ALECOMM

"Legislation Amendments required for Australian Legislation to comply with the International Covenant of Civil and Political Rights."

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Category: Uncategorised

Written by Alecomm2

“Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice” : Article 19 of UN-CROC

1.     Introduction

Given that Australia has ratified and signed the International Covenant On Civil And Political Rights, and that Article 3 states “The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant”, we hereby state request the following changes in the protection of our most vulnerable assets, our children. Let us see the government show us that children are important to them, and that accountability when it comes to child protection is at the forefront of all their decision making.

2.      Section 106(a) of the Child and Young Persons Act to be deleted

Section 106(a) of the Child and Young Persons Act to be deleted as it is unconstitutional, illegal and violates our basic fundamental human rights including International Covenant On Civil And Political Rights listed and explained below :

Article 14.7 states “No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country”, and

Article 15.1 states “ No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed”.

3.      Equal Legal Aid funding all parties

Legal Aid funding must be automatically granted to all parties forced to be a part of child protection proceedings in Children's Courts and Family Courts. Government funding generally pays for all parties, including Department of Community Services, Independent Child Legal Representation and Legal Aid funded parties, however the Legal Aid funded parties, mainly parents and grandparents are the only persons continually denied the same legal funding as both other parties.

Given that Department of Community Services, whom generally instigate legal proceedings are always funded, however parents have to fight tooth and nail with Legal Aid to get the same funding, often to the detriment of the child.

It is therefore a gross breach of our basic human rights and freedoms not to automatically grant all other parties the same funding and respect, as International Covenant on Civil and Political Rights Article 14 and Article 23 state :

All persons shall be equal before the courts and tribunals”, and

“The family is the natural and fundamental group unit of society and is entitled to protection by society and the State”

Article 26 of the International Covenant on Civil and Political Rights also states :

“All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

4.      Criminal Offences Committed by Department of Community Services Officers

Ombudsman must be forced to send all offences committed under the Crimes Act, Public Service Employees Act, and Child and Young Persons Care and Protection Act 1988, committed by Department of Community Service Officers to the Public Prosecutor for immediate prosecution.

We have annexed a draft copy of a SETONs (Self-enforcing Ticketable Office Notice System), type infringement notice for Officers who commit such offences - where it can be easily shown and proven that the officers have in fact committed an offence. This is very similar to a parking fine. It is plain and simple and has many benefits including:

5.      Monetary penalties

– as applicable to the legislation – for officers not complying with legislation in place to protect our children.

6.      Deterring officers from committing further offences by applying these penalties

Revenue created for the government by persons responsible for wasting government money on litigation bought before the children's courts based on false and malicious reporting, and false and misleading statements by officers of the department of community services.

All penalties must be applied under the Crimes Act 1900, including jail time for false and misleading statements for officers who have committed these offences which also constitute a breach of our fundamental human rights.

The penalties must be enforced by the relative authority, currently Department of Public Prosecutions, in order to comply with the International Covenant of Civil and Political Rights Article 17 which clearly states:

“1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation” and

“2. Everyone has the right to the protection of the law against such interference or attacks”.

Without these penalties being applied, as is the current situation, there is no protection from such interference or attacks - as there are no repercussions for officers of the Department of Community Services breaking the law.

7.      Legal Representation of Department of Community Services Officers

As it seems common practise for the legal representation of Department of Community Service Officers, and Independent Children’s Representatives from both Family Court Systems and Child Protection to continually violate our fundamental human rights, by arguing that because a parent / grandparent has been on a certain website forum (not illegal) – that they are not a good person to be having contact with the child.

Relevant points of the International Covenant on Civil and Political Rights are Article 19, Article 22 and Article 25, and stated hereunder :

“Everyone shall have the right to hold opinions without interference”

“Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice”

“Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests”.

“Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions to take part in the conduct of public affairs, directly or through freely chosen representatives;

To have our Government Funded Legal Practitioners arguing away our basic human rights is not only despicable it is unconstitutional, criminal, and should be punished by law. At minimum, these lawyers / solicitors should have their licenses revoked.

8.      Implementation of Public Anonymous Reporting Register & Penalty System

The design and implementation of an Anonymous Reporting Register to enable persons to file Infringement Notices of Department of Community Services Officers and / or their Legal Representation (refer Section C for details).

Register to retain the following information:

1. i.NSW Children's Court Case Reference
2. ii.DOCs Case Reference
3. iii.Name of officer who has committed offence
4. iv.Offence type : ie False and Misleading Information under Crimes Act, Offence of Perjury under Crimes Act etc (tick a box)
5. v.Date Offence Committed
6. vi.Documentation Supporting Offence (upload file / files in jpg / pdf format)

Data to be directed one of the authorities to issue an automatic Infringement Notice after verification of data.

9.    Children must not to be taken from mothers whom are victims of domestic violence

It is common practise to remove children upon birth and to place them into foster care if a mother has been a victim of domestic violence, sometimes within 20 minutes of birth. The mother may still be haemorrhaging and have the placenta still intact when Midwives let Child Protection Workers into Delivery Suites.

Article 23.1 of the International Covenant on Civil and Political Rights states :

“ The family is the natural and fundamental group unit of society and is entitled to protection by society and the State”.

It is not only a gross breach of the role of Community Services to take children from victims of domestic violence, it is also a breach of our basic and fundamental human rights. This falls in line with the US Determinations that now prevent children from being removed from parents because of domestic violence.

10.   Protection of children from economic exploitation by legal practitioners & foster care agencies

Article 32.1 of the International Covenant on Civil and Political Rights states :

“States Parties recognize the right of the child to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child's education, or to be harmful to the child's health or physical, mental, spiritual, moral or social development”.

Any organisation that is employed by the government to provide both Intervention Services to Vulnerable Families and At Risk Children, and to receive Foster Placements of Children taken by Department of Community Services have a major conflict of interest in services that cannot be ignored.

By getting paid by the government, and consequently failing, to provide Family Intervention Services to the benefit of the family, these organisations profit again by gaining lucrative Foster Placements. State Parties must recognise and amend this immediately so that one organisation cannot be both the bat and the ball.

11.   Relinquishment of all religious organisations with previous child abuse / exploitation history from the child protection industry

Self explanatory.

12.   No child to be adopted without written and signed consent of biological parents

Children must not be allowed to be adopted merely because the state has decided that the child must remain in care until they attain the age of 18. Adoption means adoption, care means care. If foster parents want to adopt children then they can find children that have parents that DO NOT WANT CUSTODY of those children.

13.   Parents to receive all details immediately upon any injury / assault to any child in care

Regardless of whether that child is with the State Child Protection Authority or with an NGO. Too many cases at the moment where children are being hospitalised, sexually assaulted, and even murdered in care are not being made known by the agencies responsible in an effort to cover up the amount of abuse going on in their care.

If parents are informed immediately upon any injury of child, this will help with accountability and keep an eye on the goings on in foster placements which are currently being covered up.

14.   Abolish Statute of Limitations for any child who was removed by the government or any other authority

Self Explanatory. Same required for children who have been abused and or neglected by the systems failure to ensure such protection.

15.   Abolish Statute of Limitations for any parent who had a child removed by the government or any other authority

Self Explanatory. Same required for children who have been abused and or neglected by the systems failure to ensure such protection.

16.   Legal Aid Representatives must be made available in every regional area

Obtaining legal representation in regional areas can be extremely difficult if not plain impossible. Clients may be given grants of Legal Aid funding but cannot get represented unless they travel some 8 hours to cities such as Sydney.

