Children and Young People (Safety) 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 8, page 9, after line 34—Insert:

(2a) Without derogating from any other provision of this Act, it is desirable that the connection of children and young people with their biological family be maintained.

No. 2. Clause 12, page 11, after line 9 [clause 12(2)]—Insert:

; and

(c) achieving the objects set out in the preceding paragraphs (as well as reducing the incidence of the removal of Aboriginal and Torres Strait Islander children and young people) by encouraging Aboriginal and Torres Strait Islander people, their children and young people and State authorities to act in partnership when making decisions about the placement of Aboriginal and Torres Strait Islander children and young people under this Act.

No. 3. Clause 14, page 13, lines 26 and 27 [clause 14(1)(c)]—Delete 'and support evidence-based programs delivering preventative and support services directed towards strengthening and supporting families' and substitute:

, support and adequately resource evidence-based programs delivering preventative and support services directed towards strengthening and supporting families, reducing the incidence of child abuse and neglect

No. 4. New clause, page 14, after line 15—Insert:

14A—Additional annual reporting obligations

(1) The Minister must, not later than 30 September in each year, prepare a report—

(a) detailing the role of the Minister, and the extent to which the Minister has performed the Minister's functions, in respect of the operation of this Act for the financial year ending on the preceding 30 June; and

(b) setting out the following information relating to the provision of family support services and intensive family support services to children and young people who are at risk and their families:

(i) the extent to which such services were provided by, or on behalf of, the State (including statistical data relating to the number of times such services were provided) during the financial year ending on the preceding 30 June;

(ii) the amount of resources allocated for the provision of such services by or on behalf of the State—

(A) during the financial year ending on the preceding 30 June; and

(B) during the current financial year;

(iii) the extent to which the allocated resources were, in fact, spent on the provision of such services during the financial year ending on the preceding 30 June;

(iv) bench-marking the resources referred to in subparagraph (ii) and (iii) against those allocated and spent by other States and Territories in the provision of such services during the financial year ending on the preceding 30 June; and

(c) providing any other information required by the regulations for the purposes of this paragraph.

(2) The Minister must, as soon as is reasonably practicable after preparing a report under this section, cause a copy of the report to be published on a website determined by the Minister.

(3) The Minister must, within 6 sitting days after preparing a report under this section, cause a copy of the report to be laid before each House of Parliament.

(4) The requirements of this section are in addition to any other reporting obligation of the Minister.

No. 5. Clause 30, page 25, line 18 [clause 30(1)]—Delete 'in a manner specified by the Minister by notice in the Gazette' and substitute:

in accordance with subsection (3a)

No. 6. Clause 30, page 25, lines 34 and 35 [clause 30(3)]—Delete 'in a manner specified by the Minister for the purposes of subsection (1)' and substitute:

in accordance with subsection (3a)

No. 7. Clause 30, page 25, after line 35—Insert:

(3a) A person reports a suspicion under this section by doing 1 or more of the following:

(a) making a telephone notification to a telephone number determined by the Minister for the purposes of this subsection;

Note—

This telephone line is currently known as the Child Abuse Report Line or CARL.

(b) making an electronic notification on an electronic reporting system determined by the Minister for the purposes of this subsection;

(c) by reporting their suspicion to a person of a class, or occupying a position of a class, specified by the Minister by notice in the Gazette;

(d) reporting their suspicion in any other manner set out in the regulations for the purposes of this paragraph,

and, in each case, providing—

(e) —

(i) in the case of an unborn child—the name and address (if known) of the mother of the unborn child; or

(ii) in any other case—the name and address (if known) of the child or young person; and

(f) information setting out the grounds for the person's suspicion; and

(g) such other information as the person may wish to provide in relation to their suspicion.

No. 8. New clauses, page 28, after line 44—Insert:

35A—Random drug and alcohol testing

(1) This section applies to—

(a) a person who has, in the preceding 5 years, been directed by the Chief Executive to undergo an approved drug and alcohol assessment under section 35(1); or

(b) a person who was, in the preceding 5 years, the subject of an application for an order under section 20(2) of the Children's Protection Act 1993 (whether or not the application was granted); or

(c) any other person of a class declared by the regulations to be included in the ambit of this subsection.

(2) A person to whom this section applies must, in accordance with the scheme set out in the regulations, take part in random drug and alcohol testing.

