Children and Young Persons (Care and Protection) Amendment (Family Is Culture Review) Bill 2021

31st March 2022

Mr GREG PIPER (Lake Macquarie) (10:36): I move:

That this bill be now read a second time.

I advise the House that the following members will co-sponsor the bill in the Legislative Assembly: Mr Roy Butler, the member for Barwon; Mr Alex Greenwich, the member for Sydney; Dr Joe McGirr, the member for Wagga Wagga; Mr Jamie Parker, the member for Balmain; and Ms Tamara Smith, the member for Ballina. I seek leave to table two letters advising of the co-sponsors of the bill.

Leave granted.

Documents tabled.

Mr GREG PIPER: I am pleased to introduce into the Legislative Assembly the Children and Young Persons (Care and Protection) Amendment (Family Is Culture Review) Bill 2021, containing a set of landmark reforms to child protection laws in New South Wales. The proposals in the bill are all based on the recommendations of theFamily is Culture report, authored by leading First Nations academic Professor Megan Davis. It emanates from a bill introduced by Mr David Shoebridge that passed through the Legislative Council and gained support across the House but not from Government members. The report that was a trigger for the bill was commissioned by the Minister for Health as the Minister responsible at that time, and it was delivered to the Government in October 2019. The report made 126 specific recommendations to reform the child protection system for First Nations children and more than 1,000 recommendations relating to individual cases. It described catastrophic rates of removal of First Nations children by the child protection system, poor outcomes and a failure to recognise the harm of removing a child from their family and from their culture.

First Nations children are still being taken from their families and separated from their culture and country. The Stolen Generations did not end in the 1950s, 1960s or even the 1970s. They are real and they are still happening today. It is heartbreaking, but Aboriginal children today are 11 times more likely to be taken from their families than non-Aboriginal children. That is an extraordinary figure. They are not twice as likely or three times as likely but 11 times as likely to be taken from their families. I feel shame and alarm when I read those figures, and I feel a great urgency to do something about it. I would feel even more shame and alarm if every member in this Chamber did not share the same concern. The current system is clearly not working.

First Nations children removed from their families and placed in out-of-home care are more than 15 times as likely to be in youth justice supervision than those who are not. We know that dramatically increases the likelihood of that child growing up and ending up in adult incarceration. As then Prime Minister Kevin Rudd said when he delivered the apology on 13 February 2008, he committed us to "a future where this Parliament resolves that the injustices of the past must never, never happen again". We had a national apology but little has changed. It is an ongoing theme for our First Nations people, and it remains a great shame to our country. Contemporary data published inThe Sydney Morning Herald today references Closing the Gap data and the historic 2020 national agreement between the Federal and State governments. It says:

The agreement also pledged to reduce the rate of children being placed in out-of-home care by 45 per cent in the next decade, but that figure has gone up from 54.2 per 100,000 kids in 2019 to 57.6 in 2021.

How can that be the case? How can we have allowed that to occur? However uncomfortable it might make some members feel, it is up to us to step up and do what needs to be done. The Government's own report has found alarming failings, yet we have had to drag the Government to the table to change the law. The risk of condemning another generation of First Nations children to trauma and suffering is increasing. We know the harm this causes, but still nothing has been done. Since theFamily is Culture Review Report was delivered in 2019, the Government has continued to kick the reforms down the road and further into the future. When the bill was first read in the other place by Mr David Shoebridge, the Government said the earliest it could possibly start looking to make the required changes would be 2024. That is another two years down the track and another two years too late for a problem we have known has been urgent for decades. We know that change is essential.

I have had discussions with the Minister and her staff about this, but the most compelling thing to me is that this report, which was requested in 2016 and handed down in 2019, is not going to be fully acted on until 2024. I note that the Leader of the House is in the Chamber, and I thank him for being here. He was previously the Minister in this space. I acknowledge that we have had a succession of Ministers through this space, and that is not easy. We have had the Hon. Brad Hazzard, Mr Gareth Ward, the Hon. Alister Henskens and now the Hon. Natasha Maclaren-Jones, so I appreciate that there has been disruption in that process, but that is not a concern of these children and their families. The Government has to be able to manage that. The Family is Culture report is a government report. It was commissioned by the Government, and the report's author was given unique access to the files and systems of the State protection system.

