Dr WOODRUFF (Franklin – Leader of the Greens) – Deputy Speaker, the Greens will be supporting this bill. At the outset I thank the minister’s office and department for the briefing provided to me and my staff, and the additional information provided since our briefing.
I start by recognising the bravery of victim/survivors and whistleblowers within Tasmanian institutions who, because of their actions and courage in speaking out, are the reason we are here today. They spoke about intolerable abuse that had occurred to them or had been actively covered up over decades in a number of Tasmanian institutions. Children were abused and their lives were changed forever. As the adults who spoke today, they were poignant in their detail of the ongoing lived trauma they have of those experiences.
It is incumbent on all of us to continue to make sure that the stories result in meaningful change so that children will never be subjected to that abuse in our government institutions again. I recognise that here we are, after the commission of inquiry’s findings: the report was released in September last year, 191 recommendations were made and it is clear that the government, through the reality of the time it takes to make change, has not been able to implement the recommendations that are required to keep children safe in institutions in full. When the commissioners wrapped their inquiry up, they were very clear that they were doing it earlier than they intended because of the clear and present risk to children and young people in Ashley Youth Detention Centre, and the more than 1,000 children in state care, in out-of-home care, across Tasmania.
Since that point, because of the logistics of making legislative change but also, in our view, the failure to put sufficient direct funding into a number of government agencies, particularly Children and Young People, Out-Of-Home Care and Children’s Services, children remain at risk today. That is a shame.
On the one hand, we continue to acknowledge and support the work the government is doing in the legislative reforms and implementing recommendations. However, we are also highly critical of the fact that opportunities have existed to step in and do more to keep children safe. Such opportunities have been presented to the government and writ large by community and people who work in agencies who have spoken out about funding opportunities being passed by that are needed to make sure there is the staff in place to keep children safe.
We call on the government to use the upcoming Budget to make sure they put the money into those services. It is not a place to have any government cuts, also known as efficiencies, in child safety, out-of-home care, our schools or Ashley Youth Detention Centre. These places cannot be subjected to cuts because the failure to properly resource staff there has meant there are not enough people to do the work to support children, keep them safe, put the processes in place to make sure children are safe, and do the governance and checking needed to keep children safe. We thank the government for what it is doing in these legislative reforms, but it is only a tiny part of the job. The most important part of the job is to put some significant financing directly into those areas so that staff can be employed, they can be recruited and, especially, retained in the hardest areas, in the areas where there aren’t the staff at the moment.
In saying that, I will reflect on a comment one of the commissioners, Robert Benjamin, made. Actually, it was all of the commissioners in their final report. They made the point that they had reviewed many previous Tasmanian reports and inquiries into out-of-home care, the health system, and Ashley Youth Detention Centre that identified problems that have not been addressed over many years: [TBC quote?]
We are conscious that some key recommendations of the national royal commission, such as child and youth safe standards and the reportable conduct scheme, are still in the early implementation stages five years after they were made.
This is a frustration the Greens have had over years now in trying to follow the progress of actions taken by the former attorney-general, Elise Archer, in particular, in responding to the national Royal Commission into Child Sex Abuse. As a result of that, we have not been able to do our job as parliamentarians to effectively scrutinise the progress the government has taken or not taken. At a number of Estimates I sat at and, prior to me, Cassy O’Connor, now MLC, we were asking questions about progress on the royal commission’s recommendations. We were assured it was all in train. Clearly, it was not. It took this commission of inquiry to really draw out how badly we have done in making change related to the national royal commission’s recommendations, making real progress in that area.
That is why we were clear from the beginning, with the community sector and, particularly, victim/survivors of child sexual abuse, that there has to be an independent body that undertakes the role of following through with checking not just the actions, but the quality of the actions being taken, the quality and extent of resourcing put into areas in response to the 191 recommendations. That will run over years. When there are years for things to run, it is very easy to lose track of exactly what is happening and exactly how effective it is. We strongly endorse not just the recommendation of the commissioners but the need for this legislation. As a consequence, we have looked very closely at it. The quality of this bill is critical for the commission of inquiry response to be effective.
