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STANDING COMMITTEE ON COMMUNITY AFFAIRS
07/04/2009
Implementation of the recommendations of the Lost Innocents and Forgotten Australians reports

CHAIR —I welcome officers from the New South Wales Department of Community Services. Information on parliamentary privilege and the protection of witnesses and evidence has been provided. As departmental officers you will not be asked to give opinions on matters of policy, though there will be questions asked on a range of things. I cannot stop senators asking questions, you just do not have to answer them if they are asking for opinions on policy.

We have your submission. Thank you. I do appreciate the fact that the New South Wales department and the government have provided a submission. We did not have the same attendance from the Victorian government. They did not contribute to our hearing, though most other governments have. We appreciate your cooperation. Would either or both of you like to make an opening statement?

Ms Mallett —We have an opening statement, which we can provide for the record. First of all, we want to thank you for the opportunity to provide comment on the New South Wales government’s submission to the inquiry into the implementation of the recommendations of the Lost innocents and Forgotten Australians reports.

In respect of the Lost innocents report, as you probably know, many of the recommendations of the report on child migration and lost innocents related to areas of Commonwealth responsibility, and a formal New South Wales government response was not provided at that time. Nevertheless, the New South Wales government has supported former child migrants through counselling, through family tracing and through family reunion services. Between 2001 and 2006, through funding of the International Social Service New South Wales office, New South Wales assisted many former child migrants to travel to their country of origin and reunite with their families. A commemorative sculpture was also dedicated to former child migrants in New South Wales and it was unveiled by a former minister for community services on 23 March 2006. The sculpture, which is located on the grounds of the Australian Maritime Museum, was jointly funded by the New South Wales and Australian governments and developed in consultation with former child migrants themselves.

In respect of Forgotten Australians, New South Wales has enacted legislation or established systems which address many of the recommendations of the Forgotten Australians report. Generally, recommendations which were not supported related to the establishment of additional systems or services for people who experienced institutional care as children which would duplicate existing services or systems that were available to them as members of the New South Wales public. In relation to redress for care leavers—recommendations 6—the New South Wales government supports the issue of compensation being considered at the national level and would be willing to assess the viability of a proposal for a national compensation scheme developed through the contribution and cooperation of all jurisdictions as well as churches and other relevant agencies.

New South Wales claims for compensation in relation to abuse in care are assessed on a case-by-case basis. The department makes a determination based on the available evidence. If a legal liability is considered to exist, the claim may be settled. Claimants may also have the option of filing a suit against the Department of Community Services. In addition, there may also be entitlement to make a claim under the victims of crime compensation in New South Wales.

In relation to services for care leavers and the number of recommendations in relation to this issue—Nos 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29 and 30—the department provides or funds a number of services to assist and support those people who grew up in institutional care. In particular, the department funds Relationships Australia to operate a state-wide specialist service for mature care leavers called the Aftercare Resource Centre, known as ARC. This service includes a telephone helpline, information, counselling, advocacy, assistance with file readings and also with family reunions. The service is available to older New South Wales care leavers, Australia wide.

The department also provides recurrent funding to the Salvation Army Special Search Service to assist older care leavers to locate their family. In addition, we fund an Aboriginal organisation called Link-Up Aboriginal Corporation to provide support to Aboriginal people who were separated from their families when they were children to reconnect with family and kin. These services are in addition to the services provided by the Department of the Community Services in assisting care leavers access information about their time in care. In March 2008 the former New South Wales minister for community services announced funding for Care Leavers Australia Network, or CLAN, to support its valuable work in advocacy support and information to people who were in care in the past.

In relation to the establishment of an external complaints review mechanism and publication of data on abuse complaints, which refers to recommendations 8, 9 and 10, New South Wales already has a significant number of oversight and complaints management mechanisms in place. There are, as you probably know, independent bodies such as the New South Wales Commission for Children and Young People, the Office of the New South Wales Children’s Guardian and the office of the New South Wales Ombudsman that all play an important role in protecting the wellbeing and safety of children and young people currently in care. The New South Wales Ombudsman publishes information in his annual report regarding allegations of reportable conduct from government and non-government agencies involved in out of home care and child protection.

