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Legislative Assembly for the ACT: 2004 Week 01 Hansard (Tuesday, 10 February 2004) . . Page.. 26 ..

contact is not being maintained but it does not make a recommendation because of the Re-Focus program.

When we look through this report we become aware that the Re-Focus program was given a lot of credibility by the committee. I am not criticising the committee for that; I am just making the point that many of these serious issues were not raised strongly by the committee as it was convinced that the Re-Focus program was working. The Community Advocate states in this report that she is encouraged by the new director. She also states that improvements are occurring.

The report of the 2003 committee referred to record management and failing to keep accurate and coordinated records within and across agencies. The report of the 1997 committee referred in recommendation 26 to interagency case management and to the provision of guidelines. The 2003 committee report made certain recommendations about the 93 children who had been evicted from ACT Housing properties. The 1997 committee report referred to accommodation in recommendations 13 to 19. The committee recommended that the ACT government should commission a study to determine how to prevent children from being evicted.

After examining the terms of reference that were established for Ms Vardon, I established that the fourth term of reference refers to “any other matter relating to child protection in the ACT”. The first three terms of reference focus particularly on the department’s failure to fulfil its statutory obligations under section 162 of the Children and Young People Act 1999. I want to focus on the fourth point of reference—“any other matter relating to child protection in the ACT”. The department has not met its statutory obligations, which is a serious issue, but that has not happened across-the-board for many years, which is an even more serious issue.

Under Bill Stefaniak, we faced the same issues. It is easy to politicise this issue. I see this crisis as an opportunity to do some real work in this area. However, that will mean the expenditure of more money. We will require additional resources for the provision of management systems, filing systems and a change in public service culture. This issue does not involve only the Department of Education, Youth and Family Services; it also involves the law. Page 88 of the committee report states:

In November 2002, the Children’s Magistrate stated:

If I am correct in my opinion about the correct interpretation of paragraph 156 (1) (a) of the Act, the consequence is that the Children’s Court has less power to protect children from a real risk of harm than the Family Court. I commend this point to the attention of the Legislative Assembly.

The Committee was gravely concerned by the above comments made by the Children’s Magistrate.The issue the Magistrate was referring to is the standard of proof required under the Children and Young People Act 1999 to make orders for the care and protection of a child. At question is the application of the “Briginshaw principles”—principles derived from a 1938 High Court case dealing with whether the standard of proof of adultery for a divorce was the criminal standard (beyond reasonable doubt) or the civil standard (balance of probabilities).

There is an apparent tension between the application of the Briginshaw principles to proof of serious allegations of abuse or neglect of children and the

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