Ms O’CONNOR (Hobart) – Mr President, this is an extremely important piece of legislation to make sure that the Tasmanian government’s commitment to implement the 191 recommendations of the commission of inquiry is held true. The Greens recognise that this legislation is well drafted.
It is sincere in its intent to establish a truly independent implementation monitor. That said, we do have some questions, but we are standing here debating this bill because of a manifest failure over generations of the state to properly care for and keep safe children and young people for whom it had responsibility. The genesis of the commission of inquiry is what was revealed was happening, and had happened, and the damage that had been caused at the Launceston General Hospital, but also through our education system.
I cannot remember exactly what year it was, it could have been 2018 or 2019. Mr Rockliff, the now premier, was the minister for education and we came to him with some testimony from victim/survivors and whistleblowers who had been profoundly damaged and their trust utterly betrayed in the public education system, going back some decades. To his great credit, the then education minister agreed we needed to establish a robust independent process to investigate those harrowing stories and the evidence of history.
The wonderful Professor Tim McCormack (OK) and Professor Smallbone (OK) worked together. That was a foundational body of work that led to the commission of inquiry. We also know it was because of the courage of victim/survivors and whistleblowers that the truth – or as close to it as we have yet got – the truth about what had happened at the Launceston General Hospital was told.
I pay credit to the journalist, Camille Bianchi, who through her work and her podcast, gave voice to victim/survivors and whistleblowers. That podcast reverberated nationally. The podcast was not in the mainstream media; it was not even really picked up at first by the mainstream media. But, through this mechanism for storytelling and investigation, and the tenacity of Camille Bianchi, that foundational information – evidence of abuse, maladministration, malfeasance, and ethical corruption – came to the fore.
The pressure on then premier, Mr Peter Gutwein, to establish a commission of inquiry became intense and to his great credit, he agreed to establish a commission of inquiry, which, of course, had unanimous support across the parliament.
It was never going to be an easy journey. For victim/survivors and whistleblowers, a number of whom I know personally, the process of the commission of inquiry, of course, traumatised them anew.
I sat in on hearings in Launceston and Hobart, and I saw the effect that giving evidence had – particularly on victim/survivors, but also on whistleblowers. I also saw how, after so long of having their trust and faith broken, that being able – for those who could – to tell their truth to the commission of inquiry was also, in some cases, very empowering for survivors. For some, for the first time, they felt heard.
The government has accepted all 191 recommendations of the commission of inquiry. The job of the implementation monitor is to stay on task, monitor, evaluate, report, on not just the recommendations from the commission of inquiry, but also from the Department of Education’s investigation, the investigation into the Launceston General Hospital and the Royal Commission into Institutional Responses to Child Sexual Abuse.
I can flag that we have been discussing an amendment that would enable the implementation monitor to examine reforms that came about as a result of evidence given to the commission of inquiry in this instance. For example, some of those reforms that were instituted as a result of what the commission of inquiry heard were the crime of failing to protect a child, compulsory training on mandatory reporting, and the safeguarding officer in schools program.
The Greens want to be sure that there is no restraint on the implementation monitor to examine any reform initiated by government, and in some cases approved by parliament, that relates to keeping children and young people safe. We can have that discussion when we go into this.
Ms Forrest – Are you saying you are moving one an amendment to that?
Ms O’CONNOR – I think it is being circulated.
Ms Webb – It has been circulated.
Ms Rattray – Electronically only.
Mrs Hiscutt – Through you, Mr President – I would like to ask the member for Hobart – Would you like it circulated now, in hard copy?
Ms O’CONNOR – Yes, please; but I want to have a discussion because I know there is some concern on the part of government about the amendment that we are proposing. I want to have that discussion during the committee phase. Can we please circulate the amendment in hard copy form and, and depending on what we hear and how the discussion evolves, that will dictate the response.
We are here because of recommendation 22 of the commission of inquiry, which strongly recommends and makes an unarguable case for an implementation monitor to monitor and report on recommendations of the multiple inquiries that are referenced in this bill.
I note in the commission of inquiry, Volume 8, some observations about the track record of government in delivering on reform, and also being open and transparent with the Tasmanian people. The commission says:
We are mindful the Tasmanian Government has held multiple inquiries and reviews on matters relevant to institutional child sexual abuse. It also has a history of accepting and then are not implementing recommendations in line with the intent of the inquiries or reviews, and failing to implement recommendations in a timely way. [TBC]
It is reasonably damning; politely written as it is.
And there is a history here of false promises and inaction, and in some cases, political gaslighting to victim/survivors and whistleblowers.
The commission goes on to say:
For example, in Volumes 4, 5 and 6 of our report, we discuss our problems identified in previous reviews and inquiries into out of home care, the health system, and Ashley Youth Detention Centre have not been addressed over many years. We are also conscious that key recommendations of the national royal commission have not been implemented and it has been more than five years since those recommendations were made. [TBC]
And now, six years.