New South Wales government supported an apology, which was recommendation 2 in that report, to people who experienced institutional care. In June 2005, the former minister, the Hon. Reba Meagher, MP, issued a formal apology in the New South Wales parliament for the hurt experienced by many care leavers. New South Wales is currently finalising a memorial to commemorate the experiences of institutional care leavers. Arrangements are being confirmed for a memorial to be located in the Royal Botanic Gardens of Sydney. Consideration is being seriously given, in conjunction with important parties that we need to consult with in these matters, including care leavers, to the planning of a healing service in conjunction with a memorial unveiling.

In terms of access to records, recommendations 12, 13, 14, 15, 16, 17 and 18, New South Wales government recognises the importance of information to care leavers about their time in state care. The New South Wales State Archives has a program for the preservation of existing files of former state wards. However, regrettably, in accordance with past record-keeping practices, records were routinely destroyed throughout much of the 20th century until the early 1990s. In 2005 a program commenced to identify and index types of surviving historical records which include some personal information about former wards, other former clients and the estimated 100 children’s homes the department formerly operated. To date almost 63,000 new client records have been indexed.

The New South Wales Children and Young Persons (Care and Protection) Act 1998 has been amended so that original birth certificates, school reports, medical reports, photographs, greeting cards and similar personal records on archived ward files can be removed and given to former wards. Legislation in New South Wales prohibits the destruction of records relating to those who have been in care. The department records are kept in local offices while active and then transferred to the New South Wales government repository where they are stored indefinitely. New South Wales legislation also provides for all persons who were in care to have access to any personal information held by the designated agency that provided care or the carer. The terminology ‘designated agency’ is an accredited organisation accredited by the New South Wales Children’s Guardian to provide out of home care. The agency must also provide appropriate support to the person accessing the information.

We have also participated on a working group with the Community and Disability Services Ministers’ Advisory Council to progress the recommendations of the cross-jurisdictional interest and that pertains to recommendations 22, 28 and 31. I am sorry to have taken so long.

CHAIR —That is okay there were a lot of recommendations. Ms Woolley, do you have anything to add?

Ms Woolley —No, I do not.

Senator FIFIELD —Ms Mallett, I have to start with some bad news I am afraid. A recurring theme in the evidence given by witnesses today is that, if you ranked the various jurisdictions, New South Wales would be the least favourably regarded in terms of handling these issues. I appreciate that is outside your control. You just administer the policy of the government of the day, but I should put that on the record for the sake of completeness.

I noted that in your evidence you mentioned that New South Wales would support a national compensation scheme and would support being part of such a scheme with other institutions and jurisdictions. Is it the position of the New South Wales government that, if there were such a national compensation scheme, they would fund it according to the liability of New South Wales? Let us just say that New South Wales is a third of the nation, and let us assume that New South Wales has a third of the affected people. Would New South Wales in that circumstance be prepared to submit a third of the moneys to a compensation fund?

Ms Mallett —I think that is a question that only the New South Wales government can answer, so I am unable to—

Senator FIFIELD —So the government does not have a position as such that you can—

Ms Mallett —If I can recall what I said—and I will refer back to my notes—

Senator FIFIELD —Please feel free to do that.

Ms Mallett —I think what I said was that we would be willing to assess the viability. We are certainly willing as a department to talk with other jurisdictions about the viability of such a scheme, and that includes, of course, the Commonwealth and other important members and stakeholders in that. So that includes potentially other people that you have had appearing before the inquiry—people giving evidence—because I would think that people would have a range of views about whether there ought to be a national compensation scheme and about the contributions of various jurisdictions to that scheme.

Senator FIFIELD —I apologise if I put too much of a favourable light on the New South Wales position in saying that it supported a national compensation scheme. So it would be fair to say that the New South Wales government would support assessing the viability of a compensation scheme?

Ms Mallett —Yes, I think so.

Senator FIFIELD —I just wanted to clarify that; thank you. You mentioned that New South Wales assesses claims on a case-by-case basis. Are you able to give an indication as to how many claims have been made and how many have been settled in favour of the claimant?

Ms Mallett —I would have to take that question on notice. I do not have those numbers available to me.

Senator FIFIELD —Please do. Are you at least able to say if there have been any claims which have been settled in favour of the claimant?

Ms Mallett —I would not want to speculate on that matter. It is a matter on which I do not have the information with me today, and I would like to take the question on notice.

Senator FIFIELD —Certainly. Is that something which is done within or by your department, or is it another agency?

