Commissioner for Children and Young People Bill

Second Reading

Adjourned debate on second reading.

(Continued from 25 September 2014.)

Ms SANDERSON (Adelaide) (10:56): I rise as the shadow minister for families and child protection to support the Commissioner for Children and Young People Bill that has passed from the other place. This bill is to establish a commissioner for children and young people who is independent of government and has investigative powers.

I would like to take the opportunity to commend the Hon. Stephen Wade in the other place for introducing this bill so quickly after being appointed as the shadow minister for child protection at that time. This is something that was first recommended to the government way back in 2003 by the Hon. Robyn Layton QC; it has taken the government 11 years to act on.

The Liberal Party has taken the lead on this issue, taking to the 2014 election a policy, 'Protecting our children: restructuring the education department', that included a children's commissioner. Our policy included an independent commissioner for children and young people that had investigative powers. Our children are our future and they deserve the best start in life they can get. The Hon. Stephen Wade summarised the bill quite effectively in saying:

The children and young people of South Australia deserve every opportunity to fulfil their potential and strive for their dreams. Every child has the right to a safe, loving environment in which to grow. Families, government and the wider community need to work together to ensure that children and young people are given the best possible chance in life. The bill seeks to do this by promoting the wellbeing of children through the establishment of a Commissioner for Children and Young People.

Under the Liberal bill, the commissioner:

will be the voice of all children and young people in this state;

will promote the United Nations Convention on the Rights of the Child in all areas of community life;

will monitor the decisions of government and non-government agencies in terms of their inclusiveness in considering the rights and interests of children and young people;

will conduct ongoing research and provide suggestions to government about ways to strengthen the rights of children and young people in South Australia;

will ensure that all agencies of government that deal with children are implementing and following best practice policies on child protection matters;

will have full investigative powers to be a truly independent statutory officer; and

will produce an annual report and be fully accountable to parliament.

The requirement for a children's commissioner in our state has been identified in numerous reports commissioned by this government: in 2003, the Layton report, 'A state plan to protect and advance the interests of children'; in 2004, the Mullighan inquiry into children in state care; and a later Mullighan inquiry into children on the APY lands. In 2007, the Legislative Council appointed a select committee to examine and report on Families SA. In 2013, Mr Bruce Debelle QC handed down his independent education inquiry, and now there is the latest royal commission, appointed this year, on the safety and welfare of children at risk.

These reports have shown the requirement for change and the diabolical state of Families SA. I truly wonder how many children and the lives of their families could have been changed if the government had not failed to act 11 years ago. If it had implemented the recommendation that it acknowledged and agreed on, how many children would have been spared the harm we have witnessed through our newspapers over the last number of years?

The government commissioned the Layton report, it agreed with the Layton report, and it failed to act for 11 years. This government has failed these children. The failings of this department and its failure to even investigate have been highlighted countless times over the years. It is most definitely time for action.

In 2012 the Labor government released a discussion paper on the child development legislation proposing an advisory council and formal community network, and in 2013 it released a draft bill. Neither the discussion paper nor the draft bill provided for a commissioner. The response to consultation was so strong in favour of a commissioner that a revised bill was released in October 2013 providing for a commissioner albeit a watered down version of a commissioner.

I think at this point in time it would be beneficial to highlight why Labor's proposal for a commissioner is inadequate which is addressed in the bill. Firstly, the commissioner, as outlined by Labor, will not be independent despite its reassurances that it is. The Law Society has criticised Labor's commissioner model saying that the role, as defined, lacks independence from government and the resources required to guarantee that independence. To be effective the commissioner must be independent, and this should be expressly provided for.

Stakeholders and child protection experts see Labor's proposal as inadequate as it lacks investigative powers. This was wonderfully put by John White, former president of the South Australian Law Society, who said:

What is the commissioner really going to do? If South Australia wants an effective advocate for children, and not just another department, it is time to look at the fundamentals of an independent commission. It is critical that the commissioner be independent of government. This ought to be beyond argument…the method of appointment must be transparent…it is essential that legislation clearly sets out the commissioner's functions and duties, status, powers and method of appointment.