This is caused by Department of Community Services using every possible solicitor, and having independent legal representatives for the children appointed locally also. Everybody knows these solicitors will not give up DoCS jobs to represent a client, and this therefore – A LOT OF TIME – particularly in regional areas such as Cowra to Cootamundra, there is no legal representation available for the parents.

Legal Aid funding does not cover parents travel etc and puts any DoCS opposition at an automatic disadvantage in having their matter dealt with fairly and with procedural fairness.

The only solution to this matter is to have DoCS Solicitors working from the offices fulltime so DoCS cannot chop and change their legal representatives to prevent parents having a fair court hearing.

Also note that Legal Aid is very much aware of these common situations, yet refuse to provide any sort of assistance to parents, or any solution.

17.   Interstate kidnapping by child protection agencies

Few cases we have involve child protection from another state keeping a child and placing them under orders in their state, knowing full well that the child / children belong to another state and that child protection agencies in that state are full aware.

Difficulty is that child protection refuse to assist the parents as they just cannot be bothered, completely disregarding the fact that they have approved placements of children with family members in their state prior.

State child protection authorities must be compelled to provide paperwork and assist children be returned to their natural family under these circumstances.

18.   Revision of Supression and Gag Orders in Child Protection Matters

Law states ….

19.   Repeal Division 3A of the Children (Criminal Proceedings) Act and Section 105

Division 3A of the Children (Criminal Proceedings) Act and Section 105 of the Children and Young Persons (Care and Protection) Act need to be amended so that parents or caregivers have the right publicly discuss the welfare of children in their care if they believe the Child protection System has caused harm to their children.

20.   Mandatory use of legislation for making false Risk of Harm reports, which are consequently used to justify removal of children

..

Crimes Act 1900 – Section 93Q States “Conveying false information that a person or property is in danger

1. A personwho conveys information:This section extends to conveying information by any means including making a statement, sending a document, or transmitting an electronic or other message.
   1. that the person knows to be false or misleading, and
   2. that is likely to make the person to whom the information is conveyed fear for the safety of a person or of property, or both, is guilty of an offence.
      Maximum penalty: Imprisonment for 5 years.
3. In this section, a reference to the safety of a person includes the safety of the person who conveys the information and the person to whom it is conveyed.

As it is an indictable offence of Kidnapping under the Crimes Act to remove a child Crimes Act 1900 – Section 307C False or misleading documents – also exists to further ensure that persons do not submit false and misleading information in documents produced in compliance or purported compliance with a law of the State.

21.   Protection from liability laws to be revoked

22.   Children And Young Persons (Care And Protection) Act 1998 - Sect 245G Protection from liability for providing information states:

“(1) This section applies if a person, acting in good faith, provides any information in accordance with this Chapter.

(2) Any such person is not liable to any civil or criminal action, or any disciplinary action, for providing the information.

(3) In providing the information, the person cannot be held to have breached any code of professional etiquette or ethics or departed from any accepted standards of professional conduct. “

This makes it impossible to determine whether or not a risk of harm is of actual value or has been provided for other reasons such as negligence, monetary value or inability to properly determine an issue.

Mothers are having newborns taken from the labour room after, for example, a mother, who has never had any dealings with authorities, told her newborn baby that her father wishes he was able to be there, and was “looking” over her etc, as the father had recently died of a brain tumour and was not able to see the birth of his daughter.

Alecomm is certain there would not be a parent out there who hasn’t referred to a deceased loved one to their children at one time or another, yet this nurse rang DoCS and reported the mother for multiple risk of harms stating that she was homicidal and suicidal. (Ref: Taylah Case). DoCS Workers then took the baby and are telling the mother she has to do a mountain of courses and may get her baby back in 12 months or so. Meanwhile untold damage is being done to both mother and child. Revoking Protection from Liability is necessary to prevent these extremely common actions.

This amendment ensures that all persons comply with Section 253 of the Child and Young Persons (Care and Protection) Act 1988.