Ms Mallett —It is done within the department, but it is not in my direct line of responsibility, so I would have to seek that information from a colleague.

Senator FIFIELD —It is not in Ms Woolley’s area of responsibility?

Ms Woolley —No.

Senator FIFIELD —Okay.

CHAIR —While you are taking questions on notice: is there a confidentiality clause in any settlements that are made? Is there a policy that there is a confidentiality clause involved?

Senator FIFIELD —I am sure that, as you will appreciate, in this area it is a fairly fundamental question whether there has been any claim which has been settled in favour of a claimant. It might give some indication as to the accessibility and workability of that approach.

Ms Mallett —Sure.

Senator FIFIELD —That would certainly be useful information. I think you also mentioned that individuals are entitled to information about them which is either held by the department or held by institutions which were accredited by the New South Wales government. In evidence earlier today, one of the witnesses said that they were of the view that that information could only be accessed via FOI. From what you are saying, it sounds as though there is an as-of-right entitlement to that information and that you do not have to use the FOI processes to access that information.

Ms Mallett —They would need to use the FOI processes. There is a fee generally attached to an FOI application, but that fee can be—and indeed is—waived.

Senator FIFIELD —What sort of quantum are we talking about in terms of the fee?

Ms Mallett —At the moment I think it is about $30. Sorry—my colleague is saying that there are free applications for personal information. I guess what we need to always be assured of is that when people are seeking information about themselves they are actually the person to whom the information applies, because personal information can be used and misused in a range of ways, as you are probably aware of. We like to have a process where we can verify that the record a person is seeking is actually about themselves. We also have a policy of providing support when people are reading their records because looking back at history often provides people with a very confronting emotional experience. Enabling people to see what information is there and being there to support them is, I think, a priority the department has in relation to these records.

Senator FIFIELD —How is that support practically rendered? Is there someone who is there—

Ms Mallett —Is physically there?

Senator FIFIELD —with them when they receive the information?

Ms Mallett —Yes. If a person wishes to bring a support person of their own, which may be a family member or a close friend, they are certainly able to do that while they are reading the record. We do need to make sure though that any information in a record that is about somebody else and their personal information is of course not available to the individual.

Senator FIFIELD —Thank you for that. You also mentioned that the department gives some funding to the Salvation Army to assist care leavers to find family. I am just interested in that instance because—and I am not necessarily talking about the Salvation Army—particular denominations are often the entities which the care leavers have an issue with. Are there issues with care leavers having to go through an organisation that may have in fact caused them harm in the first place to endeavour to find family members? I just wonder how that issue is reconciled and if indeed they are the appropriate bodies to get the funding to do this work.

Ms Mallett —I think there is a need for multiple ways for people to access information. It is not only the Salvation Army that is accessing Salvation Army records. They may indeed be the organisation that advocates or supports the care leaver accessing a departmental record rather being the only organisation who we fund to access that organisation’s records. It is not a relationship about giving the Salvation Army money for them to access their own records. It is a broader role in terms of being able to provide support if the person wishes to approach another organisation in relation to that matter.

Senator FIFIELD —But if people were seeking to access Salvation Army records to access family because they had been in the care of the Salvation Army, this funding would allow that.

Ms Mallett —It could potentially be used that way but it is not specifically for that purpose.

Senator FIFIELD —Are there any other organisations which are funded to provide the same service?

Ms Mallett —In my opening statement I said that the International Social Service office was allocated funding between 2001 and 2006 to facilitate family link-up. Similarly, the Aboriginal organisation Link-Up, which is staffed and operated by Aboriginal people themselves, is the central organisation that Aboriginal people can contact to assist them in accessing records held by not only the department but a range of other organisations that may have provided care for Aboriginal people in the past.

Senator FIFIELD —But at this point in time is the Salvation Army the only organisation which is funded to provide this particular service for care leavers to help them find family?

Ms Mallett —I would just like some clarification on what you mean. If a 21-year-old wished to access their records now and they had been in the care of the Salvation Army, they would be expected, as part of their funding that we provide for out of home care and their accreditation requirements and the legislation, to give access to a young care leaver to their records.

Senator FIFIELD —Sure, but—

Ms Mallett —There are a range of non-government organisations in New South Wales that are currently accredited to provide out of home care. As part of their responsibility as a designated agency they are supposed to work with the child who is in their care at the time and also give access to the child or young adult, when they leave care, to any records that have been held while they have been in care. At the end of seven years, those records are bundled up and provided to the state records department because they are regarded as state records.

