Child Protection and Other Legislation Amendment Bill 2020

On 18 January 2021, Queensland Law Society made a submission to the parliamentary Community Support and Services Committee on the Child Protection and Other Legislation Amendment Bill 2020.

Background

The Bill was introduced by the Minister for Children and Youth Justice and Minister for Multicultural Affairs on 3 December 2020. It largely replicated a previous Bill which lapsed when Parliament was prorogued for the 2020 Queensland state election.

The Bill sought to address the findings delivered by Deputy State Coroner Bentley on 2 June 2020, following the inquest into the death of Mason Jet Lee. In particular, the Bill responded to recommendation 6(b) of the findings, “that the government consider whether the Adoption Act 2009 (Qld) should similarly reflect the 2018 amendments to the Adoption Act 2000 (NSW), expecting children to be permanently placed through out of home adoptions within 24 months of entering the department’s care”.¹

As outlined in the explanatory notes, “the objectives of the Bill are to:

• enhance the approach to permanency under the Child Protection Act 1999
• clarify that adoption is an option for achieving permanency for children in care, as part of the suite of alternative long-term care options available, and
• clarify the importance of and promote alternative permanency options for children subject to a child protection order granting long-term guardianship to the chief executive.

The Bill also included a technical amendment to the Adoption Act 2009 to allow the chief executive of the Department of Children, Youth Justice and Multicultural Affairs to apply for final adoption orders for a small number of children from overseas.²

Our submission focused on three particular issues raised by the Bill, including:

• Clause 8 – Amendment of s5BA – (Principles for achieving permanency for a child)
• Clause 9 – Insertion of new section 51VAA – (Review of the requirements for children under long-term guardianship of chief executive.
• The lack of adequate funding for legal assistance services in the child protection jurisdiction.

1. Clause 8 – Amendment of s5BA (Principles for achieving permanency for a child)

The Society did not support the amendment to s5BA of the Child Protection Act 1999 (CPA),for the following reasons:

• Primarily, we considered the amendment unnecessary as the permanent need met by adoption is already met by ‘permanent care orders’ (PCOs) (s61(g) CPA). In many respects, PCOs may be preferable to adoption orders, providing increased flexibility for children in the system, while still ensuring a sense of permanence and stability. Significantly, PCOs (unlike adoption) can facilitate continued connectedness with family, community, culture, identity and language.
• The above concern takes on particular relevance with respect to Aboriginal and Torres Strait Islander children. It is vital that when Aboriginal and Torres Strait Islander children are placed in out-of-home care they maintain a connection to culture to the maximum extent possible. Significantly, it appears that the provision does not accord with s5C of the Child Protection Act 1999 or s6 and s7 of the Adoption Act 2009. Our submission advocated for increased consultation with Elders and ATSI communities with respect to potential negative impacts of the reforms.
•  Further, the context of this amendment was the inquiry into the death of Mason Jett Lee. Mason was never placed in out-of-home care and was not an Aboriginal or Torres Strait Islander child. Arguably, the amendments are not appropriately adapted to the unique position and challenges of this community.
• The two- year timeframe for parents to address issues of concern is too brief, especially when considering the multifaceted issues (including, for example, intergenerational trauma and geographic disadvantage) which can affect families.
• Clause 8 may cause difficulties for parents who have an impairment or disability. Clarification is needed regarding support and funding arrangements for these families.
• Clause 8 conflicts with rights protected under the Human Rights Act 2019 (HRA), including to privacy and reputation (s25), family (s26), and cultural rights (s27-28). Given PCOs can achieve the objective of the Bill with less impact on these rights, the clause is not necessary (see s13 HRA; see also the United Nations Declaration on the Rights of Indigenous Peoples and the United Nations Convention on the Rights of the Child).
• The Society received reports that there have been instances of insufficient compliance with the Charter of Rights for Children in Care, as set out in Sch 1 CPA. Due to funding and resourcing constraints, it is possible that best-quality case work and evidence is not being presented to courts and departmental decision-makers. This has significant implications for children entering or in the system. A review of this situation was considered necessary before these reforms proceeded.

2. Clause 9 – Insertion of new section 51VAA

Clause 9 of the Bill sought to insert a new provision to include review of the requirements for children under long-term guardianship of the chief executive. QLS was generally supportive of the review process for long-term guardianship orders as contemplated by section 51VAA. However, we harbour concerns about funding the implementation of these reviews. These concerns are particularly relevant in light of data from the Department of Child Safety, Youth and Women showing an increasing trend of children subject to long-term child protection orders.

3. Funding

Finally, the submission addressed the chronic lack of funding for legal assistance services in the child protection jurisdiction generally. We advocated for increased funding for these services to protect and promote the best interests of Queensland’s young people and their families.

Committee report on the Bill

The committee released its report on 12 February 2021, recommending the Bill be passed without amendment. Notably, the Society’s advocacy was foregrounded heavily in the report, being referenced 45 times. Furthermore, many of our key arguments were supported by other stakeholders.

Passing of the Bill

The Bill was passed without amendment on 23 March 2021, and given assent on 7 April 2021. Part 3, amending the Child Protection Act 1999, will commence on a date to be set by proclamation.

Acknowledgement: We would like to thank members of the QLS Children’s Law Committee, Human Rights and Public Law Committee, and First Nations Legal Policy Committee for their significant contributions to this submission.

Read our full submission.

Read our previous submission (to the parliamentary Legal Affairs and Community Safety Committee).

Read the committee report.

Footnotes
¹ Explanatory Notes, Child Protection and Other Legislation Amendment Bill 2020, p1. parliament.qld.gov.au/Documents/TableOffice/TabledPapers/2020/5720T348.pdf.
² Ibid, p2.