Legislative Assembly for the ACT: 1999 Week 11 Hansard (19 October) . . Page.. 3332 ..
MR STEFANIAK (continuing):
What is "relevant"? There is nothing to assist us, and that may be difficult for a court. I have significant problems in terms of subclauses (5)(c), (d) and (e). Subclause (c) refers to:
the kind of therapeutic protection provided for each child or young person, whether the provision has been successful and an explanation of why the provision has or has not been successful;
What is "success"? This is an incredibly difficult area. How are we meant to look at that? I have some grave problems there. What is "successful" meant to be? It is inevitably a very subjective term. The order is supposed to be made only where the program is likely to lead to significant improvement in the circumstances of the child or young person. I wonder what we can really make out of (c).
Subclause (d) refers to:
an assessment of the adequacy of resources provided for therapeutic protection orders;
Again, that is incredibly subjective in terms of members of the Assembly. While members of the Assembly have every right to discuss adequacy of resources in a political context, to put that in legislation is quite extraordinary. I have not seen that in legislation before. Legislation necessitates actions, which cause resources to be expended. That is understood. But to have an assessment of the adequacy of resources provided for therapeutic protection orders - we might as well have a clause like that for the adequacy of resources provided for enforcing drink driving laws or enforcing police taking actions under the Crimes Act. I am sure they would love to see something like that in there. But it is not. The Defence Force would love to see "adequate resources" in the Constitution. You could put it in any form of endeavour of government. It is strange to have that in legislation. That is more a job of a legislature to actually look at in political terms as it sees how legislation actually operates. It is a political question, not a legal one.
Again, subclause (e) states:
whether there has been any unmet need in relation to the provision of therapeutic protection.
That is very much of a political statement, entirely inappropriate in legislation. I have looked at this; it is very difficult even to amend it to give it some strength. A far better option, Mr Speaker, would be for members, as they said they would do, to see how this all goes, to monitor it, rather than to put, what I would submit, is some very strange provisions into legislation. I have not seen anything like this in legislation before. I think it would be a very dangerous step if this were followed. I am not criticising Ms Tucker for attempting it, but it is certainly not something one would expect to see in legislation. There are other, far more appropriate ways of doing it.