(3) Without limiting any other regulations that may be made in relation to the scheme for random drug and alcohol testing, the regulations must include provisions—

(a) authorising the taking of forensic material consisting of hair or blood for the purposes of this Act; and

(b) requiring such forensic material to be tested to identify any drug or alcohol that may be present in the material; and

(c) requiring or authorising the results of such testing to be provided to the Chief Executive or other specified person or body.

(4) The Chief Executive may, in relation to random drug and alcohol testing under this section, by notice in writing, require a person to whom this section applies to take the action, and within the period, specified in the notice.

(5) A person to whom this section applies must not, without reasonable excuse, refuse or fail to comply with a requirement under this section.

Maximum penalty: Imprisonment for 6 months.

Note—

A refusal or failure to comply with a requirement may also result in a child or young person being removed—see section 35C.

(6) A person is not entitled to refuse or fail to comply with a requirement under this section on the ground that the person would, or might, by complying with that requirement, provide evidence that could be used against the person.

(7) To avoid doubt, for the purposes of the Criminal Law (Forensic Procedures) Act 2007, the taking of forensic material in the course of a random drug and alcohol test is authorised under this Act.

35B—Chief Executive may direct certain persons to undertake rehabilitation program

(1) The Chief Executive may, by notice in writing, direct a person to whom section 35A applies to undertake an approved drug and alcohol rehabilitation program of a kind specified in the notice.

(2) A person must not, without reasonable excuse, refuse or fail to comply with a direction under subsection (1).

Maximum penalty: Imprisonment for 6 months.

Note—

A refusal or failure to comply with a direction may also result in a child or young person being removed—see section 35C.

(3) A notice under subsection (1) must set out the information required by the regulations for the purposes of this subsection.

(4) For the purposes of this section, a reference to an approved drug and alcohol rehabilitation program will be taken to be a reference to a drug and alcohol rehabilitation program of a kind approved by the Chief Executive by notice in the Gazette.

35C—Forensic material and results of drug and alcohol testing etc not to be used for other purposes

(1) Forensic material obtained in the course of an approved drug and alcohol assessment, a random drug and alcohol test or an approved drug and alcohol rehabilitation program must not be used for a purpose other than a purpose contemplated by this Act.

(2) The results of an approved drug and alcohol assessment, a random drug and alcohol test or an approved drug and alcohol rehabilitation program—

(a) will not be admissible in evidence against the person to whom the results relate, other than in proceedings for an order of the Court under this Act; and

(b) may not be relied on as grounds for the exercise of any search power or the obtaining of any search warrant.

35D—Destruction of forensic material

The Chief Executive must ensure that any forensic material obtained in the course of an approved drug and alcohol assessment, a random drug and alcohol test or an approved drug and alcohol rehabilitation program is destroyed in accordance with any requirements set out in the regulations.

No. 9. Clause 72, page 44, line 19 [clause 72(2)(a)]—After 'nature' insert '

(and in any event must not exceed a period of 3 months)

No. 10. Clause 79, page 46, after line 17—Insert:

(ba) remove the child or young person from the care of a person referred to in a preceding paragraph;

No. 11. Clause 80, page 47, lines 14 and 15 [clause 80(1)]—Delete 'out at least once in each 12 month period.' and substitute:

out—

(a) if the child or young person, or another person who, in the opinion of the Minister, has a legitimate interest in the affairs of the child or young person, has requested the review—as soon as is reasonably practicable after the request; or

(b) in any case—at least once in each 12 month period.

No. 12. Clause 80, page 47, after line 15—Insert:

(1a) However, the Chief Executive need not cause a review to be carried out under subsection (1)(a) if—

(a) a review of the child or young person's circumstances has been carried out within the 12 months preceding the request; and

(b) the Chief Executive is of the opinion that the request is frivolous or vexatious, or otherwise not made in good faith.

No. 13. Clause 80, page 47, after line 42—Insert:

(2a) A child or young person may, in making submissions to a panel in the course of a review, be accompanied by a support person if they so wish.

No. 14. New clause, page 58, after line 38—Insert:

101A—Persons not to be employed in licensed children's residential facility unless they have been assessed

(1) A person must not be employed in a licensed children's residential facility unless the person has undergone a psychological or psychometric assessment of a kind determined by the Chief Executive for the purposes of this section.

