Bills

Children and Young People (Safety) (Miscellaneous) Amendment Bill

Committee Stage

In committee (resumed on motion).

Clause 2.

The ACTING CHAIR (Mr Cowdrey): The committee will continue. We were at clause 2 and there had been a number of questions already asked in regard to that clause. Are there any further questions before we put the clause?

Ms HILDYARD: In relation to clause 2, what specific articles of the UN Convention on the Rights of the Child will this bill uphold when it commences?

The Hon. R. SANDERSON: Do you have to ask questions that actually relate to—

The ACTING CHAIR (Mr Cowdrey): I will begin to bring the questions coming from members closer to the context of the clauses that are being discussed. I have given some latitude, given that there were a number in regard to the first clause, which is normal practice, it being the title of the bill. From this point forward, after this clause I will certainly bring questions back to the crux of that particular clause. The minister can respond to this question and from this point forward I will be much more tight in my interpretation.

The Hon. R. SANDERSON: Perhaps just for clarification, this is clause 2, which is regarding commencement: 'This act comes into operation on a day to be fixed by proclamation.' If I could have the question in relation to how it relates to that section, please.

Ms HILDYARD: What specific articles of the UN Convention on the Rights of the Child would this bill uphold when it commences?

The Hon. R. SANDERSON: Perhaps the member could reference which of these rights she is concerned about. We are just wasting time for me to read out the whole of the United Nations Convention on the Rights of the Child. That is not about the commencement.

The ACTING CHAIR (Mr Cowdrey): Thank you for the point of clarification. Perhaps we can rephrase the question from this point forward. As I said, member for Reynell, we will get closer to the crux of the particular clause in question, but please feel free to rephrase. As I have said, I am happy to be lenient over the first couple of clauses. Please proceed.

Ms HILDYARD: I hear you, Mr Acting Chair. I think the UN Convention on the Rights of the Child is probably very relevant to all aspects of this bill, but I will reframe this question. Minister, how will the bill accord when it commences with article 12 of the UN Convention on the Rights of the Child?

The Hon. R. SANDERSON: Could the member read out article 12, please?

Ms HILDYARD: Is it appropriate that I am asked a question?

The ACTING CHAIR (Mr Cowdrey): We are not going to go back and forward on either side of the chamber. I think the minister has just asked for clarification. If you wish to provide further clarification, please do. The question can be put again.

Ms HILDYARD: How does the bill accord with article 12 of the UN Convention on the Rights of the Child, or how will it accord when it commences with article 12 of the UN Convention on the Rights of the Child? Article 12 reads:

Children have the right to say what they think should happen when adults are making decisions that affect them and to have their opinions taken into account.

The Hon. R. SANDERSON: I thank the member for clarifying it, so now I know what she is actually talking about. She is talking about the voice of the child in relation to adoption, which is the part we have amended in this bill. We have put forward amendments, and we have amended our amendments after discussion with both the commissioner and the Guardian for Children.

We have now duplicated the rights and the voice, the consent of the child, from the Adoption Act and we have strengthened that by also requiring that any child or children may be heard, may have their voices heard, and have a say on whether the adoption goes ahead. Every child has legal representation as well.

Ms HILDYARD: When the bill commences, what in the bill will ensure that Article 25 of the UN Conventions of the Rights of the Child is upheld?

The Hon. R. SANDERSON: Could you please clarify that?

Ms HILDYARD: Article 25 states:

Children who are looked after by their local authority rather than their parents should have their situation reviewed regularly.

The Hon. R. SANDERSON: I thank the member for the question. This is something that, in opposition, I questioned many times for the Report on Government Services. Under the former Labor government, they never reported the annual reviews because they were not done; they were so low.

Coming into government, we saw that only about 25 per cent of children were having an annual review. We have now lifted that into the eighties. That is part of the requirements; it is in our bill. It is in the existing legislation and it continues to be in the existing legislation. As I was saying, it is only since the Liberal government came to power that it has actually been performed.

Dr CLOSE: I have a question about the consultation that was undertaken with this bill. In this consultation, what issues did the Guardian for Children and Young People raise?

The Hon. R. SANDERSON: I thank the member for her question. As far as the Guardian for Children and Young People goes, we have:

support the best interests of the child;

in-principle support for the placement principle, noting the need for DCP cultural change;

suggest that we include a need for cultural supervision for non-Aboriginal employees;

suggest need to change penalty provisions from applying to children and young people;

concern about limiting powers of internal review;

seeks inclusion of rules around interaction between the Guardian for Children and Young People and the CE, including acknowledging correspondence and time lines for responses to recs as well as information sharing;

seeks inclusion of education engagement as a priority;

seeks inclusion of financial support to 21;

seeks the UN Rights of the Child to be embedded;

seeks children and young people's right to costs when seeking a review;

seeks inclusion of requirement to make children and young people understand the charter;

right to review and complaints progress; and—

it is arguably already in the principles—

seeks legislation to restrict residential care housing to four and less siblings.

Dr CLOSE: When consulting on the bill, was the issue about the need for a funded community visitor scheme for children in care raised during the consultation process, not just with the guardian but more generally?

