Children and Young Persons (Family is Culture) Bill 2022
(Second Reading Debate, 8 November 2022, Legislative Assembly, NSW Parliament)
The Children and Young Persons (Care and Protection) Amendment (Family is Culture) Bill 2022 is an important step in removing biases in our child protection system and providing support to families to stop the appalling number of First Nations children and young people removed from their families, their communities and their culture.
We look back on the time not too long ago when governments sanctioned the forced removal of Aboriginal and Torres Strait Islander children, placing them in institutional care, as very dark days. Those children were mistreated and grew up without the love and support of parents, kin and Elders, or other important connections to country.
Unfortunately, those days are not behind us. We have a modern crisis in First Nations child removal that is creating a new Stolen Generation. Close to 7,000 First Nations children and young people are in care in this State. Aboriginal children are 16 times more likely to be taken from their families than non-Indigenous children. Some of the people losing children were part of the Stolen Generation and have to endure that trauma again with lifelong impacts on their children. We cannot stand by and continue to let their families be torn apart and create a new generation of First Nations children raised in State care without family love or cultural support. No‑one benefits, especially the children going into care. There is growing evidence that out-of-home care is linked to poorer outcomes for children. Children placed in care are more likely to end up in the justice system, disrupting their education. The flow‑on effects include a greater likelihood of unemployment, poverty, substance abuse and contact with the justice system as adults. Child removal is a major factor in the cycle of disadvantage that disproportionately affects First Nations people. We will not close the gap unless we slow the rate of removal of First Nations children from family and country.
The 2019 Family is Culture review report delivered by First Nations academic Professor Megan Davis and commissioned by the Government, provided a blueprint for turning this situation around and protecting First Nations children. The report included a comprehensive review of the case files of every Aboriginal and Torres Strait Islander child and young person in out-of-home care between 1 July 2015 and 31 June 2016—some 1,144 children and young people. The team also consulted with Aboriginal communities and families, government agencies, lawyers, non‑government organisations, the out-of-home sector and child protection case workers. The report found significant harm to children in out-of-home care and brought down 126 recommendations for systemic change.
I welcome the Government's decision to bring the first stage of reform forward as a result of the report after it first said we may need to wait until 2024. There are some excellent provisions in the bill, including to ensure active efforts are taken to prevent children going into care, to restore removed children to family and to place removed children with family, kin and the community. Care plans for Aboriginal and Torres Strait Islander children and young people will include cultural plans developed in consultation with those affected and Aboriginal organisations. Parents with complex needs will be given more time to address those needs before their child is removed and the courts will no longer presume that a child automatically needs care and protection if their parent had a previous child removed. Those are important provisions to ensure family members' voices can be heard in court matters and to make more First Nations persons authorised caregivers.
I will not go through all the changes, as they have broad support, but I am concerned that they may not achieve the structural change needed to overturn the deep-seated flaws that have accelerated the removal of Aboriginal and Torres Strait Islander children. Peak bodies the Aboriginal Legal Service and AbSec identified other recommendations from the Family is Culture report that should be implemented immediately, including the key need for judicial officers to consider the known risks of harm to an Aboriginal child of being removed from their parents or carer before issuing an order. There is an assumption that children in families that are struggling will be better off if they are removed, but the evidence shows that removal exposes them to danger and trauma, including being subject to abuse and severing their connection to culture. That truth should be considered by the Children's Court before a child is removed to ensure a more balanced decision.
A statutory review will start 12 months after the bill comes into effect. I am hopeful that that early review will provide an appropriate opportunity to build on the work that has been done with further reforms and in line with the Family is Culture report. I foreshadow that I will move amendments at a later stage to improve oversight of active efforts in the bill as they are key to its success. I acknowledge the work of Senator David Shoebridge who, when he was a member of the other place, introduced a comprehensive bill to legislate the Family is Culture recommendations. Without that bill, we may not have had this bill. I acknowledge my Independent colleague Mr Greg Piper for his work in this field and for introducing the bill of David Shoebridge to this House. In conclusion, the bill is an important step forward in closing the gap and I look forward to further legislation. There is other work to do on incarceration rates, protecting First Nations cultural heritage, providing an Indigenous Voice to Parliament and achieving a treaty. I commend the bill to the House.