(2) However, subsection (1) does not apply to the employment of a person or person of a class, or the employment of a person in circumstances, prescribed by the regulations for the purposes of this subsection.

(3) A person who is employed in a children's residential facility in contravention of subsection (1) is guilty of an offence.

Maximum penalty:

(a) for a first or second offence—$20,000;

(b) for a third or subsequent offence—$50,000 or imprisonment for 1 year.

(4) A person who employs, or continues to employ, a person in a licensed children's residential facility in contravention of subsection (1) is guilty of an offence.

Maximum penalty:

(a) in the case of a natural person—$50,000 or imprisonment for 1 year; or

(b) in the case of a body corporate—$120,000.

(5) For the purposes of this section, a reference to a person being employed will be taken to include a reference to a person who—

(a) is a self-employed person; or

(b) carries out work under a contract for services; or

(c) carries out work as a minister of religion or as part of the duties of a religious or spiritual vocation; or

(d) undertakes practical training as part of an educational or vocational course; or

(e) carries out work as a volunteer; or

(f) performs unpaid community work in accordance with an order of a court,

and a reference to employ is to be construed accordingly.

No. 15. Clause 143, page 77, after line 17 [clause 143(1)]—Insert:

(ca) if the officer believes on reasonable grounds that a child or young person is at risk of removal from the State for female genital mutilation or marriage—seize and retain any passport issued in the name of the child or young person;

No. 16. Clause 143, page 77, after line 27 [clause 143(1)]—Insert:

(1a) Subject to any order of the Court, a passport seized under subsection (1)—

(a) may be held by the Chief Executive for the period prescribed by the regulations; and

(b) must, at the end of the period, be dealt with in accordance with the regulations.

No. 17. Clause 152, page 84, lines 28 to 31 [clause 152(1)(a) and (b)]—Delete paragraphs (a) and (b) and substitute:

(a) a decision of the Chief Executive under Chapter 7 (other than a decision under Part 4 of that Chapter);

No. 18. Schedule 1, page 91, lines 25 to 27—Delete Schedule 1 and substitute:

Schedule 1—Repeal and related amendment

Part 1—Preliminary

1—Amendment provisions

In this Act, a provision under a heading referring to the amendment of a specified Act amends the Act so specified.

Part 2—Repeal of Children's Protection Act 1993

2—Repeal of Children's Protection Act 1993

The Children's Protection Act 1993 is repealed.

Part 3—Amendment of Criminal Law Consolidation Act 1935

3—Amendment of section 5AA—Aggravated offences

Section 5AA(1)(e)(i)—after 'Part 3' insert 'Division 8A or'

4—Insertion of Part 3 Division 8A

After Part 3 Division 8 insert:

Division 8A—Child marriage

34—Interpretation and application of Division

(1) In this Division—

child means a person under the age of 18 years.

(2) Nothing in this Division is intended to limit the operation of the Marriage Act 1961 of the Commonwealth.

34A—Bringing child into State for marriage

(1) A person must not bring a child into the State, or arrange for a child to be brought into the State, with the intention of causing the child to be married.

Maximum penalty:

(a) for a basic offence—imprisonment for 15 years;

(b) for an aggravated offence—imprisonment for 19 years.

(2) In proceedings for an offence against subsection (1), if it is proved that—

(a) the defendant brought a child, or arranged for a child to be brought, into the State; and

(b) the child, while in the State, went through the form or ceremony of marriage,

it will be presumed, in the absence of proof to the contrary, that the defendant brought the child, or arranged for the child to be brought, into the State (as the case may be) with the intention of causing the child to be married.

34B—Removing child from State for marriage

(1) A person must not take a child from the State, or arrange for a child to be taken from the State, with the intention of causing the child to be married.

Maximum penalty:

(a) for a basic offence—imprisonment for 15 years;

(b) for an aggravated offence—imprisonment for 19 years.

(2) In proceedings for an offence against subsection (1), if it is proved that—

(a) the defendant took a child, or arranged for a child to be taken, from the State; and

(b) the child, while outside the State, went through the form or ceremony of marriage,

it will be presumed, in the absence of proof to the contrary, that the defendant took the child, or arranged for the child to be taken, from the State (as the case may be) with the intention of causing the child to be married.