Senator FIFIELD —Just to help me understand, in relation to the Salvation Army program you mentioned in your opening statement: is the Salvation Army the only organisation which receives funding for that activity from the department?

Ms Mallett —I am trying—

Senator FIFIELD —I am raising the Salvation Army because you said that they provide a particular service.

Ms Mallett —I guess I am trying to describe the system currently provided for out of home care recipients or kids in care in New South Wales. We have at the moment a range of organisations in New South Wales that are provided with funding by the New South Wales government to provide out of home care.

Senator FIFIELD —Okay. So the same sort of funding that is provided to the Salvation Army for the purpose that you mentioned in your opening statement is provided to other organisations?

Ms Mallett —As part of their funding to provide out of home care for children in their care at the moment and care leavers, yes.

CHAIR —Ms Mallett, in your submission—I am not sure which page this is—it says:

The Salvation Army Special Search Service also receives funding to help care leavers locate family members.

Senator FIFIELD —That is right. Perhaps you could refer me to that page.

CHAIR —It is under ‘Recommendation 21’.

Senator FIFIELD —Okay. Are there any other organisations which receive funding specifically for a special search service?

Ms Mallett —Not to my knowledge, but I could check with our funding people in the department. However, there is an obligation on current designated agencies within New South Wales to provide that service to children who have been in their care who are now adults who wish to see records that were maintained on them while they were in care.

Senator FIFIELD —I appreciate that. It took a while to get there, Ms Mallett, but we got there in the end.

Ms Mallett —I was confused by the question that you were asking, because there are current obligations on funded organisations—

Senator FIFIELD —To provide assistance with search services.

Ms Mallett —Yes.

Senator FIFIELD —But then you will check whether the Salvation Army is the only organisation which gets specific funding to provide that service.

Ms Mallett —Yes, but remembering that there is—

Senator FIFIELD —There are other organisations which—

Ms Mallett —Like Link-Up, which is an Aboriginal organisation that has that function and performs it admirably for Aboriginal people in New South Wales.

Senator FIFIELD —That is a particular group, admittedly. But my point is that there would be people for whom going through the Salvation Army provided particular difficulties. My question is whether it would be appropriate for another organisation which did not have a history of providing care, which had not had carriage of people who suffered, to receive the funding direct to provide these sorts of services. It may well be an organisation which already seeks to assist and represent people who have suffered.

Ms Mallett —As I mentioned, Relationships Australia, for example, which I do not think has any history of providing any form of care to children in New South Wales either now or in the past, certainly provides counselling and other assistance and is funded to do that.

Senator FIFIELD —Sure. But they are not specifically funded to do that task, as is the Salvation Army?

Ms Mallett —I will take that back and take that question on notice to double check.

Senator FIFIELD —I am looking at this from the point of view of trying to minimise the ways in which distress could unintentionally be effected on people who have suffered. That is where I am coming from—if we can seek to remove those things which unnecessarily give distress.

Ms Mallett —Yes. I understand that for people who have been in care and have been traumatised by that experience, who had terrible things happen to them in their arrangements, that approaching the organisation that may have at that time provided that care, whether it was five years ago or 50 years ago, may be inappropriate.

Senator FIFIELD —Thank you. Even though practices may have changed in a particular organisation, it is important that organisations without a history that are seen as honest brokers are supported as well.

Ms Mallett —Senator, I do understand the point that you are making.

Ms Woolley —We understand that the Salvation Army is regarded as a very good service. It provides a very efficient service for the resources it gets.

Senator FIFIELD —Sure. If you could take up those questions on notice that would be appreciated. Thank you.

Senator FARRELL —Thank you for coming along and giving evidence to us. I have a couple of questions in respect of your comments on recommendation 12. You talk about some of the problems that you have had in respect of past record keeping and, apparently, the policy of destroying some of the records. You then go on to say that you have approximately 61,000 ‘new’ client records. Do I understand these to be the ones that you had previously stored away somewhere and you have now put onto a computer system or are you referring to something else?

Ms Mallett —Which page of the submission are you referring to?

Senator FARRELL —Recommendation 12.

CHAIR —It is 9.113.

