Criminal Law Consolidation (Foster Parents and Other Positions of Authority) Amendment Bill

Second Reading

The bill amends the Criminal Law Consolidation Act 1935 (CLCA) to address an issue that has been identified which may impact on the ability to prosecute foster-parents and residential care workers for sexual abuse of children in their care in certain circumstances.

The Children's Protection Law Reform (Transitional Arrangements and Related Amendments) Act 2017 (children's protection law reform act) passed parliament on 28 November 2017. It made necessary transitional and consequential amendments to a range of legislation as required to commence the Child Safety (Prohibited Persons) Act 2016 and the Children and Young People (Safety) Act 2017.

Amongst other things, the children's protection law reform act inserted a definition of 'approved carer' into section 5 of the Criminal Law Consolidation Act referencing the Children and Young People (Safety) Act and purported to replace the term 'foster parent' with 'approved carer' in sections 49, 50, 57 and 63B of the CLCA. These provisions include a list of who is considered to be in a 'position of authority' for the purpose of prosecuting certain sexual offences involving a child of or above the age of 17 years. These amendments were proclaimed to commence on 22 October 2018.

However, shortly prior to the introduction of the Children's Protection Law Reform Act into parliament, the Statutes Amendment (Attorney-General's Portfolio) (No 2) Act 2017 amended sections 49, 50, 57 and 63B of the CLCA, with the result that the internal numbering of those provisions was changed. Unfortunately, that change was not picked up before the Children's Protection Law Reform Act proceeded through the parliament. Consequently, the intended amendments to sections 49, 50, 57 and 63B of the CLCA were unable to take effect on 22 October 2018, so the sections continue to refer to a 'foster parent' instead of an 'approved carer', while the insertion of the definition of 'approved carer' did commence on 22 October 2018.

There is now a concern that a change in the terminology used in the context of the Children and Young People (Safety) Act to refer to 'approved carer' rather than 'foster carer' within South Australia could impact on the interpretation of the term 'foster parent' in the CLCA; that is, a court may apply an interpretation of the provisions such that a person who has been made an approved carer under the Children and Young People (Safety) Act since 22 October 2018 is not regarded as a foster-parent for the purposes of the CLCA.

This would mean that an approved carer would not be considered to be a person in a position of authority in relation to a child who has been sexually abused. The impact of being found to be in a position of authority in those provisions is to extend criminal liability to include situations where the child is 17 years of age and where criminal liability would otherwise arise only if the child was under 17 years of age. Accordingly, if this interpretation were applied, the ability to prosecute foster-parents for sexual abuse of children in their care aged 17 years would be impacted.

The risk of this occurring is considered to be extremely low. However, in the absence of a legislative definition, a court would ordinarily be expected to continue to interpret the definition of a foster care parent according to its ordinary meaning rather than by reference to the Children and Young People (Safety) Act. Prior to the proposed amendments, the term 'foster parent' was not defined in the CLCA whether by reference to relevant child protection legislation or otherwise. The section referring to 'foster parent' also refers to 'parent', 'step-parent' and 'guardian'. It is clearly directed toward a person acting in loco parentis of the child irrespective of the formality of the arrangements.

It is therefore expected that the type of care provided by an approved carer would be interpreted to be within the meaning of care provided by a foster carer in any event. However, to ensure that there is absolutely no ambiguity about whether that should be the case, the government has brought this bill to address that risk. Since identifying this issue, there has been further consideration of the amendments that were initially intended by parliament in the Children's Protection Law Reform Act.

The existing term 'foster parent' in the CLCA has a broader application than the proposed substituted term 'approved carer'. Given this, it is now considered appropriate to retain the term 'foster parent' in the CLCA instead of replacing it with the term 'approved carer'. However, to remove any doubt about whether an approved carer is intended to be regarded as being in a position of authority in respect of the relevant CLCA provisions, the bill is intended to clarify that the term 'foster parent' includes but is not limited to an 'approved carer'.

The bill also specifies that a person in whose temporary care a child is placed pursuant to section 77 of the Children and Young People (Safety) Act is included. It is the government's view that this will ensure that all approved and temporary carers are clearly captured as being in a 'position of authority' in the CLCA while ensuring that the broader application of the term 'foster parent' that previously applied continues to apply.

Out of an abundance of caution, these amendments have been drafted with retrospective operation so that they will be taken to have commenced on 22 October 2018, the date that the original amendments were intended to take effect. In the event that any relevant offending has occurred since this date, retrospective application of the bill will put beyond doubt that any such offending is intended to be captured by the relevant provisions.

In the course of preparing the bill to address this drafting issue, a further gap in the categories of people who are defined to be in a position of authority was identified. As noted above, the position of authority provisions effectively extend criminal liability in situations where the cut-off age for regarding a person as a child would have been 17 years old (being the age of consent in SA). That is, it extends criminal liability for people who are in a position of authority in relation to children if the child is between 17 and 18 years of age.

The categories setting out who is in a position of authority includes teachers, social workers and health workers providing services to the child, and those who provide religious, sporting, musical or other instruction to the child—amongst other categories. Obviously, it also includes a parent, step-parent, guardian or foster-parent. However, people who work in children's residential facilities are notcurrently specified to be in a position of authority in these provisions. Clearly, they should be. We are fixing that.

There are two types of children's residential facilities established under child protection legislation. These are:

facilities established under section 36 of the Family and Community Services Act 1972. These are established and operated by the Department for Child Protection; and

facilities licensed under section105 of the Children and Young People (Safety) Act. These are predominantly non-government departments.

Both these types of facilities are staffed predominantly by employees who are not social workers, such as youth workers and other ancillary staff. These employees provide rotational care and services for children and young people who reside in the facilities. These people are unlikely to fall within the definition of 'foster parent'.

Accordingly, I have determined that it is appropriate to separately provide for this category of person as being in a position of authority in each of sections 49, 50, 57 and 63B of the CLCA. A similar provision already exists in respect of people providing services in correctional institutions and youth training centres. This inclusion is therefore consistent with the existing approach to protecting vulnerable children in institutional environments and will ensure that those who might prey on our vulnerable children are able to be held to account.

I also advise the house, particularly as the bill is proposing retrospective application, that I do not know of any case currently pending that this would affect; nevertheless, this is being presented to the parliament out of an abundance of caution. Our children are very important and their protection is paramount. I seek leave to insert the explanation of clauses into Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Criminal Law Consolidation Act 1935

4—Amendment of section 5—Interpretation

This clause inserts a definition of 'foster parent' into section 5 of the principal Act to reflect changes to terminology made by the children's protection law reform exercise.

5—Amendment of section 49—Unlawful sexual intercourse

This clause amends section 49 of the principal Act to include the specified persons as people who are in a position of authority in respect of a child.

6—Amendment of section 50—Persistent sexual abuse of child

This clause amends section 50 of the principal Act to include the specified persons as people who are in a position of authority in respect of a child.

7—Amendment of section 57—Consent no defence in certain cases

This clause amends section 57 of the principal Act to include the specified persons as people who are in a position of authority in respect of a child.

8—Amendment of section 63B—Procuring child to commit indecent act etc

This clause amends section 63B of the principal Act to include the specified persons as people who are in a position of authority in respect of a child.

Debate adjourned on motion of Mr Gee.