34C—Consent no defence

This Division applies irrespective of whether the child concerned, or a parent or guardian of the child, consents to the marriage.

Consideration in committee of the Legislative Council's amendments.

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

That the Legislative Council's amendments be agreed to.

I want to place a few things on the record, if I might. First of all, I would like to make it plain that the government has been successful in maintaining the protection of children and young people from harm as the paramount consideration in this bill. This is a significant achievement, although it should not have been necessary for it to even have been the subject of an argument. It is the only outcome that the government would accept.

To make it clear, as recently as last year, in response to the recommendations of the Coroner in the Chloe Valentine case, this parliament amended the current act to reflect the fact that the paramount consideration was protecting children from harm. Those in the opposition and other groups fought tooth and nail to remove that which we had inserted but a year ago pursuant to a Coroner's recommendation, thereby weakening the legislation's protective cover for children. I am delighted that that disgraceful backsliding and those very loud people out there advocating for it were unable to succeed in destroying the positive improvement in the child protection scheme, which was rendered to us all by the tragic death of Chloe Valentine.

Because we were able, just by our fingernails, to hang on to that, this parliament has kept faith with the findings of the Coroner. This parliament has not turned its back on the horrible circumstances that led to the death of that little girl and decided to ignore them, and that is a great achievement. What is sad is that we had to fight again to achieve that. All those people who forced us to have to fight again the same battle we fought after Chloe Valentine's coronial outcome was known should hang their heads in collective shame.

From the outset, the government remained firmly of the view that there cannot be any departure from the Coroner's recommendations. I will not quote them again because the parliament is fully aware of them and, in fact, paid attention to them not 18 months ago and embraced them. The government undertook the necessary reform just under two years ago, as I said, to fix all this up, the paramount consideration being the best interests of the child. This was such a near-run thing. A gaggle of backsliders, determined to undermine the paramount consideration being children as opposed to everybody else in the universe, almost had their way, courtesy predominantly of our friends in the opposition.

They have nailed their colours to this mast, and I for one will not be allowing them to forget it or anybody else. That goes for all the dilettantes who came in at the last minute and decided to add their 10 cents worth as well, people whose expertise lies in things like the Family Court, which overwhelmingly has nothing to do with children who are at serious risk of being about to die. Looking towards the sunlit uplands now, there are many other achievements aside from maintaining the non-negotiable position that we would not compromise harm to kids under any circumstances. As I said, it is tragic that that turned out to be the conversation. It is amazing that that turned out to be the conversation. Who would have thought it? Anyway, there we go.

There are any number of other things that I would like to mention briefly about this. We had the reports from Robyn Layton QC in 2003, the Hon. Ted Mullighan QC in 2008 and Bruce Debelle in 2013. Of course, there was the Coroner's inquest into Chloe Valentine. There was also Margaret Nyland's royal commission in 2014. Again, but for one crossbencher in the other place having actually stuck with the right thing, all that effort would have been flushed down the drain on the basis of a fit of pique and bruised ego about stepping back into the 20^th century instead of getting into the 21^st. But that did not happen and that is a happy day for children in South Australia, I have to say.

Certainly on my own behalf, and on behalf of the Minister for Education and Child Development, I would like to acknowledge the significant contributions made by the staff in the Department for Child Protection, the Attorney-General's Department, the Department for Education and Child Development and parliamentary counsel. I also would like to acknowledge the numerous positive contributions—and I emphasise the words 'positive contributions' because, as we have just heard, there were a lot of negative and unhelpful ones; fortunately, they led nowhere—made by numerous groups, organisations and individuals who provided their feedback during the very, very lengthy process of the gestation of this bill.

If you actually want to start from some sort of time line and you do not want to go back to the big bang with Robyn Layton, you can reasonably start the time line for this bill in August 2014 with Margaret Nyland. So this thing has been gestating for years—literally for years. So much for this piffle about 'didn't consult', 'nobody knew what was going on'. What a lot of rubbish. This thing has been worked through inside out and upside down, and the main complaint that remains to this day is that some people did not get what they wanted. That is the complaint. Well, if what they want is a second-rate outcome for children, I say, 'Hip hip hooray, you failed; the children won,' and that is as it should be.