This amendment further ensures complying with the Crimes Act 1900 Section 4B (Dishonesty), Section 4A (Recklessness), Section 44 Failure of persons to provide necessities of life, Section 61 Common assault prosecuted by indictment,93Q Conveying false information that a person or property is in danger (which carries a penalty of up to 5 years imprisonment), 192D Obtaining financial advantage or causing financial disadvantage, and Crimes Act 1900 – Section 307C False or misleading documents.

23.   Amendment to Criminal Procedure Code Act 1986 - Sect 32 – Indemnities

This section needs to be repealed as it is discriminatory against all other parties involved in matters pertaining to public official corruption.

1. a.The Attorney General may, if of the opinion that it is appropriate to do so, grant a person an indemnity from prosecution (whether on indictment or summarily):If the Attorney General grants such an indemnity, no proceedings may thereafter be instituted or continued against the person in respect of the offence or the acts or omissions.
   1. or a specified offence, or
   2. in respect of specified acts or omissions.
3. Such an indemnity may be granted conditionally or unconditionally.
4. Such an indemnity may not be granted in respect of a summary offence that is not a prescribed summary offence, unless the Attorney General has consulted the Minister administering the enactment or instrument under which the offence is created.

24.   Need for realistic representation of parents and children in court proceedings

There seems to be an exceptional difference when it comes to the type of representation received by the Department of Community Services, as compared to parents, carers and children. Unless of course, the department supports the applicable carer.

Despite the fact that our fundamental human rights (article 7 states : “All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination” …

25.   Time Frames for Restoration Plans must include Dates of Requirements

26.   Solicitors who represent children / parents must be given formal warnings if they fail to ensure that care plans are created within six months for newborn babies.

27.   Limit on amount of newborn babies a foster carer may have in their care

1. Evidence shows that some foster carers have WAY too many children in their care and that there should be similar assessment requirements at Queen Elizabeth Clinics to determine capability of these designated carers. EG : A current foster carer on the Central Coast NSW has in her care, 5 newborn babies, 3 toddlers under the age of 2, and 2+ more older children in her care.
2. This equates to the preparation of 30+ meals per day, the changing of approximately 70 nappies per day, at least (possibly) 8 night feeds, bathing of 10 children per day, 8 of which need 24-7 supervision, transportation of of at least (possibly) 3 children once or twice per week, whilst still ensuring that the carer has in their site the other 5 newborn babies.
3. When exactly is there time for this carer to show any of those ten children who have already suffered the trauma of being taken from their family, any love? No child could possibly benefit from this, in fact the only person who could would be the carer receiving their extremely lucrative pay packet each week.
4. Each visit to the parents of two of the children – for 5 MONTHS – one of the children have had extreme to sever nappy rash – INCLUDING THE BLEEDING OF THE TESTES.
5. Each time the children have visited their parents – 2-3 times per week – the children have had faeces on them.
6. Each visit to the parents – the children do not smell of newborn baby, but rather a sweaty smelly child – with constant cradle cap.
7. The only time these children have appeared to be as newborn children should be is when they were in respite for a period of two weeks with an alternative carer.
8. Each time DoCS caseworkers and managers were notified of these negligent actions by the carer, they stated (words to the effect) “all children get happy rash”, and implied that if the parents made anything else of the matter, that there would be consequences.
9. As a point of interest with the first two newborns being referred to in this case, evidence shows that should never have been removed in the first place. Only the most intrusive methods were ever used and there are orders for these children to be returned to theirRestoration Plans are in place and Restoration is all but finalised.
10. It is a requirement under current legislation that Nappy Rash is to be referred under child abuse to the JIRT Team - this is currently not happening with foster carers.  Another case involved an infant girl who was hospitalised twice whilst in the care of the department, for nappy rash.  We understand that child protection workers failed to refer the matter to JIRT on this occasion also.  And subsequently this child was removed prior to intervention, and returned after intrusive investigations.