Although the Tasmanian government has made progress on reforms by introducing the Child and Youth Safe Organisations Bill 2022, which was passed by the Tasmanian parliament and commenced as the Child and Youth Safe Organisations Act 2023 in July of last year, the Child and Youth Safe Standards and Reportable Conduct Scheme are still in the implementation stages.
I have not been in parliament for a little while, but as I recall passing the bill on the Reportable Conduct Scheme last year.
I also recall a former secretary of an agency, giving preliminary advice to the commission of inquiry. The former secretary was asked about the Child and Youth Safe Standards and the Reportable Conduct Scheme – which were recommended by the royal commission. When asked how long it would take to deliver on those recommendations at the time, in 2022, the commission of inquiry was told it would take another four years.
I remember being absolutely stunned as I listened to that testimony. I am not going to name the departmental secretary who made that statement. However, I was pleased that, as a result of the alarm bells that went off when that statement was made, the progress on the Reportable Conduct Scheme and Child and Youth Safe Standards was accelerated.
This legislation gives the implementation monitor some significant powers to investigate; compel the production of documents and information; to have some capacity to have what I guess it is a parliamentary version of ‘naming and shaming’;an agency that does not meet its absolute lawful obligation under this act, to comply through the mechanism of reporting to parliament. The implementation monitor has the capacity to search places.
Usually in this legislation, it is required the implementation monitor warns whatever agency or entity that person seeks to enter and investigate. There is also a mechanism in this legislation if the implementation monitor thinks it would defeat the purpose of the site visit or the search not to give notice. That is a good thing too.
There is a question mark which is largely resolved to the Greens about whether the implementation monitor is truly independent. I would like to thank the officers from the departments and the minister’s office who gave members of Council a briefing today and for the really thorough explanations and answers to our questions. In terms of a broader question of independence, while it is made explicit in this legislation that the implementation monitor is not subject to the direction of a minister or anyone else, we have a structure in this legislation which means all the implementation monitor’s staff will be state servants or come out of the state service.
In Clause 9 it says
The Implementation Monitor may arrange with the Secretary of the department for one or more of the following to be made available to the Implementation Monitor to assist the Implementation Monitor in the performance of the functions, and the exercise of the powers, of the office:
(a.) The services of one or more State Service offices, State Service employees or other persons employed or engaged by that department;
(b.) facilities and goods of that department or such other facilities and goods as may be reasonably required.
In in the briefing this morning, we were reassured the implementation monitor would be able to advertise and employ people. Well, the implementation monitor would need permission from the secretary of the department to be able to advertise and employ, certainly under this clause. If the leader of government business perhaps could provide that extra reassurance outside the briefing we had this morning about how you can be sure this office is independent when it is in all likelihood to be populated by state servants. These would be probably largely out of justice who would then be in a potentially invidious position where they are working for an oversight entity that is examining their own previous colleagues in an agency.
It is an issue because recommendation 22 of the commission of inquiry is really clear about the need to fund the implementation monitor, preferably not through a line agency; (OK)
3 The Tasmanian Government should protect the independence of the Implementation Monitor by
- c) separately and directly funding the Implementation Monitor, rather than through a line agency (tbc)
Yes, the implementation monitor is funded by an appropriation from the public account, but that is just one position and one person, and it is very clear that –
Ms Forrest – That is a reserve by law amount.
Ms O’CONNOR – That is right, but also the rest of the office of the implementation monitor will be funded through the Department of Justice. It will be, as we were told this morning, an output in the budget chapters under the Department of Justice. I would like some clarity on that.
Under section 8, where it says the monitor is, ‘not subject to the general direction or control of any minister’ and in particular has, ‘complete discretion in respect of the contents of each report,’ but in contrast, for example, the Auditor‑General is, ‘authorised and required to act independently in relation to the performance of their functions,’ and ‘has complete discretion in the performance of their functions’. There is a different approach. I understand that the Auditor‑General has a very different remit –
Ms Forrest – He also has some limitations in his act as well, I can say.
Ms O’CONNOR – The limitations of his act –
Ms Forrest – There are some limitations some limitations on the Auditor‑General, yes.
Ms O’CONNOR – All good legislation should have some limitations in it.
Ms Forrest – It is not open slather.
Ms O’CONNOR – If the Leader of Government Business could get some clarity on that, that would be really great. Section 12 is where we are considering whether it needs amending. This is the section that talks about the functions and powers of the implementation monitor, and that is to monitor from 12a to A, the commission of inquiry and the independent inquiry into the education department’s responses. There is a typo in this clause. I do not know if anyone else has seen it –
Ms Forrest – Member for Hobart, it is your job.
Ms O’CONNOR – Clause 12, 1A(2), there is ‘reponses’ instead of ‘responses’, and to be fair I have read this legislation numerous times and have only just picked that up then. It is a pretty easy one for your eye to skate over.
Member – You are channelling the former member.
Ms Forrest – I hope he is watching, the former member, he would be very impressed.
Member – Very proud of you.
Ms O’CONNOR – I want to lift my game a bit so he does not continue to be disappointed that I am here.