I will start by saying that there are many elements of the bill the Greens are comfortable the government has right. It is fair to acknowledge that the scope of the monitor’s remit will be broader than was recommended by the commission of inquiry. The protections to ensure that the monitor will not be a person or a close relative of a person named in a recommendation or a finding of a relevant reform report are welcome provisions.
However, we are concerned that some recommendations made during the consultation process still do not appear to be addressed. We have questions about the response in the legislation of the concerns raised by the Integrity Commission and by one of the commissioners of the commission of inquiry.
In relation to section 16, exemptions to information, one thing we are concerned about is provisions that set out information the monitor is not entitled to access. In broad terms, there are exemptions around legally privileged information, personal medical information and information that may incriminate an individual. We do not have an objection to any of those exemptions in principle. However, what we are concerned about is our lack of confidence in the government ensuring that agencies do not abuse, mislead or disingenuously claim exemptions under these provisions.
In saying that, I am not reflecting on anyone in those agencies. It is about a culture, and it is a culture the commission of inquiry talked about extensively, whereby governments around the world try to minimise risk. That is the reason we have an independent monitor. We are not alone in those concerns. The Integrity Commission and one of the commissioners of the of the commission of inquiry also raised those concerns in their submissions. Robert Benjamin made the following comment:
“It does strike me that there could at times be conflict between the monitor and the agencies; for instance, the meaning of the terms and the extent of the terms in sections 14A and B.”
For the benefit of members and people who are listening or reading Hansard, the sections 14A and B referred to by Mr Benjamin in the draft bill, as it was, are now clauses 16(1)(a) and (b) in the final bill.
Continuing with Mr Benjamin’s comments, he said:
“Given the current practice, and perhaps requirement, in Tasmania that the Solicitor-General provide advice and guidance to executive and legislative government in whatever form it takes, this could leave the Solicitor-General in a position of significant conflict. At present there is a facility to ask either the Treasurer or the Attorney-General, I am not sure which minister, for permission to take legal advice outside the scope of the Solicitor-General’s office. Would it be worthwhile providing that the monitor could independently seek legal advice in circumstances that warrant concern from outside the Solicitor-General’s office?”
About that section 16(1)(a) and the exemption of legal privilege, the Integrity Commission says:
“It is not specific and does not provide for a pathway to determine a claim of privilege. This provision has the potential to severely limit the power of the implementation monitor.”
Of section 16(1)(b) the Integrity Commission said:
“While obtaining individual information, particularly of a private nature, is clearly not the focus of the implementation monitor, it should not be excluded due to the certainty that this would severely hamper and bureaucratise the information the implementation monitor is able to obtain.”
That comment is a serious concern to us, because the Integrity Commission is in a similar position to the Child Safety reform monitor. They would know the challenges that the monitor may face in practice obtaining information from departments and, as a result, their comments carry a lot of weight in regard to this bill.
Members of this House and the media will also be well aware of the dubious claims of cabinet-in-confidence, commercial-in-confidence and legal privilege variously claimed by ministers in parliament and committees, as well as in right-to-information processes. The right-to-information processes of this government have been called out just recently.
The commission also highlights in their ‘challenges we faced’ section, where arguably bad-faith legal arguments were mounted by the government to prevent the publication of information that may have been harmful to the government, that it was difficult and, in some cases, impossible for them to make some of the adverse comments or findings they would otherwise have made due to the state and lawyers arguing that ‘any adverse comment about an individual’s behaviour could constitute misconduct’.
With all of this context, section 16 is a significant concern to us. We note that the Family Violence Reform Implementation Monitor Act 2016 in Victoria does not provide the exemptions from the information that their monitor may seek that this current bill does, which raises the question for the Greens of whether or not section 16 is even necessary. Why is it there? Do we trust the monitor to be judicious in the use and disclosure of potentially inappropriate information more than heads of agency to not inappropriately use these exemptions to refuse to provide the monitor with information that the monitor should have? Because of the history I have just outlined, I suggest that victim/survivors would not trust that.
Sitting suspended from 1 p.m. from 2:30 p.m.
Resumed from above.
Dr WOODRUFF (Franklin – Leader of the Greens) – Our concern rests on whether we trust the monitor to be judicious in the use and disclosure of potentially inappropriate information more than we trust the heads of agencies to not inappropriately use the exemptions within the bill to refuse to provide the monitor with the information that the honest monitor should have and needs to have in order to do its work. We would like the government to make a case for section 16. To be clear, from our point of view, trusting us to do the right thing is not going to cut it.