I would like to also say that Brette Schumann has done the most extraordinary job in managing this. Unfortunately, she enjoyed—'enjoyed' may not be the right word, but she became entangled in this to such an extent that she preferred to leave my employ and go and work somewhere else because she wanted to follow this issue. Now, that is commitment, I say. So, Brette, I say to you: thank you for all the great work you have done in relation to this. Minister Close is very fortunate to have you helping her and I think she is a very lucky minister.

I also want to mention Belinda Valentine. Belinda Valentine is somebody I have spoken to only a couple of times. I have only spoken to her in private and I have only spoken to her in extreme circumstances where I asked for her to help. I asked for her to help because I was concerned that the positive outcomes that came from her granddaughter's inquiry were at risk of being lost. At critical moments, Belinda has been prepared to assist, to lend her shoulder to the wheel, and I say thank you to Belinda because the achievement of this outcome today I am absolutely confident would not have been possible without your assistance. So, I say to Belinda: thank you very much indeed.

I also thank the other members of this place, and the other place for that matter, who have genuinely tried to grapple with the enormous complexities of this area of policy and have given it their best effort. I am confident that this is an enormous opportunity to hit the reset button for the whole business of child protection here in South Australia.

We are hitting the reset button, with children now unequivocally at the front and centre of every consideration and hitting the reset button in a way that says that the long-term stability of children, who are unlucky enough to be in circumstances where they need to be removed from their parent or parents, is a priority so that those children have the opportunity to develop normal attachments and normal relationships with stable foster parent homes and so that foster parents, who are giving of their home and their time to children who are sometimes quite difficult children, have the security to know that that child is not likely to be whipped off them at a moment's notice because somebody, who quite frankly did not look after the child in the first place, has decided they want to have another crack at it. These are important matters, all of them addressed in this bill.

I am absolutely delighted that this bill has passed in its present form. There have been some tinkerings in the other place, and by and large I regard them as being either positive or at least not destructive. I am not going to be churlish and argue about any of them. With those few words, I indicate the government will be supporting these amendments. The bill will proceed to become law. As far as I am concerned, minister Close and I are ad idem on this point that the sooner we can get this running the better. Again, thank you to everybody concerned. It was one of those very near things. I think the Duke of Wellington said the Battle of Waterloo was like that, and in the end that turned out pretty well, so let's hope this is just the same.

Ms SANDERSON: I welcome this bill coming to its final position and I indicate that the Liberal opposition will be supporting the bill. I would like to thank the stakeholders who spent many hours and weeks of hard work putting together their thoughts and meeting with my colleagues and me. We submitted over 100 amendments in the lower house, many of which were successful, and there were around 70 amendments submitted in the upper house, many of which were also successful. The government did not really accept them, but I thank the crossbenchers for accepting most of those in the upper house and for their understanding of this very complex and very important issue.

I would particularly like to thank the hard work of the Law Society of South Australia, the Australian Medical Association, the South Australian Council of Social Service, the Child and Family Welfare Association of South Australia, the Council for the Care of Children, Youth Affairs Council of SA, the Child Protection Reform Movement, and Connecting Foster Carers who have spent many hours deeply involved with this piece of legislation. It has been ongoing for quite some months. It is an important piece of legislation, so it was worth testing and trying to make as many amendments as was possible.

Although the opposition did feel, and still feels, very strongly that the best interests of the child should be the paramount consideration, in line with the United Nations Convention on the Rights of the Child and also in line with the majority of stakeholders' views, I note that it was lost by one vote. It was very close. It was a good debate and lots of points of view were put across, but we are in opposition and we have to accept these things.

I was particularly disappointed that the guardianship will now be going to the CE, an appointed and salaried staff member, rather than to the minister. I believe in the Westminster system in that the minister has the ultimate responsibility, and I believe it should be under the minister's guardianship. Should I be so fortunate as to be the minister I would be very disappointed that they would not be under my guardianship.

However, we have come to a position on the bill. I call on the government to urgently bring before parliament the amended Families and Community Services Act outlining its early intervention and prevention initiatives, as was promised to the stakeholder group. That does form a very important part of the prevention and intervention. The bill we have now is really at the critical end where the child is removed, but we have too many children being removed and more work needs to be done with the families to stop the children being removed and allowing them to stay safely with their families. I indicate that the opposition will be supporting the bill as is.

Motion carried.