The implementation monitor has oversight of those inquiries and recommendations that were made in clause 12. There is a question mark over whether that limits the scope unnecessarily of the implementation monitor. I believe that this legislation has been prepared in good faith, there has been a lot of hard work on it, it seeks to hold true to recommendation 22 of the commission of the inquiry, and I know that the commission of inquiry did not recommend that the implementation monitor be given any broader remit, but where there has been reform in the child and youth safety system or the youth justice system that falls outside an inquiry and its recommendations, there is an argument that the implementation monitor should not be fettered in examining those reforms as part of that broad oversight of a system that we absolutely have to improve. Hopefully that amendment has been circulated now.
I note that new matters can be referred to the implementation monitor by the minister or a resolution approved by both Houses of parliament, and this goes back to my previous concern about the implementation monitor not being able to undertake their ‘own motion’ examination of an area of child safety reform. Outside the scope within clause 12 it will be up to the minister or the parliament to put other areas of public policy in child safety and youth justice and the operation of the State Service as it relates to that before the implementation monitor.
In the briefing today, I made the observation that there are no explicit powers of referral for the implementation monitor to refer on to the Commissioner of Police or the Director of Public Prosecutions, and, interestingly, section 9 of the Racing Act says that the Tasmanian Racing Integrity Commissioner, if they think it is appropriate, can refer matters to a public authority, the Commissioner of Police, the Director of Public Prosecutions or any other person, the Commissioner considers appropriate. So, we have not created a clear path for the implementation monitor to be able to refer matters outside their mandatory reporting obligations.
Section 16 has certainly raised some issues with the Greens but more critically potentially with the Integrity Commission. This is the legal privilege clause. This is where there is certain information that is unable to be requested by the implementation monitor and given what we know and what was written by the commission of inquiry and its observations of some of the previous conduct of the Tasmanian government, there is a legitimate question here about this provision in 16 (1) (a) where the monitor does not have the authority to require a relevant agency to give to the monitor information or a document that is subject to a lawful claim or right of privilege.
It reminded me that in question time yesterday and today, but particularly yesterday, I asked the Minister for Parks and the Environment why the government was not releasing its legal advice on the Tasmanian State Coastal Policy. He talked about ‘privilege’ and we are just supposed to take that on trust. If the Leader of Government Business could speak to Council about the concerns that have been raised by the Integrity Commission regarding the exemption for legal privilege, which says specific to this clause:
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. (TBC)
And then on the following on (b), again, the potential for some decisions to be made by agency secretaries not to release information on the basis of these clauses. How will the implementation monitor challenge those decisions? That requires some explanation. On 16 (1) (b), the 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.
Consider the history here, particularly some of the evidence that came before the commission of inquiry, where we saw senior state servants and heads of agency behave in a manner that did not meet public ethical standards. I do not need to name these senior state servants who are administering hospitals or government agencies, but in the evidence to the commission of inquiry, particularly in those early days, it became clear that some state servants were covering their backsides.
I have worked as a minister of the Crown with some of the finest, most talented state servants anywhere in the world, and this place would be nothing without the state service. But there is a bit of a reflex within some parts of the state service to cover yourself, to avoid problems. It is a default reflex. I go back to the racing bill where there is an entity established which is basically stacked with state servants.
There is a trust issue here given the history around clause 16 and it is not resolved in the bill. There is no apparent appeal mechanism for dealing with an agency or secretary that said simply, no, that information is subject to legal privilege, it could compromise someone’s right to a fair trial.
I will note one of the bodies of work that really does need to be done and has been made clear through the commission of inquiry is much stronger protections under the Public Interest Disclosures Act for whistleblowers, who in this state time and time again step up, find that well of courage within them, tell their truth, drive change through that truth‑telling and end up being punished, marginalised, shafted.
All of the pieces of keeping children safe need to work together. One of those pieces is making sure whistleblowers – people who know something wrong is happening within the organisation that they work – are better protected. We saw it with Ashley Youth Detention Centre. We have seen it with the Launceston General Hospital. We need to do this, but we also need to make sure we are protecting the people who have been the truth‑tellers, who drove change and in fact, along with survivors, brought us to this place where we are debating this really important piece of legislation.
Doctor Rosalie Woodruff is the lead on the commission of inquiry and took this bill through the House of Assembly for the Greens, very admirably. I am taking her lead on this bill but as someone who has an abiding – I just love kids – love of children and young people and a desire to make sure Tasmania is the safest place in Australia to raise a child.
As someone who has watched this journey, I am glad I am standing here talking on this bill. It is a good piece of legislation. It is not perfect. There are still questions outstanding which I trust the Leader of Government Business will address so the answers to those questions are on Hansard.
Again, this is sincere. If you just want to look at this politically, the government was on a hiding to nothing when it agreed to establish the commission of inquiry well the then premier, Peter Gutwein, agreed to establish the commission of inquiry. They have not covered themselves in glory throughout – calling an early election so that work on the first tranche of reforms stalled was a shoddy effort. However, I believe that across this parliament, there is a genuine collective commitment to work together on this and get it right, so that Tasmania is the safest place in the country for children and young people.
