discretion granted to him discerningly - disclosing only those matters which have been substantiated by evidence, at least to a certain extent, even if the relevant person was not eventually convicted of the charge.

As I said earlier, I can understand the concern raised by many groups that the legislation fails to provide penalties for false and malicious allegations. In my opinion such penalties would provide an important balance whilst recognising the rights of those in child-related employment who should be given protection against false and malicious allegations. I will support the foreshadowed Greens amendment in this regard in Committee. The New South Wales Teachers Federation has raised similar concerns to those of the Law Society. Many of the federation’s members feel, not without some justification, that the community’s increasing desire to afford protection to children has resulted in unfair
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suspicion of the teaching profession as a whole. We must achieve a realistic balance whereby children are assured protection from abuse but at the same time people employed in child-related jobs do not feel unduly targeted.

There are thousands of wonderful people employed with children and young people throughout New South Wales. They should not be afraid to show their natural, genuine and healthy affection for the young people they work with. It is a sad and unfortunate reality of the current community climate that many males are choosing not to go into employment in childhood education for fear that they will be subjected to suspicion and false allegations of child sex abuse. Achieving a balance between child protection and these people’s rights is a difficult matter. However, providing penalties for the making of false and malicious allegations will go some way towards meeting the concerns of teachers and others employed in child-related occupations.

The Teachers Federation is also concerned that the system will be unfair in providing an advantage to teachers in the private school system. The federation points out that in many private schools and religious orders disciplinary procedures are closed and perhaps less rigid than those in the public school system. Often a teacher at a private school who has been involved in numerous sexual deviancy offences will be asked quietly to leave without the incidents being placed on his or her employment record. Conceivably, such a person could be selected for a new job in preference to a public school teacher because his or her record is clear while the other has a record of a complaint which was ultimately dismissed.

I agree that this situation is unfair. However, rather than making the screening procedure in the public education system equivalent to that in the private sector, where disclosure is inadequate, we should do the opposite and require private education institutions, including those of religious orders, to follow the procedures of the public school system in relation to disciplinary proceedings and employment records.

A related issue is raised by the Catholic Education Commission, representing New South Wales Catholic agencies including schools, hospitals and social welfare providers. They employ some 40,000 persons, as well as many volunteers, working directly with children or with the potential in the course of their employment to work directly with children.

The Catholic Education Commission seeks an assurance that any non-government agency involved in offering child-related employment, including the engagement of volunteers, will be able to engage the Commission for Children and Young People to undertake employment screening on its behalf. This is a good idea, and it is provided for in clause 36(1)(c) of the Commission for Children and Young People Bill (No 2). However, the bill includes no requirement that the commission undertake to provide this service if requested, and there has been no assurance from the Government that the commission will be adequately resourced to do so. I hope that the Government will consider this point.

To me, it is highly desirable that non-government agencies should be able to access employment screening comparable to that available to equivalent government agencies. The protection of all children and young people, whether in relation to private or public institutions, must be adequate. I must emphasise before I close that it is imperative that the power of the commission to provide this protection is not compromised by underresourcing or restrictions on the commission’s independence. I support the bill and commend the Government for its introduction.

Debate adjourned on motion by the Hon. Dorothy Isaksen.