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External Review Update

Thank you, Madam Speaker.

I am grateful for the opportunity to bring this motion before the Assembly today. Nearly two-and-a-half years ago, I moved a motion calling on the ACT Government to recognise the importance of ensuring that decisions in the realm of child protection ‘be subject to external review, both to ensure the quality of such decisions and to engender confidence in the system’. My 2017 motion was informed in part by the 2004 Vardon Report, which raises as one of its main issues the lack of ‘external scrutiny’ of child protection decisions in the ACT.

Whilst this report does not specify a single mechanism for external review, it does note that the Children’s Court magistrates and ‘most of the legal representatives with whom the Review spoke’ had expressed support for an administrative tribunal supplemented by a judicial review process. The report goes on to suggest that a Commissioner for Children and Young People could have the power to convene such a tribunal. The ACT Government’s response to the Vardon Report’s suggestion was to create the commissioner position but then make sure it lacked any power to provide the recommended external scrutiny.

As a consequence, by 2016 we had another report, the Glanfield Inquiry, once again raising concerns about the lack of external merits review of care and protection decisions in the ACT. Suggesting that the ACT was in some ways out of step with other states and territories on this issue, this inquiry recommended that ‘a review … be undertaken of what decisions made by CYPS should be subject to internal or external merits review’, and ‘the review should have regard to the position in other jurisdictions’.

This inquiry and its recommendation also informed my 2017 motion. At the time, Minister Stephen-Smith tabled extensive amendments to the motion, specifically removing my call for the government to recognise the importance of external review as well as a statement noting that the ACT is out of step with other jurisdictions on this matter. She did, however, inform the Assembly that the recommended review had already begun. We later learnt that the review panel had commenced meeting the previous December. That was almost three years ago, Madam Speaker, and three-and-a-half years after the government accepted this recommendation.

I bring this point up in light of the fact that when debating my motion back in 2017, I said, quote, ‘Let us not delay any longer’. Unfortunately, this process has dragged on and on. In April this year, I asked the minister, on notice, if the review had been finished yet. She replied that it hadn’t, though the public release of a long-promised discussion paper was imminent, and she acknowledged that, quote, ‘this timeline does represent a delay’.

Some significant things have happened in the months since then. The discussion paper was indeed released, and public consultation has been sought. I note with satisfaction that the ACT Human Rights Commissioners made a ‘whole of commission’ submission in response to this discussion paper. Exactly as I did in 2017, they have explicitly called on the ACT Government to recognise the necessity of external review. I quote from their submission:

  • One: ‘The Commission considers the provision of external merits review of child protection decisions … is necessary to uphold the rights of children and young people, and their families, and is essential for achieving full compliance with the ACT’s human rights obligations’.

  • Two: ‘Internal merits review on its own is not sufficient to meet the requirements of the [Human Rights] Act’.

  • And finally, three: ‘The Commission considers that the broad discretionary framework … to make decisions about a child or young person’s care, combined with the lack of appropriate mechanisms to challenge and remedy such decisions, is incompatible with the [Human Rights] Act’.

In other words, Madam Speaker, until we fix this situation, we are not human rights compliant, and we haven’t been since the act was adopted. I hope you can begin to understand now why I have continued to push this matter for more than two years.

I likewise note with satisfaction, Madam Speaker, that Dr Watchirs, the president of the Human Rights Commission, has recently supported the point I made in 2017 about the ACT being out of step with other states and territories – and which the minister felt the need to remove from my original motion. Speaking to local media on this topic just last week, Dr Watchirs said, and I quote, ‘We must step into line with other jurisdictions and provide for external review of child protection decisions’. Indeed, we must.

And in light of the fact that this process has already gone on too long and experienced too many delays for such an important matter, as well as the fact that the public consultation period closed nearly three months ago, it is time that we get an update. My motion today calls on Minister Stephen-Smith to provide that update to this Assembly before the last sitting day of the month. We need to know what has happened and what exactly still needs to happen, and we need to know when we can expect a final outcome.

This motion also raises the issue of who is being consulted as part of this review, Madam Speaker. As noted, the public have been invited to make submissions to the discussion paper released earlier this year. In addition, the minister stated on 16 May that she had ‘written to a wide range of stakeholders within the child protection and legal systems and to the Aboriginal and Torres Strait Islander community to invite their participation in face-to-face consultations’. I certainly endorse such face-to-face engagement with stakeholders, but there is one group of stakeholders not mentioned in the Minister Stephen-Smith’s list of invitees: children and young people themselves.

This motion therefore calls on the minister, as part of updating the Assembly, to inform us ‘how the voices of children and young people are being included in the consultation process’. This would seem like an obvious inclusion, Madam Speaker, but I would like a clear assurance that it is. Earlier this year, the CREATE Foundation, which is the nation’s peak body representing those in care and protection, released a comprehensive survey subtitled ‘Children and Young People’s Views after Five Years of National Standards’. This survey, which was endorsed by academic experts, raises concerns about how well kids are being listened to in this territory’s out-of-home care system.

For example, the ACT has by far the nation’s highest rate of children and young people in care who report being removed from a placement against their wishes. At the same time, we have the lowest rate of such young people who report being consulted regarding these removals. On a more specific measure, the ACT tied with the Northern Territory for the fewest young people who agree that they are listened to within the system broadly. We are second-last when it comes to the number of young people who report participating in formal meetings that involve them. And amongst young people who have been invited to attend such meetings, fewer kids in Canberra said they were actually listened to than anywhere else in the entire nation.

In fact, Madam Speaker, one of the clearest messages found in the CREATE Foundation’s survey is that children and young people in this territory simply don’t trust the Barr Government to listen to them or let them have a real voice in decisions that affect them. This finding stands in stark contrast to the promise in the government’s out-of-home care strategy, which is to, quote, ‘embed a culture of listening to the voices of children and young people’. Aware of their own data, the CREATE Foundation chose to emphasise this point in their submission to the ongoing review. I quote: ‘CREATE further advises that it is vital that if the working group must determine which decisions could benefit from external review, children and young people should be consulted as to their opinions on which issues are important to them’.

Perhaps those overseeing the review process have already developed plans to access the vital voices of children and young people and this consultation has happened or is happening. I certainly hope so! But in light of what we know about what kids in Canberra are saying about their experiences more generally, it seems wise to ask the government to remind the independent expert who is undertaking the consultation process that the voices of children and young people must be included.

In conclusion, Madam Speaker, I look forward to hearing the Minister’s update later this month. I fully understand that this will be an interim update and not a final report, but it is important for this Assembly to be informed regarding progress so far, what still needs to happen, and the current timeline for when this review will conclude. I commend this motion to the Assembly.

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