There have been numerous child protection incidents in South Australia that are horrific and very disturbing. These matters highlight that the risk to children and young people will increase when the government fails to put in place appropriate processes to ensure transparency in the protection of young people.

The minister may say that since the Layton report the Child Death and Serious Injury Review Committee has been established, and it certainly has. However, this committee has limited powers to investigate. It cannot interview; it can only use existing documentation; it reports directly to the minister; it is exempt from FOI; and the child has to die or be seriously injured before it could take up the case. The minister has also established the Guardian for Children and Young People. However, that only applies to children in care.

We need a commissioner who has the power to intervene, to investigate, to penalise, and to properly be resourced; a commissioner who is independent of government, and who can truly get to the bottom of all of the issues going on in child protection. The children and young people of South Australia deserve the best level of care possible and the best form of commissioner.

I conclude by thanking all of the people who have provided me and the Liberal Party with feedback regarding this bill. In particular, I would like to thank the Law Society, YACSA and Save the Children for their feedback. I commend the bill to the house.

The Hon. J.M. RANKINE (Wright—Minister for Education and Child Development) (11:03): The bill before the house is solely concerned with the creation of a children's commissioner. That said, the creation of such a position is supported by the government and that is why we have introduced legislation into this house. It has been passed, and is now being dealt with in another place. What is opposed, however, is the narrow-minded and punitive way in which the opposition seeks to do this.

This bill contains extensive and detailed provision of investigative powers by the commissioner in relation to complaints and other investigations, including for individual matters. Although there is some qualification of the commissioner's legal mandate to investigate, the bill provides for investigators with extensive powers to investigate and significant penalties for a range of offences.

The Layton report, in recommending a South Australian commissioner for children and young people, specifically excluded the functions of deciding individual complaints and grievances from the functions of a commissioner.

The Leader of the Opposition, when he spoke in support of this bill, mentioned that commissioners in other states have been granted individual investigative powers. What he failed to mention was that where these powers do exist they are in the process of being removed. No jurisdiction in Australia will exercise individual investigative powers for their commissioners or commissions. Queensland will be the last jurisdiction to remove these functions later this year.

At a time when all Australian jurisdictions are moving away from a model where their children's commissioner exercises individual investigative powers, or will do so shortly, the opposition is proposing legislation with incredibly far-reaching powers—a quasi ICAC commissioner. By contrast, the government proposes to create the position of a commissioner as part of a broader context of entrenching the fundamental importance of children and their wellbeing.

I have previously reflected upon the significant achievements of this Labor government in reforming how South Australia approaches early childhood development. Our record speaks volumes about the emphasis we place not only on the welfare of children in our state but also on their wellbeing. South Australia has long been recognised as a leader in this field. Since 2002, we have sought to bring children to the centre of what we do. We have invested billions in infrastructure for children and their families. We have increased funding to our funding to our child protection system from a paltry $90 million in 2002 to $325 million in 2014.

South Australia is the only jurisdiction to sign a memorandum of understanding with UNICEF to further develop child-friendly initiatives that seek to define, continuously monitor, measure and improve outcomes for children, young people and their families. This achievement comes after a decade of work to give every chance to every child, and helps to build the foundation for the coming decade and beyond. Research tells us that the care and support we provide for children in their early years makes a difference that lasts a lifetime, not only in terms of positive outcomes for them as individuals and for society, but also in economic terms.

This is the work we believe should be enshrined in legislation. While individual cases may have suddenly sent those opposite diving for a punitive instrument with which to respond, we on this side of the house have been working extensively with the community to develop legislation that does achieve these aims—legislation that seeks to look beyond what is done wrong, to try and ensure more what is done right.

There is no question that things do go wrong, and when they do there should be avenues to examine individual cases. These avenues exist. We have complaints and investigative mechanisms available across all areas of government. There is no need, at great cost to the South Australian taxpayer, to duplicate these systems with a children's commissioner with individual investigative powers when we already have a Health and Community Complaints Commissioner; the Guardian for Children and Young People; the Ombudsman; Independent Commissioner Against Corruption; obviously, our South Australian police force; the Commissioner for Public Sector Employment; and the Police Ombudsman, to name a few.