The Integrity Commission recommended establishing a process in the bill to dispute claims of privilege, and the former commissioner put forward the idea of provisions ensuring that the monitor could independently seek their own legal advice in the event of a dispute.
None of those options have been pursued by the government. Minister, are you able to explain why those recommendations have not been adopted and, further, in a more general sense, by what mechanisms, if any, would the monitor be able to dispute a claim of privilege or other exemption that was made by an agency who refused to hand over information on that basis?
Is the government’s intention that the monitor’s legal advice should come from the Solicitor‑General? Do you accept that this could involve a conflict of interest, which was what was submitted by Robert Benjamin AM SC?
On a related matter, the only penalty in the act applies to failures by the monitor themselves for disclosing information in a manner other than that provided for in the act. There are no offences for a failure to provide information to the monitor, and the only sanction is the potential for a note in the monitor’s annual report.
By way of contrast, failure to comply with a request for documents from the Integrity Commission is punishable with a fine of up to 5000 penalty units, which is $905,000 in present‑day terms. The result is that, if an agency head wishes to prevent the release of damaging information, the only disincentive is the potential of a noting of non-compliance in an annual report, hardly what Tasmanians who have watched the commission of inquiry’s hearings and heard the evidence and read the recommendations would think is adequate.
If the information that an agency wished to prevent being released would be more damaging than the non-compliance note, there is no real disincentive at all. The Integrity Commission noted in their submission that there is no offence or enforcement provision beyond the public reporting ability, under which appears to be a lengthy and bureaucratic process.
They suggested that ‘there should be an offence and enforcement provisions. At a minimum, the implementation monitor should be enabled to report publicly at any time on a failure to respond.’
Not only have no offence or enforcement provisions been introduced, but the government has not adopted the bare minimum proposed by the Integrity Commission: the ability to not have to wait for an annual report to publicly report a failure to respond. All of this strongly suggests to us that the government has really failed to listen to or seriously consider the feedback on their draft. Minister, can you explain why you have not adopted any sort of offence or enforcement provisions in this bill?
On a final note, we are intending to bring amendments to this bill in the Legislative Council, and I want to explain why we are not thinking of doing that here. We did have a look at drafting some for the House, and I want to thank the minister’s office for giving us a copy of submissions, but we only got them on Tuesday. That was not enough time for us to fully consider and draft something to our satisfaction before debate occurred in this House. I want to strongly put on record that I am sick and tired of having to represent Tasmanians on such serious matters and to repeatedly have failures from multiple agencies to make submissions available online on the day that a bill is tabled.
That is not good enough. It is not good enough in the interests of democracy. It is not good enough for us as legislators. It is the policy position of the Department of Justice, for example, to automatically put submissions online when the bill is tabled. The bill was tabled more than a fortnight ago – Thursday, last sitting – and we should have had two weeks to peruse the submissions.
This is such an important matter. This is a critical matter for us to not have had the information on, and to have had to do the work myself while I am working on another big bill at the same time. It is not good enough. I want to hear from the Attorney‑General. I would like you to give us confidence, please, that this will not happen again, especially when you have new members who are wanting to do a proper job of considering the submissions that are made, as well as looking at a draft bill if there is one, and then coming up to date with the change clauses, which is the case here. We want to make sure we are talking about the right thing, and whether it has been taken up or not by the government in final drafting, we need to have the time to do that work.
Our final question is around the timing of this coming to the Council. Is it the government’s intention to negotiate an expedited passage of this bill through the Council? Our understanding is that there is not going to be sufficient time for this bill to pass through the Council before the winter break, and the commission of inquiry had a deadline of 1 July for this legislation and for the monitor to be in place. Waiting for another, at least, six weeks over the winter break surely seems like it is something that can be avoided. It is not good enough to put off such an important bill for a matter of organising.
I want to thank the Attorney‑General’s staff for their briefing and for their support with my office on this bill. It is always a pleasure to deal with them. I hope the minister heard all of the questions I asked and is able to give a response. Then we will not need to go into committee.