Senator FARRELL —You say:

In 2005, a program commenced to identify and index types of records which include some personal information about former wards ...

—It is actually correct. I was puzzled by the number because my records say 63,000. I may have transcribed a number incorrectly; I am sorry.

Senator FARRELL —Okay. I am not disputing figures. This is not an argument about if the figures are 61 or 63. I am just trying to find out why you have used the word ‘new’ in respect of client records. It seems an unusual word to use.

Ms Mallett —I see what you mean.

Senator FARRELL —Are they in fact old records?

Ms Mallett —What we are saying is we have not discovered new individuals as such. There has been a collation of client records. We have been able to draw from various areas and put them in a central repository, so that people will then be able to access. It is easier for us to access them when people make the requests, plus also for—

Senator FARRELL —Right. Is this figure, whether it be 63 or 61—and you say 16 per cent of the records have been destroyed—the remaining 84 per cent? Are there other documents that you are working on that will boost this figure? I suppose the point is that it seems to be a remarkably low figure. That is what surprises me. I think that given some of the evidence that we have heard from the church based organisations today about the situation across Australia. For instance, the potential figure for the Catholic Church might be half a million people. It seems to me to be a surprisingly low figure.

Ms Woolley —I think it is because of the history of destroying records. So it is low and this has just been an effort as to what is existing in state records, to pull all that together and—

Senator FARRELL —Okay, so this is pretty much the extent to which you are going to be able to go back?

Ms Mallett —Probably, which is unfortunate.

Senator FARRELL —Yes. Thank you, and that is all I have.

CHAIR —I do not understand any of that paragraph. I have read it several times. It could well be in Korean given how much of it I understand. How do you know that the department has no surviving wardship records for approximately 16 per cent of mature-age care leavers? Where do you get the figure of 16 per cent from? We have had evidence and you have given submissions that there was a surprising system that allowed records to be destroyed until relatively recently. So how do you know that approximately 16 per cent of people who are seeking their records cannot have them?

Ms Mallett —I think what it means is that from the applications that we receive—

CHAIR —So, of known—

Ms Mallett —Of known, yes. So we cannot fulfil their request in terms of—

CHAIR —So the only way by which you know you do not have their records is if they ask for them?

Ms Mallett —Yes.

CHAIR —So it is unknown.

Ms Mallett —It is an invidious situation really because of past practice.

CHAIR —So there is absolutely no way of knowing how many records have been destroyed? So they did not even have a destruction list? Under the archives act there used to be a little note saying this many records had been destroyed. So there is not even data of that nature available?

Ms Mallett —Not to my knowledge.

CHAIR —One of the things that we consistently struggle with in this discussion is numbers in terms of how many kids were in care, for which figures are quoted far and wide. New South Wales would have the largest numbers simply on the basis of population. So if there were a systematic destruction of records, were they records of only state based organisations or were they all records of any child who was a state ward?

Ms Mallett —I am not sure that I follow the distinction.

CHAIR —We know for sure that not all children in care were state wards.

Ms Mallett —That is right.

CHAIR —So we would expect that on record somewhere there would be a statement to say, ‘I am a state ward so that would be a record that was created about me.’ If things were destroyed I would expect that to be one of the state things that were destroyed. But if they were state run homes, of which we know there were many more in New South Wales than anywhere else, it would probably be the case that not every child in those facilities were state wards. So, if the data from the home was destroyed, it would not just be the cross-matching as if I were a state ward. We have had evidence in other states of a family of five children, three of whom were state wards and two were not but they were all in care. In terms of trying to grapple with the data, was is the information about who was a state ward that was destroyed or the information that Acme home that was destroyed or both? I put that on record because it is part of that ongoing debate about data.

Ms Mallett —I am not clear about what processes were in place and whether it was even active destruction or just that things were not kept accurately

CHAIR —Sure. We had evidence from Scarba today, which did take a lot of state wards and others into their care, that there are no records before 1960-something. There are just none at all.

Ms Mallett —I am not aware of what the legislation was in that period of time, but while the home may have been known as a state run organisation the actual day-to-day rules around how it was run and what records were kept were actually the responsibility of the people in charge of the home. There may not have been a coherent system throughout New South Wales prior to 1960 around what ought to happen to the records in each single one of those homes.

CHAIR —Can you say with authority what years have been destroyed?

Ms Mallett —No, I would not be able to say with authority.

