Children's Protection (Implementation of Coroner's Recommendations) Amendment Bill

Final Stages

The Legislative Council agreed to the bill with the amendments indicated by the following schedule, to which amendments the Legislative Council desires the concurrence of the House of Assembly:

No. 1. Clause 4, page 3, lines 6 and 7 [clause 4, inserted section 3(1)]—

Delete '(and in the administration of this Act that object must, in all cases, be the paramount consideration)' and substitute:

and in the administration of this Act that object must, in all cases, be the paramount consideration

No. 2. Clause 7, page 3, after line 32—

Before the present contents (now to be designated as subclause (2)) insert:

(1) Section 6(1)—after the definition of Department insert:

drug includes alcohol;

No. 3. New clause, page 4, after line 4—Insert:

7A—Insertion of Part 2 Division 4

After section 8D insert:

Division 4—Matters to be included in annual report of Department

8E—Matters to be included in annual report of Department

(1) The annual report of the Department must include the following information in respect of the period covered by the annual report:

(a) information setting out—

(i) the number of applications made under sections 20(1) and 22; and

(ii) the number and general nature of any orders made under the Act in relation to those applications;

(b) information setting out the number and general nature of any orders made under section 21(1)(ab);

(c) information setting out—

(i) the number of applications made under section 37(1) or (1a); and

(ii) the number and general nature of any orders made under the Act in relation to those applications.

(2) This section is in addition to, and does not derogate from, any other requirement under this Act or the Public Sector Act 2009.

No. 4. Clause 9, page 4, after line 16—

After the present contents (now to be designated as subclause (1)) insert:

(2) Section 20(2)—delete subsection (2) and substitute:

(2) Without limiting subsection (1) or (1a), if the Chief Executive is of the opinion that a child is at risk as a result of the abuse of a drug by a parent, guardian or other person, the Chief Executive must apply for an order under subsection (1) directing the parent, guardian or other person to undergo a drug assessment.

(3) However, the Chief Executive need not apply for an order referred to in subsection (2) if he or she is satisfied that—

(a) a drug assessment of the parent, guardian or other person has already occurred, or is occurring (whether pursuant to an application under this section or otherwise); and

(b) that drug assessment is of a kind appropriate for the purposes of this Act; and

(c) the results of the drug assessment have been, or will be, made available to the Chief Executive; and

(d) in the case of a drug assessment that has already occurred—having regard to when the drug assessment occurred, an additional drug assessment under that subsection is not necessary.

No. 5. Clause 13, page 5, after line 1—Insert:

(1) Section 38—before subsection (1) insert:

(a1) The Court may, on an application under this Division, make an order under this section if the Court is satisfied—

(a) that the grounds of the application have been made out; and

(b) that an order under this section should be made in respect of the child.

(2) Section 38(1)—delete 'If the Court finds, on an application under this Division, that the grounds of the application have been made out and that an order under this section should be made in respect of the child, the Court may exercise 1 or more of the following powers' and substitute:

In an order under this section, the Court may exercise 1 or more of the following powers

No. 6. New clause, page 5, after line 5—Insert:

13A—Amendment of section 39—Adjournments

Section 39—before its present contents (now to be designated as subsection (2)) insert:

(1) All proceedings under this Act must be dealt with expeditiously, with due regard to the degree of urgency of each particular case.

No. 7. Clause 14, page 6, lines 19 to 24 [clause 14, inserted section 44B]—

Delete inserted section 44B

No. 8. Clause 14, page 6, line 27 [clause 14, inserted section 44C(1)]—After 'child' insert:

born after the commencement of this subsection

Consideration in committee:

The Hon. J.R. RAU: I move:

That the Legislative Council's amendments be agreed to.

I will be brief in view of the time and the fact that we have obviously been considering this bill for some time. This bill was introduced by the government on 6 May last year in response to the Coroner's recommendations following the inquest into the death of Chloe Valentine. The bill passed the House of Assembly on 2 June 2015 and today has returned from the other place. The bill responds to three recommendations of the Coroner directed to legislative change.

The first one was recommendation 22.11, that the bill introduces a definition of 'cumulative harm' to be considered in the assessment of risk to a child. Secondly, amendment 22.2, that the bill introduces a scheme in which the chief executive can implement instruments of guardianship to remove children of parents who have been convicted of qualifying offences or to restrain people convicted of qualifying offences from residing with children. These offences include murder, manslaughter, criminal neglect, causing serious harm, and acts endangering life or creating risk of serious harm, and include attempts of these offences. These are a slightly broader class of offences than those recommended by the Coroner initially.

Recommendation 22.12 is that the objects of the act have been amended by the bill to make it clear that the paramount consideration—and I must say I know the minister and I regard this as being of particular importance—in the administration of the act is the safety of the child, and that keeping the child with his or her family must obviously be secondary to ensuring the safety of the child.

Amendments made to the bill in the other place and received today go further in addressing the need to protect children from abuse as a result of drug use. The definition of drugs in the act now includes alcohol and is not limited to illicit drugs as it once was. This recognises the reality that a person can place their child at risk as a result of their abuse of legal substances as much as they can by abusing illegal substances.