The legislation this government has passed in this house and now to be considered in the Legislative Council provides the commission with powers to investigate—investigate issues identified as systemic or in the interest of all children. Our model ensure independence. It was surprising that the Leader of the Opposition who, as he put it himself, 'did not get into politics for the social issues', was the sole speaker the last time the bill was put before the house, and I am pleased to see that the member for Adelaide has finally had her turn; she was told to sit down last time she tried to speak on this bill.

Members interjecting:

The Hon. J.M. RANKINE: You didn't let your own minister speak.

The DEPUTY SPEAKER: Order!

Ms Chapman: That is shameful.

The Hon. J.M. RANKINE: That's the truth.

The DEPUTY SPEAKER: Order!

Members interjecting:

The Hon. J.M. RANKINE: It is shameful!

The DEPUTY SPEAKER: Order! Sit down.

Members interjecting:

The Hon. J.M. RANKINE: I agree!

The DEPUTY SPEAKER: Order, members on my left and on my right! Standing order 144: the house is to maintain decorum and dignity. This is not decorum and dignity. Members are not to interject. Please cooperate in maintaining the dignity of the house. I call the minister.

The Hon. J.M. RANKINE: Thank you, Deputy Speaker. I agree it was shameful and I think—

Members interjecting:

The DEPUTY SPEAKER: No need. Order!

The Hon. J.M. RANKINE: I think the member for Adelaide—

An honourable member interjecting:

The DEPUTY SPEAKER: Order!

Mr GARDNER: Point of order.

The DEPUTY SPEAKER: What is your point of order?

Mr GARDNER: It is No.137.3, the minister is refusing to accept the authority of the Chair.

The DEPUTY SPEAKER: Well, you are too. I am asking the minister to continue.

Mr GARDNER: That was a reasonable point of order.

The DEPUTY SPEAKER: Yes, well, I do not want anyone making points of order. I just want you back to debate, on topic, so that everyone can hear what you are saying.

The Hon. J.M. RANKINE: Thank you, Deputy Speaker. I was about to commend the member for Adelaide because I think she has a genuine care and concern for children. I am sorry that the member for Morialta has a problem with that, but never mind.

The DEPUTY SPEAKER: He does not have a problem.

The Hon. J.M. RANKINE: I do think it is important that when you have a shadow spokesperson—

An honourable member interjecting:

The DEPUTY SPEAKER: Order!

The Hon. J.M. RANKINE: —you allow them the opportunity to be able to speak—

Mr Gardner interjecting:

The DEPUTY SPEAKER: Order! You are warned.

The Hon. J.M. RANKINE: This bill is a blunt instrument that will do little to improve the lives—

Mr PENGILLY: Madam Deputy Speaker, point of order.

The DEPUTY SPEAKER: You have a point of order that is not frivolous, member for Finniss?

Mr PENGILLY: Well, given that you—

Members interjecting:

The DEPUTY SPEAKER: Order!

Mr PENGILLY: Madam Deputy Speaker, you said, 'You are warned.' You did not identify who. It could be any one of us. I am asking which member was warned.

The DEPUTY SPEAKER: I think I said, 'You'll be warned.' It does not matter. The minister is on her feet, aren't you, minister?

The Hon. J.M. RANKINE: Thank you, Deputy Speaker—

Members interjecting:

The DEPUTY SPEAKER: Order!

The Hon. J.M. RANKINE: This bill is a blunt instrument that will do little to improve the lives of more than some children. This government believes that we should not just look backwards but also forward, and aim to improve the way in which we as a community approach the care of all children and how we engage with them as citizens to ensure that they have the best possible start in life.

The bill before the house does no more than seek to lay blame when things go wrong. Perhaps if the opposition had cared to consult as widely as the government has in the preparation of our bill, they too would have received the overwhelming support not only for powers to punish those who do wrong by children but for us all to do right by them.

The DEPUTY SPEAKER: Leader, if you speak, you close the debate.

Mr MARSHALL (Dunstan—Leader of the Opposition) (11:12): I would like to thank all speakers on this bill, those who have spoken in this house and those who have spoken in the other place. I particularly want to acknowledge the work of Stephen Wade in the other place and the shadow minister Rachel Sanderson, the member for Adelaide in this chamber, for their contribution to and support for this very important bill which is before the house at the moment.