CHAIR —So the New South Wales state archive would have a process, and your evidence is that they routinely destroyed records throughout much of the 20th century. I know you are not from the archive but I know this is an issue that would take up a considerable amount of time and consideration in your department. Was there a date when a line was drawn and they said, ‘From now on we are not going to destroy any state ward evidence?’ Was there a piece of legislation or an administrative order?

Ms Mallett —I think that would rely on two pieces of legislation. One is the State Records Act. That is not my area of expertise and it is not a piece of legislation that—

CHAIR —You read regularly?

Ms Mallett —No.

CHAIR —I understand that totally.

Ms Mallett —The other is the care and protection act. It used to be known as the child welfare act, I think, in 1939. Then there was the care and protection act in 1987, and then the Children and Young Persons (Care and Protection) Act in 1998. The most recent amendments to that legislation in relation to state wards was to regard those records of the children that were in the direct care of not only the department but also all designated agencies now in New South Wales as state records. The agencies are taking responsibility for holding them for a period of seven years and then transferring them to the state archives. So as recently as 2000 when that legislation was passed by both houses of parliament, there was a concerted view by both houses of parliament about the enduring importance of that information for not only the individuals concerned but other people in their families as children aged and passed out of care. Because I did not work under that administration, I am not familiar with what the 1987 act says about state records or records of children in care.

CHAIR —So we can feel relatively safe from 2000?

Ms Mallett —Yes. From the passing of that legislation I think there has been recognition that it is absolutely important to hold those records for a child’s benefit to give them a sense of continuity and understanding of what occurs during their period of time in care.

CHAIR —I know Senator Fifield—

Ms Mallett —Hopefully, that is done in regular day-to-day work with those children and not left until they leave care.

CHAIR —Hopefully, under the issue of children in care, people are now given information about their right to own their own records when they are in care and given support through that process.

Ms Mallett —Yes.

CHAIR —That was not there for many people in the past. If I ask for a record and there are no records, what response do I get? You said in the submission that you cannot find a record for approximately 16 per cent of those people who come and ask for something. How is that explained? If I say that I believe I was a state ward, you might not even know. Some of the data we have is that people at different times of their lives come to an understanding and need to know this stuff. It can be many years later, in some cases, that they actually front up and say, ‘I know I was in a home for this period. I’m trying to find out more about my background. Can I get hold of a record?’ They put in a search request, someone goes away to find out and they do not find anything. How is that information given?

Ms Mallett —On a practical day-to-day level, I could not vouch for how that piece of information is directly communicated. What I would hope is that the officer communicating that information would explain that they have searched all available records, that unfortunately they cannot find one and that there may not be one, for reasons such as a record may not have been kept, the home closed down and they transferred the records somewhere else, so there may be a lead to follow, or, unfortunately, the record was destroyed because of the way things happened in the past.

CHAIR —In which department is the officer who would be giving that information based? Is it the job of the archives officer or the job of the officer in the state community affairs department?

Ms Mallett —It would depend, I think, on how long you are going back, but I suppose the further away it gets from a current experience of being in care the more likely it is to be back in the archives office.

CHAIR —As part of the response to the first inquiry, that whole records stuff was monumental. Is there a protocol or some guidelines, or a big red flag on the computer, about how to treat a care leaver who identifies as a care leaver, when they come to the department to find their records?

Ms Mallett —Because the application generally comes centrally, it is generally dealt with by people who deal with these matters on a day-to-day basis. Our computer records about individual children in care in the past only go back to about 2000, and that has to do with the history of technology. I do not know whether there is a document that says you must deal with this in a particular way but, because those people deal with applications for information of a personal nature on a day-to-day basis and because they work in our department and are fully aware that the experiences of being in care can be, potentially, good or bad, I think they would be mindful of how they sit down and speak with someone around a very sensitive issue like this.

Senator FIFIELD —One of the witnesses this morning referred the committee to the history of medical research using welfare children in perfecting the practice of lumbar puncture and small pox inoculations, which I am sure we would all agree was regrettable and that children in state care would be better treated than that today. The witness also mentioned—and I do not know whether this is still the case—that if children in state care befell a misfortune, the presumption was that their organs could be donated; they could be harvested. Can you update the committee as to what the current status is in relation to organ donation for kids in state care? I understand, again from our witness this morning, that the Human Tissue Amendment (Children in Care of State) Bill 2008 is still before the parliament. What changes does this bill propose to make?