(Consideration in Detail, 8 November 2022, Legislative Assembly, NSW Parliament)
By leave: I move amendments Nos 1 and 2 on sheet c2022‑188D in globo:
No. 1 Commencement
Page 2, line 8. Insert ", [24A]" after "".
No. 2 Minister to report on active efforts
Page 10, Schedule 1. Insert after line 38—
[24A] Section 266
Insert after section 265—
266 Minister to give annual report about active efforts
(1) The Minister must prepare an annual report relating to the implementation and impact of the principle of active efforts for each of the 5 financial years following the commencement of this section.
(2) Each report must include details about the following matters for the financial year to which the report relates—
(a) the actions taken by the Secretary to implement the principle of active efforts,
(b) funding that was directly invested in active efforts measures, including to—
(i) the Department, and
(ii) non-government organisations and Aboriginal community controlled organisations, and
(c) steps taken to improve Aboriginal and Torres Strait Islander self-determination and participation in decision-making, including steps taken to implement the Aboriginal and Torres Strait Islander Children and Young Persons Principle.
(3) The Minister must report to Parliament—
(a)for the first report—within 6 months after end of the first financial year immediately following the commencement of this section, and
(b)for each subsequent report—within 6 months after the end of each subsequent financial year.
The inclusion of mandatory active efforts is the cornerstone feature aimed at reducing child removal, restoring removed children safely to parents and placing children that cannot be safely retained or restored with family, kin or community. Active efforts will see the department work to achieve those outcomes for the benefit of keeping families together and protecting First Nations children's connection to culture and country. If done right, active efforts could stop Aboriginal and Torres Strait Islander children ending up in out-of-home care. But active efforts must be exercised using all tools possible, with sensitivity and in partnership with families. They cannot become a tick-a-box exercise on the pathway to court for a care and protection order.
There is some nervousness amongst stakeholders about how active efforts will be exercised, as was expressed by the member for Newtown. While I believe the Government is committed to ensuring that active efforts become a genuine exercise, I believe the system would benefit from additional accountability. My amendments would require the Minister to provide Parliament with an annual report on how the department is implementing active efforts, including the Aboriginal and Torres Strait Islander Children and Young Persons Principle and steps towards self-determination and participation. The report will also include funding and investment in active efforts measures. The amendment will ensure the Parliament, stakeholders and the wider community will have the appropriate oversight into how active efforts are being exercised. I thank the Minister, her staff and the departmental staff for working with me on that important accountability measure. I commend the amendments.
Mrs HELEN DALTON (Murray) (18:53): I support the amendments of the member for Sydney, but I also make a small contribution to the debate. I thank the Government for finally introducing the bill. Thanks must also go to Mr David Shoebridge, who forced the Government to finally introduce the legislation. He pushed the Government to provide some of the wraparound services we so desperately need in the electorate of Murray and across rural New South Wales. It is a small step in addressing a huge problem.
When asking my First Nations friends about the bill, they pleaded with me to urge the Government to provide an alcohol and drug addiction rehabilitation centre for everyone on country. We cannot start to address that problem in Murray until we provide that essential service, particularly around Griffith. We want services on country in our country, not triaged to a regional city far away from supportive networks. Country is healing, and culture and rehabilitation are part of the solution.
"Collective focus" is a lovely phrase, but in reality it offers nothing more than lip service. We must change direction and take Indigenous Australia with us to address the reality of generational government neglect. We must safeguard Aboriginal children and their families. For far too long, government has turned a blind eye to delivering services to the most vulnerable. This legislation, while far from perfect, is a starting point. It must be noted that collective focus is probably the solution. It has got to be done. I acknowledge all those who have contributed to the bill. Let us begin to make the quantum change today.