The Hon. R. SANDERSON: Not that we recall. It was not really in the scope of this bill.

The ACTING CHAIR (Mr Cowdrey): Your final question, member for Port Adelaide.

Dr CLOSE: My final question on this clause is: what was the extent of direct consultation with children in care about the contents of this bill?

The Hon. R. SANDERSON: We have spoken to CREATE, which is the national voice for children in care and leaving care, and we also spoke to many children who were over 18 who had left care. I have personally spoken to young people, certainly a lot of foster carers and the NGOs about this issue.

Mr SZAKACS: Minister, in the consultation that was undertaken with the Guardian for Children and Young People, and of the matters raised by the Guardian for Children and Young People, what was not proceeded with in the final version of this bill, and can you give reasons why those matters were not proceeded with?

The Hon. R. SANDERSON: I thank the member for this question. I note that, when the original bill was introduced in 2017, there had been extensive consultation on a draft bill, and then there was zero consultation on the final bill. As I was part of the group who was incredibly unhappy about that, we have gone out of our way to do consultation in the best way that I know how. We have consulted, we have listened and we have actually made changes.

We have also agreed to make further changes when there is a full review, remembering that this is an interim review and that a full review is required in 2022. With respect to the requirements of the guardian, some of the issues she raised were practice issues, which are really to do with policy and practice and which are best dealt with in that area. Some were accepted, some were already implied in the existing legislation and some of them have been left to the full review where they can be reviewed again.

That is the same for all the stakeholders. There are some that were accepted, there are some that are practice priorities that can be done through the department, and there are others that are more suited to the full review, which is required by legislation in 2022.

Mr SZAKACS: I appreciate the minister's response, but specifically my question related to the guardian, not in relation to other stakeholders and matters that they may or may not have raised. It was specifically regarding the matters raised by the guardian in the consultation that the minister undertook, and those matters that were not proceeded with and the reasons that those matters were proceeded with.

The Hon. R. SANDERSON: Stage 1 of this bill was to amend the Children and Young People (Safety) Act to implement critical changes to strengthen the effective and efficient operation of the act, and to give effective suggestions that received overwhelming stakeholder support.

Stage 2, which will be the full review in 2022, will refer the remaining suggestions to the full review of the Children and Young People (Safety) Act, which will commence in 2022 and which will be completed by February 2023 as per section 169 of the act. Any that were not accepted, or those that were not considered to be practice, will be considered again in 2022.

Mr SZAKACS: I have a final question to the minister on this clause. How many foster and kinship carers left or exited their role in the 2019-20 financial year, and are the reasons those kinship carers or foster carers who exited or left tracked and published?

The Hon. R. SANDERSON: I seek some clarification, Mr Acting Chair. I believe that we are still on clause 2, which is to do with the commencement of the act, and each person can have three questions.

The ACTING CHAIR (Mr Cowdrey): Correct. As I have said, I have been lenient in regard to the first two clauses—

The Hon. R. SANDERSON: I do not understand the link to the actual—

The ACTING CHAIR (Mr Cowdrey): —as is practice in regard to high-level principles and consultation, so I am happy to take the question. If the member is happy to perhaps direct that question to a more pertinent clause later in the committee process, that could be taken on advice as well.

Mr SZAKACS: The minister raised a couple of points there for clarification. That was my third question.

The Hon. R. Sanderson: I heard you say 3.5 earlier.

Mr SZAKACS: I did.

The ACTING CHAIR (Mr Cowdrey): The member for Cheltenham has only asked three questions here.

Mr SZAKACS: I have not proceeded with that half a question. I am happy for the minister to take this on notice if that would be more pertinent, and certainly for the matter of the clause generally the approach of the Chair is to have these matters of consultation reporting in the early clauses 1 or 2. I am happy for the minister to take my question on notice if that would be easier.

The ACTING CHAIR (Mr Cowdrey): Perhaps, rather than on notice, if the minister is happy to answer that question at a more relevant clause, I think that is fine. As long as both the member and the minister are happy to proceed in that way, we will come back to that when the appropriate clause comes up.

Mr SZAKACS: Sorry, Chair. I guess I will be happy to hear from the minister as to whether she would like to answer it later or whether she would like to take it on notice, so that I can—

The Hon. R. SANDERSON: From my recollection, it was something to do with foster care numbers. If that comes up somewhere in this bill, I will be happy to answer that.

The ACTING CHAIR (Mr Cowdrey): We will deal with it at a later clause. Are there any further questions on clause 2?

Ms WORTLEY: What format did the consultation with children take and where are the results of that consultation? Where is it recorded and is it public information?

The Hon. R. SANDERSON: I thank the member for her question. Relationships Australia on behalf of DCP spoke to children and young people in care and those who have left care in confidence, so that will not be published. We did speak to CREATE, who put in a written submission, and their policy position is available on their national website.

Ms WORTLEY: Minister, what have you done to allay concerns raised by stakeholders that the bill and its contents could be in breach of the UN Convention on the Rights of the Child?

The Hon. R. SANDERSON: Can I clarify which part of this bill you think that applies to?