Ms Mallett —If it is still before parliament then no change has been made in relation to what currently exists. If a child in care is under the parental responsibility of the minister, then any decisions that need to be made of such a monumental nature are reserved for a very senior officer in the department to make. They include matters of, for example, a child travelling overseas—so a child obtaining a passport. In that particular instance, we are concerned that children are potentially being taken overseas and are remaining overseas. One of the other reasons that reserves a very high officer level delegation is around children getting married. The third, from memory, is around any kind of medical treatment or intervention of the nature to which you are referring. To my knowledge, organs would not be removed nor any decisions made about a child’s potentially imminent death if they were in hospital, without referral possibly to the director-general and, indeed, to the minister, because of the serious nature which you are talking about, Senator.

Senator FIFIELD —So, under the law as it currently stands, there is no presumption that a child has not made an objection to organ donation. It is referred to a senior officer for determination as to what happens?

Ms Mallett —Because of the minister’s legal responsibility in respect of children who are under her parental responsibility, it would need to be considered by three officers—probably the Deputy Director-General (Operations), the Director-General and, potentially, the minister herself—in discussion of those kinds of very serious matters.

Senator FIFIELD —So there is no assumption made—

Ms Mallett —That the child has given consent?

Senator FIFIELD —Correct.

Ms Mallett —Consent can only be given by children at law of at certain ages to particular matters. I understand the law is quite clear about that. But, for children who are in care because they are in the parental responsibility of the minister, there are, I think, additional safeguards that apply in relation to those children.

Senator FIFIELD —Are you able to take that on notice and provide the committee with what the safeguards are and what the various steps are?

Ms Mallett —Certainly.

CHAIR —The submission that spells it all out is on the public record.

Senator FIFIELD —Indeed. So you can reference submission No. 5 from the positive justice centre, which makes reference to these matters. Also, if you are not able to tell us now, can you take on notice what changes the Human Tissue Amendment (Children in Care of State) Bill seeks to make to the current situation?

CHAIR —I have some questions about funding. There are a bunch of them, so you may not have the answers here. In evidence today we heard that the ARC funding has now been extended for another 12 months. Is the current funding for organisations such as these for them to be on a 12-month cycle?

Ms Mallett —There are a range of funding arrangements in the department. Some organisations who are running early intervention programs have been moved on to what we call performance based contracts, but in the main most organisations that are funded by the Department of Community Services are on 12-monthly renewable funding cycles.

CHAIR —This committee hears regular evidence at a range of hearings about the pressure of a 12-month funding cycle and the lack of response it allows any organisation, and I am sure you are not unfamiliar with those arguments. But it just seems to be a very insecure and unsatisfactory way of funding. We know that ARC has 12 months more. Do they then have to reapply? Is there a reapplication method each time?

Ms Mallett —There is an annual process they make, like all organisations, on the 12-monthly cycle and annual return. Generally speaking, unless there are serious concerns, such as, for example, fraud, misappropriation of funds or other allegations that would need to be investigated by the police of inappropriate behaviour towards clients, the funding of most organisations is rolled over on the receipt of the return.

CHAIR —As an ex public servant I know the dangers of relying on rollover funding. We consistently gave advice to our clients that you can never be sure. There are many media stories about places that closed. But, specifically speaking, their funding is on a 12 months basis—then do they have to reapply within the same program?

Ms Mallett —Yes. Justice Wood also brought matters to our attention during a recent inquiry that he conducted into child protection in New South Wales in relation to funding. The government’s has put on the record that it is serious about taking a look at funding arrangements in New South Wales.

CHAIR —And the CLAN funding is for two years from March 2008?

Ms Mallett —I will have to check with my funding colleague—

CHAIR —Sure. I think you actually said that in your submission that it was two-year funding from March 2008. It is the same thing. They are being funded under a certain program and it is not a pilot or a one-off; it is regular funding for two years at this stage and then they would have to reclaim.

Ms Mallett —Yes.

CHAIR —We heard evidence today about a particular process involving a seminar process of workshopping called ‘the healing process’ that was particularly for this group of people. It focused on them and was produced for them. I imagine it was seen as a pilot or one-off funding for one event and it has not received any further funding for that area. Was that under the same bucket? Is there a particular funding bucket that is for care leavers?

