Ms HUTCHINS (Minister for Aboriginal Affairs) tabled following statement in accordance with Charter of Human Rights and Responsibilities Act 2006:

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (the charter act), I make this statement of compatibility with respect to the Children, Youth and Families Amendment (Aboriginal Principal Officers) Bill 2015 (the bill).

In my opinion, the bill, as introduced to the Legislative Assembly, is compatible with human rights as set out in the charter act. I base my opinion on the reasons outlined in this statement.

Overview of bill

The purpose of the bill is to amend the Children, Youth and Families Act 2005 (the act) to make further provision in relation to the authorisation of a principal officer of an Aboriginal agency.

Human rights issues

The following rights under the charter act are potentially relevant to the bill: the right to privacy (section 13) and cultural rights (section 19).

Right to privacy

Section 13(a) of the charter act provides that a person has the right not to have his or her privacy or family unlawfully or arbitrarily interfered with. The right to privacy is relevant to information-sharing provisions in the bill.

The bill inserts new section 18(2A) into the act, which enables the Secretary to the Department of Health and Human Services to share information with the Aboriginal agency and the principal officer that is reasonably necessary to assist the Aboriginal agency and the principal officer to make an informed decision about whether to agree to an authorisation. New section 18C permits the secretary to disclose information to the principal officer that would otherwise be prohibited from disclosure under the act.

Any interference with a person’s privacy resulting from the above provisions will be neither unlawful nor arbitrary. The purpose of these provisions is to enable the Aboriginal agency and the principal officer to determine whether to accept an authorisation; and to enable the principal officer to perform the functions and exercise the powers in respect of an Aboriginal child that the secretary would otherwise perform and exercise for the child’s protection. Information disclosed under section 18(2A) is prohibited from being disclosed for any secondary purpose by new section 18D, which is a penalty provision. Once an authorisation is made, the principal officer is bound by the existing confidentiality provisions in the act under existing section 18(5).

I consider that any interference with privacy occasioned by the sharing of personal information in connection with the authorisation of a principal officer of an Aboriginal agency, will be lawful and not arbitrary. Having regard to the circumstances in which information may be shared and the safeguards imposed, I conclude that the information-sharing provisions in the bill are compatible with the right to privacy.

Cultural rights

Section 19 of the charter act provides for the right to enjoyment of culture, and that Aboriginal persons hold distinct cultural rights and must not be denied the right to enjoy their identity and culture and to maintain their kinship ties, amongst other rights.

The bill promotes the distinct cultural rights of Aboriginal persons by addressing limitations that currently impede authorisations to a principal officer of an Aboriginal agency under section 18 of the act. Authorisations under section 18 will support self-determination and the delivery of a culturally appropriate service, by allowing a principal officer to perform specified functions and powers in respect of an Aboriginal child on a child protection order.

New section 18B provides the principal officer with the power to delegate to a person or class of persons employed by the Aboriginal agency. The internal review provisions of the act are amended to allow for review of child protection decisions under an authorisation in the Aboriginal agency, rather than in the department.

New section 18A allows an acting principal officer to perform the functions and exercise powers specified in an authorisation, even if the person is not an Aboriginal person. This is needed to minimise disruption to the child which may result if the principal officer is unable to perform the functions of his or her office and the authorisation was required to be revoked for that reason.

Accordingly, I conclude that the provisions of the bill are compatible with cultural rights.

Martin Foley, MP
Minister for Housing, Disability and Ageing