Page 5326 - Week 13 - Tuesday, 15 November 2011
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processes and the absence of sufficient permanent and ongoing services to meet the demand that clearly exists when we have those emergency cases and need to place children urgently. I do believe that such a service would do better at ensuring the best possible outcomes for children and young people in those traumatic circumstances.
Let me go now to the advice itself. It raises two issues. Firstly, if the interpretation in the advice is correct, we have a problem as it creates a clearly unacceptable situation where organisations do not have to fulfil additional requirements and that a director-general does not have to take the additional steps to ensure that they are appropriate for the children and young people in the director-general’s care. This is not an acceptable outcome and if it is, in fact, the correct application of the current act, the Greens will be introducing amendments to ensure that it is no longer the case and that there are certain additional mandatory requirements in place where the director-general wishes to place children or young people in the care of a residential care service.
Secondly, I would like to say that, whilst I have only had a brief opportunity to reflect on the Solicitor-General’s advice—and, of course, some further time will be required to provide a more considered response—I would say that there do appear to be a couple of issues in the advice that are problematic, and some difficulty arises with the outcome of this interpretation which appears to render ineffective a number of requirements in the act that would otherwise appear to create mandatory obligations. Again, I stress that I have not had the opportunity to thoroughly consider the advice and I will request a briefing with the Solicitor-General about the issue. I certainly am happy to be corrected on the following views, but I do think it is important to raise the issues.
I think it is important to firstly understand that the act sets out a scheme where the director-general is responsible for the care of children and young people and has a very broad scope in which to do this, depending on the best interests of the particular child at the time. In deciding how to provide for the care of these children and young people, the director-general must of course place them in the care of someone else, and the manner in which that is done is regulated by the act.
No attempt has been made in the act to prescribe all the options available to the director-general. This is an important factor, particularly as emphasis in the advice was placed on the discretion to place children and young people in out-of-home care. The director-general may place the child or young person in an out-of-home care situation or the director-general may return the child or young person to their parents. The director-general may place the child or young person in Marlow, if that is the appropriate place for them. Equally, the child or young person may be detained in Bimberi, which would of course mean that the director-general may not place them in any other care arrangement.
The advice appears to be saying that the act has not set out a scheme where anything is possible, depending of course on the best interests of the child or young person, but if a certain course of action is chosen it must be done consistent with particular requirements. This is not an uncommon statutory construction and I think it is the
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