I acknowledge that the Minister responsible for this matter, the Hon. Natasha Maclaren-Jones, is in the Chamber. I thank her for taking an interest and for being here for this second reading speech. This is a deeply complex area of law and policy, and the expert knowledge and evidence gathered as part of this process led to the final report, which had tangible and achievable recommendations to do something important and end the ongoing stolen generations. Megan Davis's foreword reflects the love at the heart of why this change is so important and so urgent:

This Review and the important recommendations contained herein are the result of the courageous advocacy of the Aboriginal men, women, aunties and uncles, grandmothers and grandfathers whose children, relatives and kin have been removed from their families in NSW. This Review is a manifestation of the deep love they hold for the many jarjums they have fought for and continue to fight for, who are at the centre of this review.

The bill was developed following the extensive consultation undertaken for the Megan Davis report, which in turn considered the deep knowledge and practical expertise of the sector. There was then an extensive consultation process on the bill with families that have engaged with the child protection system over generations, as well as the broader sector and relevant peak bodies, including AbSec, the Association of Children's Welfare Agencies [ACWA] and the Aboriginal Legal Service. The current bill is a result of this consultation and work within the Parliament to address clarifications and questions asked by other members. These laws have the broad and deep support of First Nations families and the sector. They are asking for these changes to be made.

The bill seeks to amend the Children and Young Persons (Care and Protection) Act 1998 to specify that, when decisions are being made about Aboriginal or Torres Strait Islander children and young people, the Aboriginal and Torres Strait Islander Child and Young Person Placement Principles must be applied. These principles recognise the importance of young people being brought up in their own family; decision-making with community representatives and participation of the child and their family; and placement principles and the importance of connection. The new principle of Aboriginal and Torres Strait Islander family support means steps need to be taken to provide family support services and other programs that help families keep kids with them and on country. This requires the Minister to report on this and table in Parliament a plan that sets out the steps taken to provide family support services, as well as measures taken to promote self-determination and meaningful participation.

The bill also empowers Aboriginal community-controlled organisations, or ACCOs. The Coalition has previously promised to transition all Aboriginal children in out-of-home care to Aboriginal community-controlled organisations by 2022. That is a key recommendation of the Family is Culture report, but the Government is failing to deliver on its own promise. Right now, despite the Government's hollow promise and a vague indication that it might get to new legislation two years from now, more than three quarters of Aboriginal children in out-of-home care are in State care or that of non-Aboriginal organisations. I will acknowledge further the Government's intentions later in this speech.

The bill specifies that the Children's Court must not make a final care order unless it expressly finds that the permanency plan has been approved by a recognised Aboriginal community-controlled organisation where such an organisation is available. This gives substance to the Government's promise and is a matter where modest refinements will be considered in committee to deal with situations where there is no ACCO reasonably available. New section 93AA requires that the Children's Court consider the Aboriginal child placement principles and the principle of self-determination in all of its reasoning when making decisions regarding First Nations children. New section 83A extends the restoration time for an Aboriginal or Torres Strait Islander child from a maximum of 24 months to a maximum of 48 months. This recognises the distinct structural and economic disadvantages faced by many First Nations families. This aspect of the bill gives families the most important thing that we can deliver right now: more support and more time to stay together.

Out-of-home-care providers are too often failing to maintain contact with families. That means mothers, grandmothers and family are not able to maintain relationships through regular visits and contact. That is why the bill explicitly requires permanency plans to say how they will support continuing contact with the child's Aboriginal or Torres Strait Islander family, community and culture if a child is removed. Children have a right to know their families and to understand their identity and their culture, and that must be prioritised, especially if they are put into care. Members who have read the Uluru Statement from the Heart might remember that it mentions how child removal rates tell plainly the structural nature of our problem. It states:

This is the torment of our powerlessness.

