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Legislative Assembly for the ACT: 1999 Week 11 Hansard (21 October) . . Page.. 3495 ..

MS TUCKER (continuing):

the review. I understand that the Minister would then be subject to a writ of mandamus which, if successful, would force him/her to do the job he/she is supposed to do under the Act.

It is only in these circumstances that our terms of reference for a review specified in our original amendment would have been subject to the scrutiny of the court. In this situation, if the terms of reference had been supported by the Assembly, then any criticism of them would have been highly defensible. It is a circular argument. If the Assembly had supported it, then the basis for the legal challenge just would not have been there, unless there had been clear points of law affecting that amendment. The Minister could not specify exactly how our original amendment was at fault at law, so we can only assume it was not at fault.

I believe it is absolutely essential that this section of the Act be reviewed. The Act is going into new and uncharted territory in legislating for therapeutic protection. It may be appropriate to consider this move into therapeutic protection almost as a trial or as an experiment. The community sector, the legal profession and all those people who work with children and young people who are at risk to themselves or other people are concerned, and there is some division about this particular initiative.

Their concerns centre around a whole lot of issues. They centre around the loose definition of therapeutic protection. According to clause 230, therapeutic protection is care to protect the child or young person from serious harm. This is a very broad and loose definition that is open to many interpretations. Some in the sector believe it should be tightened up, that broad principles contained at the beginning of the Bill should be reinforced in the Bill and in particular that it should be possible to use this form of order only as an order of last resort.

There are also concerns about whether it is appropriate to detain children in a secure facility and to deny them their liberty if they have neither committed a crime nor been diagnosed with a mental illness. The concerns also centre around specific clauses of the Bill, such as clause 238, which allows the court to restrict the contact a young person subject to a therapeutic protection order can have with other people. This clause can allow a young person to be isolated from family and friends for 12 hours at a stretch for days on end. This is a provision that would clearly need scrutiny and reviewing.

In my last speech on this Bill I mentioned concerns that were raised in my inquiry into services for children at risk. I will not repeat them. I have also raised concerns about resourcing. We have seen no indication of the financial implications of this Bill and, in particular, the financial implications of therapeutic protection. It was the former executive director of the Children's, Youth and Family Services Bureau, Michael White, who in the public hearings for the children at risk inquiry acknowledged the enormous cost of existing programs for very disturbed young people, with one particular program for one young person costing in excess of $300,000.

In April the Community Advocate reported a research project she conducted into substitute care services provided for children at Marlow Cottage. She included the family services policies and procedures manual, chapter 9, page 21, which says:

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