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2010
THE LEGISLATIVE
ASSEMBLY FOR THE
AUSTRALIAN CAPITAL
TERRITORY
CHILDREN
AND YOUNG PEOPLE (DEATH REVIEW)
AMENDMENT BILL
2010
EXPLANATORY
STATEMENT
Circulated by the authority of
Meredith Hunter
MLA
OVERVIEW
The purpose of the Children and Young People Death
Review Amendment Bill 2009 (the Bill) is to establish a committee to; maintain a
register of deaths of children and young people in the ACT, identify trends and
patterns in relation to the deaths of children and young people, undertake
research with the aim of prevention or reduction of child and young people
deaths, and provide advice to the Territory and non-government bodies about
programs and strategies that can prevent or reduce the likelihood of child or
young people deaths. The committee will be an independent, multidisciplinary
ministerial advisory body.
The death of any child or young person in the ACT is a tragedy and
sometimes is not preventable. However the purpose of a Children and Young People
Death Review Committee (CYP death review committee) is to review all child and
young people deaths, to consider the circumstances and make recommendations to
address systemic social and environmental issues which are associated with
children and young people. The objective of the Bill is to work towards
prevention of child and young people deaths through recommendations that target
the trends and patterns within the ACT context.
Currently the ACT has
three existing mechanisms which review the deaths of children and young people.
These include the ACT Coroner’s Court, the Clinical Review Committee (a
privileged committee) within ACT Health and an internal review process within
the Department of Housing and Community Services which reviews the deaths of
children and young people who are or were known to the Office for Children,
Youth and Family Support. The CYP death review committee would be the last
mechanism of review, once all other review processes have been
completed.
Each of these processes serves an integral and discreet
function. The CYP death review committee process will be a broader ranging and
comprehensive review. The CYP death review committee has:
− a
multidisciplinary panel of experts from a range of professions and backgrounds
including medical, child development, child safety, the Aboriginal and Torres
Strait Islander and general community;
− authority to review all deaths
of children and young people that occur in the ACT each year and of children and
young people who die interstate;
− the ability to analyse the
administrative or clinical issues as well as the wider social or contextual
circumstances underlying the death;
− a systemic and preventative
approach that includes analysis of the factors that contributed to the death and
identification of possible strategies or means which might be used to address
and prevent future deaths;
− an independent governance structure with
legislated appointment and terms of reference; and
− transparency of
process and de-identified public reporting of the outcomes of the reviews.
HUMAN RIGHTS
The Bill potentially engages the right
-
a) not to have his or her privacy, family, home or correspondence
interfered with unlawfully or arbitrarily; and
(b) not to have his or her
reputation unlawfully attacked.
Consistent with other child and young
people death review teams throughout Australia, the CYP death review committee
established by the Bill aims to identify strengths and weaknesses in systemic
responses to child and young people deaths and future preventative action. The
CYP death review committee does not determine culpability or comment on
individual performance, nor does it investigate the causes of child and young
people deaths; that role is left to the police and coroner. The CYP death review
committee does not conduct interviews of persons connected to the deceased,
rather they rely on documented material and analysis.
The Bill does give
the committee the power to compel a person to provide information where they
consider, on reasonable grounds, that the information is necessary for the
exercise of its functions. To the extent that this may engage the right to
privacy it must be noted that the information disclosed to the committee remains
confidential and that the Bill provides for the de-identification of any
material to ensure that individuals are not named or identified as a result of
the committee review process.
The extent to which the Bill engages the
right to privacy identified in Section 12 of the Human Rights Act 2004
must also be balanced against the extent to which the Bill recognises and
promotes the right to the protection needed by a child established by Section 11
of the Human Rights Act 2004.
Given the gravity of the issue, the
death of children and young people in our community, and the task being
performed by the committee, the identification of measures to reduce those
deaths, any potential impingement on the right to privacy is considered
reasonable, proportionate and demonstrably justified consistent with Section 28
of the Human Rights Act 2004.
REASONS FOR THE DELEGATION OF
LEGISLATIVE POWER
The Bill delegates legislative power to the
Minister for Children and Young People to allow the CYP death review committee
to perform their functions. It is not practical for the Legislative Assembly of
the ACT to fulfil the functions delegated to the Minister. The delegated
authority is minor and technical in nature and does not involve any substantive
policy matters. Rather it is limited to the administration and practical
functioning of the committee.
SUMMARY OF CLAUSES
Clause
1 Name of the Act
This clause is a technical clause and sets out the
name of the proposed Act as the Children and Young People (Death Review)
Amendment Act 2010.
Clause 2 Commencement
This clause is
a technical clause setting out when commencement of the Act will occur. It is
intended that commencement will occur 3 months after its notification
day.
Clause 3 Legislation amended
This clause identifies the
Act to be amended, namely the Children and Young People Act
2008.
Clause 4 Chapter 19A
This clause inserts a new
chapter into the Children and Young People Act 2008, which establishes
and sets out the functions, powers and processes of the Children and Young
People Death Review Committee (CYP death review committee).
Section
727A – Establishment of the committee - provides for the
establishment of the CYP death review committee.
Section 727B
– Functions of the committee - sets out the functions of the
committee. These functions include keeping a register of death of the children
and young people that occur in the ACT and the deaths that occur outside of the
ACT of children and young people who normally live in the ACT. The CYP death
review committee will also identify trends and patterns in relation to the
deaths of children and young people and undertake research that aims to prevent
or reduce the likelihood of the death of children and young people.
The
CYP death review committee is required to make recommendations about
legislation, policies, practices and services for implementation by the
Territory and non-government bodies to help prevent or reduce the likelihood of
death of children and young people and also to monitor the implementation of the
committee’s recommendations.