There is no doubt that there is a huge amount of public interest in the area of child protection here in South Australia at the moment. There is no doubt that people on both sides of this house, and in fact throughout the entire parliament, need to do everything we possibly can to make sure that those people who are most vulnerable are protected. We have fallen well short of best practice in this area, and this has been acknowledged by many people right across South Australia.

From our perspective on this side of the house, we have put forward positive plans to improve child protection here in South Australia. Part of it, of course, is the bill before the house at the moment, this bill to establish a commissioner for children and young people. More than that, the Liberal Party has been out there saying it is important to separate our child protection from the education department. This failed experiment is no longer supported by people working within the education department, with principals, with the AEU, the Primary Principals Association and a range of other very significant stakeholders in South Australia. The experiment has failed and the government needs to take action now, not after a royal commission, not two, three or four years down the track, but right now.

We have also said on this side of the house that we want a separate stand-alone agency, not subsumed into another department here in South Australia, but a dedicated agency—

The Hon. J.M. RANKINE: Point of order, Madam Deputy Speaker. The construct of Families SA and the Department for Education and Child Development has absolutely nothing to do with the establishment of a commissioner for children, nothing to do with this legislation.

The DEPUTY SPEAKER: Leader.

Mr MARSHALL: So, this is a very important plan for us. We have also said that child protection is such an important area at the moment that we need to have a dedicated cabinet minister in this area, a cabinet minister who has no other responsibilities but to get this important area of child protection right. More than that, we have a select committee in the other place looking at Families SA. This is not a witch-hunt. This is a hardworking, genuine select committee chaired by the Hon. Stephen Wade, not to score cheap political points but to look at systemic improvements which are so—

The DEPUTY SPEAKER: You have a point of order, minister?

The Hon. J.M. RANKINE: There is nothing in the legislation that bears any relevance to a select committee that is operating in this parliament.

The DEPUTY SPEAKER: You have a further point of order?

Ms CHAPMAN: I rise to speak on the point of order.

The DEPUTY SPEAKER: Your point of order or this point of order?

Ms CHAPMAN: On this point of order. Only to put this to you, Deputy Speaker: during the course of the debate the minister made a contribution outlining the basis upon which she questioned the bona fides of the development of this bill and the justification for it. Accordingly, the circumstances surrounding the development of this bill and the other important initiatives that are being taken are very much the subject matter of this debate and we would hope the minister would listen to it in silence.

The DEPUTY SPEAKER: Leader.

Mr MARSHALL: As I say, the Liberal Party has a very positive agenda to try to improve child protection in South Australia. The number one issue is the establishment of a commissioner for children and young people and one which has the necessary investigative powers so that we can have the right protections in place and so that we can improve our systems and improve them as soon as possible. Of course, this bill has already passed the other place. We introduced this bill in May. It is something which has been before this house. We were very disappointed when the government used its numbers to adjourn this debate off previously.

The minister in her contribution to the house for some reason chose to have a go at the opposition for limiting the number of speakers that we had on this important bill before the house. We do this for a very good reason. I make this point to you, Deputy Speaker, and to the parliament in general: at the moment it is the Liberal Party that has more legislation on the Notice Paper in this house than the government has. We have more bills, more legislation on the Notice Paper than the government of this state. That is the simple fact of the matter. How long do we get to put our program for positive change and reform in this state? I will tell you: one hour per week. So, of course, we have to limit the contributions which are made by this side so that we can bring our important reforms to a vote. Shamefully, the government has used its numbers to adjourn off the debate.

I hope the Independent members of the cabinet make sure that they allow this to go through to a vote. I was speaking with the grandmother of Chloe Valentine earlier this week and she made an impassioned plea to the South Australian parliament to bring this commissioner into place as soon as possible. I commend the bill to the house and I ask that the vote be put.

The house divided on the second reading:

Ayes 20

Noes 23

Majority 3

Second reading thus negatived.

Honourable members: Shame!

The SPEAKER: The next person who says 'shame' will be ejected from the chamber.