Northern Territory Second Reading Speeches

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COMMUNITY WELFARE AMENDMENT BILL 2002

(This an uncorrected proof of the daily report. It is made available under the condition that it is recognised as such.)

Madam Speaker, I move that the bill be now read a second time.

The primary purpose of this bill is to amend the Community Welfare Act to replace the existing provisions relating to interstate transfer of child guardianship arrangements. A new part will enable the administrative and judicial transfer of Child Protection Orders and proceedings between the Territory and jurisdictions with similar legislation. The bill will also amend the act to allow the court to grant warrants for the apprehension of children subject to certain Child Protection Orders who have moved, or been moved interstate without the approval of the minister.

The bill will amend section 53 of the act to clarify that the minister must cause an authorised person to periodically visit a child in care, only when the child is resident in the Northern Territory. Finally, the bill replaces gender specific terms in the principal act with gender neutral terms, and converts penalties from dollar amounts to penalty units.

In October 1996, the Community Services Ministers Council agreed that a project should be undertaken to address the implementation of legislation and protocols throughout Australia and New Zealand so as to more easily transfer child protection orders and court proceedings interstate. An officials working group subsequently developed national model legislation on which this bill is based. The bill provides for a system whereby Child Protection Orders made in the Territory, or Home Orders, be transferred administratively by the minister, or judicially by the Family Matters Court.

The minister’s authority to transfer an order is conditional upon the consent of the child’s parents and, where relevant, any person who has access to the child under the Home Order. Before the minister can transfer the Home Order, the minister must be satisfied that the order to take effect in the other state is similar to the Home Order, and must have the written consent of the competent interstate officer to the transfer.

The bill provides appropriate procedural safeguards. Having made the decision to transfer the Home Order, the minister must notify in writing all parties of his or her decision. All parties have the right to apply to the Family Matters Court for a review of the minister’s decision and to appeal to the Supreme Court. The Supreme Court will have discretion to hear the appeal and make orders as it sees fit, or remit the case to the Family Matters Court for further consideration.
The minister may also apply to the Family Matters Court for an order to transfer the Home Order to another state, provided the conditions laid down a met. The court does not require the consent of all parties to order the transfer, but is bound to take into account the wishes of all parties. Again, all parties have a right to appeal to the Supreme Court.

On the registration in the relevant interstate court of a decision by the minister, or order of the Family Matters Court to transfer a home order from the Territory, the home order ceases to have effect. Conversely, on the registration of an interstate decision by the competent officer or court order in the Family Matters Court, the interstate order is deemed to be an order of the Family Matters Court for all purposes.

The bill provides for the revocation of prematurely registered orders. The bill also provides for the judicial transfer, on application by the minister, of child protection proceedings between the Territory and other jurisdictions with complementary legislation. The court may not hear the application unless the relevant interstate officer has consented in writing to the transfer. Before making an order transferring a child protection proceeding, the Family Matters Court must consider amongst other things whether the welfare and interests of the child will be promoted or adversely affected by the transfer, and the wishes of the child and each parent of the child.

On the registration in the relevant interstate court of an order of the Family Matters Court to transfer a home proceeding from the Territory, the home proceeding is discontinued. Conversely, on the registration of an interstate court order in the Family Matters Court, the interstate proceeding is deemed to be a proceeding commenced in the Family Matters Court. The bill provides for the revocation of prematurely registered proceedings. This system will, for the first time, enable the court to act in the best interests of a child who has been declared in one state or territory to be in need of care, but whose welfare would be best served by relocating to another state or territory.

In July 1997, the Community Services Ministers Council further agreed that all Australian states and territories should ensure that their child protection legislation provides for the issuing of interstate child protection warrants. The Community Welfare Act currently does not provide for interstate warrants; a deficit which the bill directly addresses. The bill stipulates that a child who is a subject of a child protection order, other than a child in respect of whom sole custody has been granted to a person other than the minister, may only leave the Territory with the minister’s written consent. Where a child is absent from the Territory without the minister’s consent, the minister may apply to the Family Matters Court for a warrant for the apprehension of the child, and the return of the child to the Territory. Such warrants will be enforceable interstate under the Commonwealth Service and Execution of Process Act 1992.

The bill also amends section 53 of the act, which states that the minister must cause an authorised person to visit a child in care of the minister at least once in every two months. Family and Children’s Services have found this requirement to be impractical and unnecessary in respect of a child who is out of the Territory for a period of longer than two months. Section 6 of the bill ensures that this requirement will only apply once a child is resident in the Territory. This amendment is not an abrogation of the ministers or the governments duty to a child in the care of the minister, as the interstate apprehension warrant provisions of the bill will enable children in the care of the minister who are outside the Territory without the minister’s consent to be returned to the Territory. The bill also provides the alternative of transferring the child protection order to the state where the child resides, if that is appropriate.

Finally, the bill replaces gender specific terms in the principle act with gender neutral terms, and converts dollar amounts to penalty units. The government believes the bill will facilitate the achievement of best possible outcomes for children in need of care. As I have outlined, it provides the mechanisms whereby a child protection order or proceeding can be smoothly transferred to another jurisdiction where it is in the child’s interest to do so. In doing so, it establishes sufficient procedural safeguards to protect all parties against arbitrary decision-making, and ensures that all affected parties have the opportunity to be heard.

I commend this bill to honourable members.

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