It is time for the New South Wales Parliament to step in and do what needs to be done. We need to stop taking these children. We need to support families to stay together. We need to make sure that we end the stolen generations.

I absolutely accept that this type of reform is extremely difficult to navigate, but it is critical to address the very important issues identified in the Family is Culture review. No element of the bill has been drawn from thin air. All of it has been drawn from the Family is Culture review—that is, the review this very Government requested. I have had meaningful discussions with the Government and the Minister for Family and Communities, the Hon. Natasha Maclaren-Jones. No-one, particularly not me, comes from a place of bad faith in this area. There is no bad faith from the people in the Government whom I have spoken to about this, but it is imperative that we address this issue. This is not an issue that we can easily continue to defer, because every deferral—whether it is a day, a week, a month or a year—means that more people are in this situation.

The Minister is in the advisers' area, and I know that she has real concerns about the bill. I say to her and the Government that this is a genuine, heartfelt attempt to address a pressing imperative. I note the commitment the Minister has made to me and others that the Government will bring forward a bill that addresses the heart of this issue and, indeed, has a broader remit in what it delivers. I understand that the draft of that bill may well be before the House by the end of July. The Minister intends for that bill to be brought to Parliament and proceed through all stages to assent by the end of 2022. I thank the Minister and the Government for that, but would it be impertinent of me to mention that the original intention was for many of these matters not to be addressed until 2024? I will be very pleased that if the bill before the House does nothing else, it brings this imperative to the Chamber and before the Government.

I strongly support that bill's intentions across the board. But if it fails, then the bill before the House must be supported. I believe this bill warrants approval, agreement and passage through this House, and assent in its own right. How that will work out remains to be seen. I certainly hope we can do it. To be totally honest, discussions are ongoing. We are having those discussions. I do not think there is one Aboriginal person—one person represented by the bill—in this House to represent themselves, their families and their culture. While it is a privilege for me to be able to do so, it is also something of a burden. I have many friends in the Aboriginal community, but I do not think I can do justice to their cause.

The bill is a significant step forward in improving outcomes for First Nations children in this State. If we are ever going to start turning back the shameful tide of the number of First Nations children currently in out-of-home care in New South Wales, we need to act now, not two years from now when there will be new members sitting on the Government benches who may well have other priorities. Every year that these legislative reforms are delayed, more First Nations children and young people are likely to be removed from their families and perhaps experience the long-term and intergenerational harms that the Family is Culture review identified and urged us to fix. I encourage members to read the Family is Culture review if they have not done so already. I assure members it is not an easy read, not just because of its voluminous nature but because of the very material embodied in it. It contains facts, statistics and empirical data, but it is all about people. It is about children, families and culture.

I am not one of the experts who formulated the review, but I am prepared to listen to them. I have read the Family is Culture review recommendations and come to the same conclusion that I believe any other fair-minded person would arrive at: We need to listen to the Aboriginal Legal Service, AbSec, the Women's Legal Service NSW and the First Nations people in our own communities. I reflect once again on a number of matters that have concerned people and that will be subject to amendments when we get to that stage. Some genuine concerns have been raised but I think there were bad-faith statements about the intention of the bill, including comments that implied the bill was not about the interests of children. No-one involved in this space would not want children's welfare—not just their immediate welfare, but also their lifelong welfare—to be the primary focus of the bill before Parliament.

That is what the bill is about: making sure we focus on the needs of Aboriginal and Torres Strait Islander children who are still being impacted by a system that has not done justice to those needs. I hope that this House and the Government can find a way to listen to those needs and respond in a timely manner. This cannot wait. I thank everybody who has been involved in bringing the bill forward. I thank Mr David Shoebridge, his staff in The Greens office and his Greens NSW colleagues, all those who co-sponsored the bill and everybody who has lent their support to it. I know there is a lot of support out there that has not been spoken about, but in many ways that is because this is such a complex matter. It is very hard to understand. The Minister and the former Minister understand the issues, and we need to work together to find a solution. With those remarks, I wholeheartedly commend the bill to the House.

Debate adjourned.

Website: Read the Parliamentary Hansard here

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