After lengthy negotiation, I am pleased that agreement was then reached on the amendments to section 20 of the act, being the requirement for a drug assessment to be ordered where there is risk to the child as a result of a person's drug abuse. This amendment provides appropriate boundaries on the discretion of the chief executive in determining whether to apply for a drug assessment but nevertheless retains an element of discretion.

Can I say that I would like to acknowledge the particularly constructive contribution of the Leader of the Opposition, who has been quite happy to engage in discussions. I think his involvement has meant that there has been an improvement in the capacity of the differing points of view held up until that time to be resolved. I extend my appreciation to him for prevailing on less flexible minds, perhaps somewhere else. With those few words, I indicate that we accept the amendments as a whole.

Ms CHAPMAN: I indicate on behalf of the opposition that we will also be accepting the amendments. I thank the members of the Legislative Council for their deliberation and improvement of the bill. What I want to place on the record is this: it does sometimes tragically take circumstances, in this case the death of a little girl, for very serious attention to be given by the Coroner's Court, in this case, Coroner Mark Johns, and then an indication by the government that they will act promptly to remedy some matters which were of their own making.

I want to say that this not to suggest that they are directly responsible for the death of a child. What I am saying is that about 10 years ago we all sat here in this chamber promoting an amendment to the law in respect of child protection to ensure that if there was an excess of drugs or alcohol, particularly illicit drugs, in a household in which a child lived there needed to be a high standard imposed on the authorities responsible for child protection to the extent of identifying it, assessing the risk to the child, and, most importantly, directing that the alleged consumer of drugs or alcohol in the house, or indeed those who were supplying it, would be assessed and tested, and that that was going to be a very important mechanism to ensure we were minimising the risk to children in the household.

So important was that debate that it involved a number of members on both sides of the house, including the now Premier, who was minister. So important was the discussion that it was deemed necessary for there to be a recording of this each year in the annual reports to parliament as to the number of people who had been assessed or cases in which children had been brought to the notice of the chief executive of the then Department for Community Welfare.

Because the closing hours of the parliament were upon us, it was not fully recorded in the text of the statute the obligation to ensure that there be annual reporting with that statistical information. Whilst the now Premier (former minister) came into the parliament and acknowledged the terms of agreement that had been reached—a little hurried as it was to try to pass the legislation at the time—he understood that responsibility and that was the clear understanding: that there would be a recording of that.

Just today, I spoke to the Minister for Education and Child Development who is responsible for providing the annual report in respect of education and matters covering child protection. She confirmed to me that she has received the annual report and that, of course, it will follow the proper process and be brought to the parliament the next time we sit.

I raise this matter for this reason: it is a calendar year report, it has to be tabled in this parliament as soon as practical after the minister of the day receives it and it incorporates that important information. Last year, when we were debating this issue, but in light of the government's commitment to ensure that they would do it in the future, they provided an addendum to last year's report to make sure that that data was made available. It was produced as an addendum letter to the report, so I look forward to receiving this year's report.

We will shortly pass, with an acceptance of these amendments, legislation which will ensure that will be able to be enforced, and I hope that it won't be necessary to have to go through this painstaking exercise of ensuring that the government do what they say they are going to do. In this case, it was not present ministers' responsibility, but the person who was responsible is now the Premier.

When asked in parliament about this issue, the Premier's answer was, 'Well, look, my staff were here when we were debating the bill all those years ago and they knew what to do,' as though he is going to rely on them to go off and make sure that this was attended to. That is just not acceptable, so the current ministers are on notice that we from this side of the house do not accept that level of inattention to a clear obligation. When a minister, or indeed a premier, comes into this house and makes a statement of a commitment that their government is going to do something, we expect them to do it.

In any event, it is now included in legislation. This is just the beginning of the reforms that Coroner Mark Johns said were necessary to ensure that we protect South Australian children in the future, and I look forward to receiving the government's further announcements to ensure that we never have a repeat of the loss of that beautiful little child who is no longer with us, namely Miss Chloe Valentine.

Mr MARSHALL: I would also like to make some final remarks, building on what the deputy leader has said. We are relieved that this piece of legislation has finally been negotiated and will pass this afternoon. Of course, this has taken too long. The final negotiations, which have really occurred in just the last few weeks, should have occurred last year when the hiatus was created. I am grateful to the Attorney-General for taking some responsibility to try to finalise the deadlock which had existed, because this has taken far too long.

We can be comforted by the fact that we will now have this legislation in place, but I would make the point that the previous legislation was in place and ignored by this government, so legislation alone will not be enough. The previous legislation provided that there was a compulsory drug assessment required if the department found out that there was drug use by the parents or the guardians. This was not the practice. It was the law, but it was not the practice.

So, while there can be some comfort that the Coroner's recommendations have finally been implemented, it will not be enough, and we cannot be satisfied with this unless we do everything we can to change the broken culture which exists within this department. The government needs to take this area seriously. They need to remove child protection from the education department. They need to have a single minister responsible for this area, not the current level of confusion.

They need to implement other commitments they have made, in particular, around the establishment of a commissioner for children and young people in South Australia. There is much work to be done, and I would just like to put onto the record that we on this side of the parliament will be doing everything we can to hold the executive to account, not only to pass this legislation but, of course, to implement both the spirit and the letter of this legislation.

Motion carried.