South Australia

Commission of Inquiry (Children in State Care) Bill 2004

A Bill For

An Act to provide for a Commission of Inquiry into allegations of failure on the part of government agencies, employees or other relevant persons to investigate or appropriately deal with allegations concerning sexual offences against children under the guardianship, custody, care or control of the Minister responsible for the protection of children; to provide evidentiary powers and immunities in connection with the inquiry; and for other purposes.

Contents

1 Short title

2 Commencement

3 Interpretation

4 Constitution of commission

5 Procedure

6 Power to require attendance of witnesses etc

7 Obligation to give evidence

8 Provision of support

9 Confidentiality and disclosure of information

10 Completion of inquiry and presentation of report

11 Protection from proceedings

12 Privileges and immunities

Schedule 1—Terms of reference

The Parliament of South Australia enacts as follows:

1—Short title

This Act may be cited as the Commission of Inquiry (Children in State Care) Act 2004.

2—Commencement

This Act will come into operation on a day to be fixed by proclamation.

3—Interpretation

In this Act—

authorised person means—

(a) the Commissioner; or

(b) any person appointed to assist in the conduct of the Inquiry;

child means a person under 18 years of age;

Commissioner means the person appointed to conduct the commission of inquiry under section 4;

evidentiary material means any document, object or substance of evidentiary value or possible evidentiary value to the Inquiry;

Inquiry means the commission of inquiry established under this Act;

sexual offence means a sexual offence within the meaning of section 4 of the Evidence Act 1929.

4—Constitution of commission

(1) A commission of inquiry is established with the terms of reference set out in Schedule 1.

(2) The commission is to be constituted by a person appointed by the Governor.

(3) An appointment made under subsection (2) will be on conditions determined by the Governor.

5—Procedure

(1) In conducting the Inquiry, the Commissioner—

(a) will not be bound by any rules or practices as to procedure or evidence, and may inform himself or herself in such a manner as the Commissioner thinks fit; and

(b) must seek to adopt procedures that will facilitate a prompt, cost-effective and thorough investigation of any matter relevant to the Inquiry; and

(c) may refer any matter to an expert for advice, investigation or report; and

(d) may refer any person to any agency or other service so that the person can obtain counselling or support; and

(e) must take all reasonable steps to avoid prejudicing any criminal investigation or prosecution.

(2) Subject to subsection (3), the Commissioner must, in conducting the Inquiry, take evidence in private.

(3) The Commissioner may, in exceptional cases and in the public interest, conduct any part of the Inquiry in public.

(4) The Commissioner may, as the Commissioner thinks fit, refuse to inquire into, or to continue to inquire into, a matter if the Commissioner considers the matter to be frivolous, vexatious or not sufficiently relevant to the Inquiry.

(5) A person must not, in placing evidence before the Inquiry, knowingly make a false allegation against another person with an intention to cause injury or harm to the other person.

Maximum penalty: $10 000.

6—Power to require attendance of witnesses etc

(1) An authorised person may issue a summons requiring a person to appear before the Inquiry at a specified time and place to give evidence or to produce evidentiary material (or both).

(2) A summons to produce evidentiary material may, instead of providing for production of evidentiary material before the Inquiry, provide for production of the evidentiary material to an authorised person nominated in the summons.

(3) An authorised person may administer an oath or affirmation to a person appearing before the Inquiry.

7—Obligation to give evidence

(1) If a person refuses or fails—

(a) to comply with a summons issued under this Act; or

(b) to make an oath or affirmation when required to do so by an authorised person; or

(c) to answer a question on a subject relevant to the Inquiry to the best of the person's knowledge, information and belief,

the Supreme Court may, on application by an authorised person, compel the attendance of the person before the Court to give evidence or to produce evidentiary material for the purposes of the Inquiry.

(2) A person who, without reasonable excuse, refuses or fails—

(a) to comply with a summons issued under this Act; or

(b) to make an oath or affirmation when required to do so by an authorised person; or

(c) to answer a question on a subject relevant to the Inquiry to the best of the person's knowledge, information and belief,

is guilty of an offence and liable to a penalty not exceeding $10 000.