Ms Mallett —Is there a particular funding program in New South Wales? No, there is not. For the funding programs in New South Wales, the Department of Community Services has it regularly reported in its annual report the amounts organisations receive.

CHAIR —So it comes under another wider program?

Ms Mallett —Yes. The out-of-home-care funding is allocated in a range of ways to run services that provide care for children.

CHAIR —Will the foster care funding come under that one program?

Ms Mallett —I think the funding of foster care comes under that program, but it could potentially come under another funding program. I would actually have to have the amount and the name of the organisation to be able to then—

CHAIR —We have asked them for that information as well. We only got the general—

Ms Mallett —That would be helpful because that would then enable me to find for the inquiry the specific program that the funding comes from. But generally, funding for out-of-home-care activities and services comes from an out-of-home-care funding budget.

CHAIR —So in your department there is no particular allocation for care leavers in your budget? They would all be subsets of something else?

Ms Mallett —For example, a care leaver may come to a community services centre. There are what we call ‘contingencies’ that can be paid to meet immediate needs of care leavers. We have ministerial guidelines around how money can be administered for care leavers in conjunction with the Commonwealth transition to independent living allowance.

CHAIR —But that is not specifically for this group that have come to be called the forgotten Australians?

Ms Mallett —Not for older Australians, no.

CHAIR —I am looking particularly at whether the New South Wales budgeting process, which would mainly be your department, would have any program funding that is particularly identified for older care leavers.

Ms Mallett —For organisations that support them, yes—for example, I referred to the care leavers and ARC and Relationships Australia—but in terms of providing money to an individual, not to my knowledge, no.

CHAIR —Has your department received any formal complaints from care leavers about the form of the apology? Is there anything on record? We have had significant complaints about the process of the original apology in New South Wales. I am interested to see whether any of those complaints were translated into a formal complaint through the department.

Ms Mallett —I would have to ask.

CHAIR —I would expect that.

Ms Mallett —There is a complaints section in our department, so they may have received either a phone call or a letter.

CHAIR —I am always interested to look at the formal processes there.

Ms Mallett —Individuals sometimes transmit complaints in the form of correspondence to the minister or to the director-general, so that would obviously involve quite a broad search of anything that we would have received in relation to the minister going back nearly three years.

CHAIR —Yes, it is just that it came up in a large number of the submissions received from New South Wales. There were comments about their dissatisfaction with the way the apology was handled in New South Wales. That was not reflected in any other state in terms of people’s response to the first recommendation about an apology and in the discussion about whether there should be a national one. There was a significant number of complaints about the New South Wales process, and I thought I should see whether there had been any formal complaints. In your response about the monument, it says:

The Department is planning for a ceremonial unveiling of the memorial in early 2009

Do we have a date?

Ms Mallett —What we are trying to bring together is a range of stakeholders, and that includes various dignitaries and obviously care leavers. At the moment we are in the process of trying to line up everybody’s diaries. It is quite literally a challenging task because of the range of—

CHAIR —It is always very difficult to do that. One of the issues that has come up is that, while there is a range of organisations that work with care leavers in terms of advising and letting people know what is going on, it is not just one group or one process. One of the complaints about the apology was that it did not engage with people who were care leavers, or invite them to the place. We had a complaint in Victoria, to be fair, about their apology in that they had a very large marquee outside their Parliament House and that of the more than 250 people who were invited to be a part of the apology, a lot of them were in the marquee outside rather than in Parliament House. The complaint about the process of the New South Wales apology, as presented to this committee—I was not there—was that there was only a couple of people who knew it was even going to happen, so there was not that engagement with a wide group. In your submission, you particularly talked of a link with care leaver organisations, including CLAN, and past providers of institutional care that other people were involved with as well. I think that is it. Thank you very much.

We have had a document passed to us from Bonney Djuric, which is 14 years of hell: an anthology of the Hay Girls Institution 1961-1974. Thank you very much for passing this through to us. It will certainly be on record, and I will read this with interest. We have Bonney’s card here as well, so thank you very much for that piece of evidence.

Tomorrow we meet in Canberra and we start hearings there at nine o’clock. I thank all of the participants and the people who have sat through today, and I see a few of you sat here all day. We appreciate that interest and it makes the committee feel as though there is genuine interest in the inquiry.

Committee adjourned at 5.06 pm