The committee is also given the
function to report to the Minister through an annual report each financial year
and any other function given to committee under Chapter 19A.
Section
727C – Committee membership - provides for the membership of
the committee. The CYP death review committee is to be made up of the Chief
Executive of the Department of Disability, Housing and Community Services, the
Children and Young People’s Commissioner and members appointed by the
Minister. This section also defines that the chair of the CYP death review
committee must have an appointed chair who is an independent member of the
committee without the right to vote.
Section 727D -
Appointment of committee members - sets out the criteria for the
appointment of committee members and skills, experience, qualifications and
positions that members of the committee must hold. The representation of this
committee aims to broadly embody a variety of professions and fields that work
with or have an interest in the safety and well-being of children and young
people in the ACT.
The Bill provides that where it is not practicable to
appoint a person described the Minister need not do so. The exercise of the
functions of the committee will not be affected by the reduced membership. The
Minister may, when practicable, appoint a person under subsection 727C to
provide the committee with a full complement of members.
Section
727E - Appointment of chair of committee - provides that the Minister
must appoint someone as the chair of the CYP death review committee.
The
role of the independent chair established by this section is modelled on the
Management Assessment Panel (MAP) which operates in the office of the Public
Advocate of the ACT. The independent chair is intended to ensure that the panel
operates in a clear and transparent manner. This model is preferred to ensure
that the committee operates in a manner that takes into account the sensitive
and potentially confidential nature of the subject matter and the need for all
parties and members of the committee to be transparent in ensuring that the
functions of the committee are fulfilled. The chair will facilitate the
committee’s exercise of its functions and chair all meetings of the CYP
death review committee (see section 727I)
Section 727F - Ending
member appointments - provides that the Minister may end the appointment of
a member of the CYP death review committee in a defined set of circumstances.
Section 727G - Arrangements for staff - provides that the
Chief Executive must on request of the CYP death review committee, make
arrangements with the committee to use public servants in the administrative
unit under the Chief Executive’s control.
This section also
provides that the relationship between the committee and public servants under
this section are governed by the Public Sector Management Act 1994.
Section 727H - Meetings - requires the CYP death review
committee to meet at least 4 times each year.
Section 727I -
Presiding member at meetings - requires the independent chair of the CYP
death review committee to preside at all meetings. The chair must call meetings
with a two week notice period.
Section 727J - Quorum at
meetings – requires that ¾ of the voting members of the CYP death
review committee must be present to carry out business of the CYP death review
committee. It is not intended that the chair forms part of the quorum.
Members of the CYP death review committee must not be represented at a
meeting by anyone else. The seriousness and potentially confidential nature of
the CYP death review committee means that only members appointed by the minister
may participate in the exercise of committee functions.
Section
727K - Voting at meetings – sets out that each member of the
CYP death review committee other than the chair has a vote on each question to
be decided and that a question is decided by a majority of votes.
Section 727L - Children and young people deaths register -
establishes the children and young people deaths register which must be
maintained by the CYP death review committee. The register contains information
on the cause of death, the age and sex of the child or young person and whether
the child or young person is of a Torres Strait Islander background. The
register will also include whether the child or young person or the sibling of a
child or young person was identified under the Children and Young People Act
2008 as being in need of care and protection within 3 years before his or
her death and anything else prescribed by regulation.
The register may
also contain any other demographic data available to the CYP death review
committee and any information about a child or young person or the circumstances
of the child or young person’s death that the committee considers
relevant. For example information that would provide a qualitative narrative or
contextual understanding of the circumstances surrounding the death of a child
or young person.
This section also specifies that the CYP death review
committee must index the deaths on the register according to cause of death, age
and sex of the children and young people and that the CYP death review committee
Section 727M - Power to ask for information, documents and
other things - provides that the CYP death review committee has the power to
require people to provide it with written information and documents relevant to
the consideration of a review of a death. This power is one that is commonly
given to investigative bodies and is consistent with the powers currently
available under the Discrimination Act 1991, Community and Health
Services Complaints Act 1993 and the Human Rights Commission Act
2005.
Section 727N - Children and young people deaths
register—who may have access? - provides that the committee must
ensure that the children and young people deaths register is accessed only by
CYP death review committee members, staff who are assisting in the
administration of the committee as outlined in Section 727G or someone
authorised by the committee to have access to the register. Such an
authorisation is a notifiable instrument. Discretion to grant access to the
register is given to the committee as deemed necessary, such as the case of
requiring an advisor to the committee; however a record of any access must be
kept and publicised through a notifiable instrument.
Section 727O
- Annual report – provides that the CYP death review committee must
report annually to the Minister on following matters:
− the number of
deaths of children and young people;
− the age and sex of the child or
young person who died and if under the Children and Young People Act 2008
this child or young person has been in need of care and protection within a
three year period before their death;
− or is a sibling of a child or
young person identified under this Act as being in need of care and
protection;
− the patterns or trends identified in relation to the
death of children and young people both generally and for those children or
young people who under the Children and Young People Act 2008 have been
in need of care and protection within a three year period before their
death.
The CYP death review committee may also include in the annual
report;
− its recommendations about legislation, policies, practices
and services for implementation by the Territory and non-government bodies to
prevent future deaths of children and young people;
− information about
the implementation of any previous recommendations of the committee; and
− any other matters considered relevant.
The report must be
presented to the Minister within 4 months of the end of the financial year. The
Minister is required to present the report to the Legislative Assembly within 6
sitting days after the report is given to the Minister.
The Minister may
amend the report to prevent the disclosure of the identity of a child or young
person who has died or information that may allow the identity of a child or
young person who has died to be worked out.
Clause 5 Dictionary, new
definitions
Inserts two new definitions in to the Children and Young
People Act 2008 that relate to the children and young people deaths register
and the CYP death review committee.