8—Provision of support

(1) The Minister must, after consultation with the Commissioner, engage a person with appropriate qualifications in social work or social administration to assist in the conduct of the Inquiry.

(2) The Minister may, after consultation with the Commissioner, appoint other persons to assist in the conduct of the Inquiry.

(3) The Commissioner may, by arrangement with the relevant body, make use of the services of the staff, equipment or facilities of any agency or instrumentality of the Crown (including an administrative unit in the Public Service).

9—Confidentiality and disclosure of information

(1) Any law requiring a person to keep particular information confidential or in any way restricting the disclosure or publication of information does not prevent a person from providing information in the course of or for the purposes of the Inquiry.

(2) The Commissioner must, in his or her report on the outcome of the Inquiry, take all reasonable steps to avoid the disclosure of information that may identify, or lead to the identification of—

(a) a person who has been (or who is alleged to have been) the victim of a sexual offence while a child; or

(b) a person who has committed (or who is alleged to have committed) a sexual offence against a child if the interests of justice so require.

(3) However, the Commissioner—

(a) may use a code or other system of identification under which the Commissioner can separately identify any person, and may provide that identifying information, and any other information obtained during the course of the Inquiry, to the Minister or another public official (including a police officer), as the Commissioner thinks fit; and

(b) must, under an arrangement established with the Commissioner of Police, provide to the Commissioner of Police any information concerning the commission (or alleged commission) of a sexual offence against a child arising during the course of the Inquiry unless—

(i) the Commissioner has reasonable grounds to believe that the information has already been reported or provided to a police officer; or

(ii) the Commissioner has determined to provide the information to the Director of Public Prosecutions.

10—Completion of inquiry and presentation of report

(1) The Commissioner must complete the Inquiry, and prepare a report on the outcome of the Inquiry, within 6 months after the commencement of this Act or within such longer period as the Governor may, by instrument published in the Gazette, allow.

(2) The Commissioner must deliver the report to the Governor on the completion of the Inquiry.

(3) The Minister must cause a copy of the report to be laid before each House of Parliament within 12 sitting days after the receipt of the report by the Governor.

11—Protection from proceedings

No proceeding for judicial review or for a declaration, injunction, writ, order or other remedy may be brought to challenge or question—

(a) any proceeding undertaken in the conduct of the Inquiry; or

(b) the making of any decision or determination by the Commissioner; or

(c) the preparation or presentation of a report under this Act.

12—Privileges and immunities

(1) An authorised person has, in connection with the conduct of the Inquiry, and in respect of any report prepared as part of the Inquiry, the same protection, privileges and immunities as a Judge of the Supreme Court.

(2) A person who appears before the Inquiry, or who provides evidentiary material to the Inquiry, has the same protection, privileges and immunities as a witness in proceedings before the Supreme Court.

(3) A legal practitioner who represents a person in connection with the Inquiry has the same protection, privileges, immunities and obligations as counsel involved in proceedings before the Supreme Court.

Schedule 1—Terms of reference

1—Interpretation

In this Schedule—

child in State care means a child who was, at the relevant time, a child who had been placed under the guardianship, custody, care or control of a designated Minister, or another public official, under a relevant Act;

designated Minister means a Minister responsible for the administration of a relevant Act;

relevant Act means the Children's Protection Act 1993 or a corresponding previous enactment dealing with the protection of children;

sexual abuse means conduct which would, if proven, constitute a sexual offence.

2—Terms of reference

(1) The terms of reference are to inquire into any allegation of sexual abuse of a person who, at the time that the alleged sexual abuse occurred, was a child in State care (whether or not any allegation was previously made or reported).

(2) The purpose of the inquiry is to report on whether there was a failure on the part of the State to deal appropriately or adequately with matters that gave rise to the allegations referred to in subclause (1).

(3) The inquiry is to relate (and only to relate) to any conduct or omission occurring before 1 July 2004.

(4) The inquiry need not (but may, if relevant) relate to a matter that has been the subject of the Review within the meaning of the Child Protection Review (Powers and Immunities) Act 2002.

(5) The person conducting the inquiry must not purport to make a finding of criminal or civil liability.