Page 5323 - Week 13 - Tuesday, 15 November 2011
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The Solicitor-General has said that it is perfectly all right, it is perfectly legal, for the chief executive to elect to send a child or young person to a place with no electricity, no hot water, no beds and no bedding, with broken glass on the floor and with broken windows letting in the cold in the middle of winter, and that it is perfectly all right for him to say that these children may reside with somebody who is not legally authorised to do so. This defies belief.
The fact that the minister is so desperate to exonerate herself that she would have the audacity to table this preposterous advice today shows just how desperate this is. This is a minister who is trying to distract from the fact. The facts are that, on 24 occasions, agencies in this town—not one: a number of agencies—were asked to provide residential care services when they were not authorised to do so.
Let us look at the legislation. It is quite complex. Section 508 of the Children and Young People Act says that one of the classes of out-of-home care is a residential care service. Section 511 says that a residential care service is “an entity authorised by the director-general under section 520”. Section 520 says that the director-general may authorise, in writing, an entity to exercise daily or long-term care responsibility but that the director-general may only do this if they are satisfied that that agency is a suitable entity. That takes us back to section 63. Section 63 of the act says that the director-general may approve someone to be a suitable entity if they are satisfied that they meet certain criteria and that if he does so orally he must follow that up as soon as possible, in writing. Going back to the 500s in the act, section 514 says:
A residential care service may, but need not, accommodate a child … at a place of care.
Section 521 says that the director may orally authorise an entity as an out-of-home carer, but that the director-general must, as soon as possible, give the authorisation in writing and give that written authorisation to the entity. And here is the killer. Here is the real kicker at the end that ties the minister into this: the minister may approve a place of operation as a residential care service, as a place of care, if the minister is satisfied that the residential care service and the place of care comply, and are likely to continue to comply, with the out-of-home care standards.
What we have here is what the legislation actually says. There are a whole lot of instances of “may” here, but the Solicitor-General has said that, because it does not say “must”, he can do any of those things and anything else he likes. This defies the common man test. Go out there onto London Circuit and ask any man or woman getting off the 300 bus whether they think that, if you hold your mouth right and squint, when it says “may” it means that the director-general can do anything he likes. This is preposterous.
We have to ask the questions. A number of agencies were asked to provide out-of-home care services who were not authorised to do so. Were any of these agencies ever classified as a suitable entity? We know that in the case of one, in particular, that was never the case, because we have a copy of the letter from the ACT Government Solicitor saying at great length that they were not a suitable agency. On 30 August,
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