28.   Automatic Granting of Retrial and Grant of Legal Aid for Cases of False and Misleading Information by DoCS

To ensure a fair and just decision making process there must be transparency and the courts must ensure that all evidence is untainted. Many cases of children being taken are caused by constant use of false and misleading evidence submitted by DoCS Officers to the courts, whereby Legal Aid will not continue to fund a case even if it can be proven that a DoCS Officer has lied and caused the unnecessary removal of a child.

Legal Aid must be applied to all parts of child protection proceedings to parents who are able to prove false and misleading evidence in any part of their proceedings that taints there case and cases must start from the beginning as if the child was still in the care of the parents and not the care of a foster carer. There is to be no mention of whether or not the child is settled, because this issue would not have arisen without removal in the first place.

29.   Amend Section 63 of Child and Young Persons (Care and Protection) Act 1988

Delete : “The Children's Court must not : (a) dismiss a care application in relation to a child or young person, or (b) discharge a child or young person who is in the care responsibility of the Director-General from that care responsibility, by reason only that the Children’s Court is of the opinion that an appropriate alternative action that could have been taken in relation to the child or young person was not considered or taken.”

Amend : “The Children's Court MUST(a) dismiss a care application in relation to a child or young person, or (b) discharge a child or young person who is in the care responsibility of the Director-General from that care responsibility, by reason only that the Children’s Court is of the opinion that an appropriate alternative action that could have been taken in relation to the child or young person was not considered or taken.”

Reason 1.

30.   Amendment to FAMILY LAW ACT 1975 - SECT 60CD - How the views of a child are expressed:

The child must be allowed to speak at his / her court hearing if they so wish. This ensures that International Covenants on Children's Rights are being adhered to, imparticular Article 12 : “1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.”, and “2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.”

31.   Amendment to Commonwealth of Australia - Administrative Order Part 7

The Department of Families, Housing, Community Services and Indigenous Affairs.
In legislation administered by the Minister insert “Children and Young Persons (Care and Protection) Act 1988”

Amendment To Commonwealth Of Australia - Administrative Arrangements Order Part 6

The Department Of Education, Employment And Workplace Relations . In legislation administered by the Minister insert “Children and Young Persons (Care and Protection) Act 1988”.

32.   Children’s Charter of Rights

There is a requirement that within twelve months of the legislation being passed, that all children have a charter of rights. This is wonderful, except nobody supplies it to the children, and they are the ones who need it.

SECTION FOR AMENDING

162   Rights of children and young persons in out-of-home care

       (1) Within 12 months after the commencement of this Chapter, the Minister must prepare a Charter of Rights for all children and young persons in out-of-home care.

       (2) The Minister must promote compliance with the Charter of Rights by all designated agencies and authorised carers.

       (3) Each designated agency and authorised carer has an obligation to uphold the rights conferred by the Charter of Rights.

ADD INTO LEGISLATION :

(4) All children to be supplied with the relevant-to-their-age Children’s Charter of Rights by either DHS workers upon removal of the said children, or by the ICL at the very first meeting. Preferrably by both to ensure that these children understand that the government is serious about enforcing their rights.

33.   Courts to determine access between parents and children

The current practice of courts relinquishing authority to determine the amount of access that a child will have with their parents is open to abuse by authorities.

Child protection workers are given the power to continually change access, or discontinue it without having to provide any decent reasons why they have.

This is a clear power imbalance, and if courts are prepared to determine how much time parents will have in family courts, then they should determine how much access is given in children’s courts. This is to prevent a disgruntled party cancelling contact without reasons or repercussion. It is also in the interest of the children.

If the child protection workers have a valid reason to cancel access then let them put it before a court to have it determined properly as do any other parent and or concerned party. Child protection workers are not above anybody when it comes to the truth, so why should they be afforded that opportunity.

This is to include Supreme Courts who continually make decisions about child protection matters, and then refer one of the most important decisions back to the agency who had the decision appealed against them in the first place.