Ms WORTLEY: It has been raised already, and I am sure you are aware of that. It is not a secret.

The Hon. R. SANDERSON: Perhaps you are talking about adoption and the rights of the child. We have amended the amendment so that now we have strengthened the voice of the child to be heard, and they also have a right to legal representation with regard to adoption. Remember, we are amending a Labor bill introduced in 2017, so if there is a breach of the United Nations convention I would need to know which part you are talking about because it may have existed the whole time.

Ms WORTLEY: Is there anything in the bill when it commences that will improve accountability of the 14,500 calls to the Child Abuse Report Line that went unanswered last year?

The Hon. R. SANDERSON: Chair, unfortunately I cannot see any relationship between the commencement of this bill and that question. It is completely off topic and it is clearly wasting time.

The ACTING CHAIR (Mr Cowdrey): Yes, I am happy to step in with regard to that question as well. That is an operational matter for the government, as opposed to policy in regard to this particular bill.

Clause passed.

Clause 3.

The ACTING CHAIR (Mr Cowdrey): As I said, I am now going to ask members if they could please direct their questions more directly to the clauses as appropriate as we move through the remainder of the bill in committee. The first amendment on the file is in regard to an insertion after clause 3, so I will now ask that clause 3 as printed stand if there are no questions on the first part of clause 3, which is—

Ms Hildyard: Can we ask questions on clause 3 before you put it?

The ACTING CHAIR (Mr Cowdrey): Yes, I just got to asking for questions in regard to clause 3 as stands, but it is a very limited clause. I draw that to the member's attention.

Ms HILDYARD: Thank you, Mr Chair. The minister has spoken earlier today, and indeed when she introduced the bill, about this being a bill that has come about as a result of a review of the act. We had considerable discussion about the timing of that review, the delay in relation to that review and this bill coming to the house.

Given that the minister has spoken about this being the first review and that another one is due, my question in relation to this clause and in relation to future potential amendments to the bill is: when will the minister commence work on the next review ahead of the requirement for this to occur in 2022 and has that work already commenced?

The ACTING CHAIR (Mr Cowdrey): I remind the member that asking a question is not an opportunity to provide a speech to the house. The initial part of that question I would almost deem as that, but take that as some advice more than anything else.

The Hon. R. SANDERSON: The new review will be commenced in October 2022.

Ms HILDYARD: Also in relation to that next review and then a future amendment bill coming to this house, in order to ensure that the best possible provisions are included in that future amendment bill what systems will you employ to measure the efficacy and outcomes as a result of this bill?

The Hon. R. SANDERSON: Please clarify your exact question.

Ms HILDYARD: What systems will you employ to measure the efficacy of this bill and the depth or success of outcomes as a result of this current amendment bill?

The Hon. R. SANDERSON: Already required in legislation is an annual review of the act. We have also included an extra review required regarding the adoption from care. That will be completed after the fourth but not before the fifth anniversary of the commencement of this act.

Clause passed.

New clause 3A.

Ms HILDYARD: I move:

Amendment No 1 [Hildyard–1]—

Page 4, after line 2—Insert:

3A—Substitution of section 7

Section 7—delete section 7 and substitute:

7—Safety and best interests of children and young people of highest importance in operation of Act

(1) The protection of children and young people from harm, and the need to act in the best interests of children and young people, are each of the highest importance in the administration, operation and enforcement of this Act.

(2) To avoid doubt, nothing in subsection (1) is to be interpreted as creating a hierarchy between the matters referred to in that subsection (however both of those matters are of a higher priority than any other needs of children and young people in the administration, operation and enforcement of this Act).

The ACTING CHAIR (Mr Cowdrey): Would you like to speak to that amendment, member for Reynell?

Ms HILDYARD: Can I just be clear so I understand the process. We go to the amendment I have proposed first, there are then questions about that, then questions about the substantive clause; is that correct?

The ACTING CHAIR (Mr Cowdrey): This is the insertion of a new clause altogether. We have passed clause 3 as printed. We are now discussing the amendment that is the insertion of a new clause 3A. You can speak to your amendment, and the question will then be put to the committee as to whether to agree to that amendment. We will then move to subsequent clauses.

Ms HILDYARD: In my copy of the bill, there is no insertion of a new clause.

The ACTING CHAIR (Mr Cowdrey): That is right. Your set of amendments, set 3, amendment No. 1, proposes to insert new clause 3A to follow clause 3.

Ms HILDYARD: I think it is actually clause 4, but that is fine.

The ACTING CHAIR (Mr Cowdrey): It will become clause 3A. That is what has been listed.

Ms HILDYARD: The amendment in my name is about strengthening the best interest principles. I will explain to the committee the intention in relation to that issue. Before I do so, can I say that the insertion of the best interest principles is welcomed. However, there is a view amongst particular stakeholders that those principles have not been consistently or robustly applied at various points throughout the bill, and I spoke about that in my second reading contribution this morning.

This amendment is focused on ensuring that those best interest principles are better applied throughout the act. It is also focused on ensuring that both the best interests of children and young people and the protection of children and young people from harm are each of the highest importance in the administration and operation of this act. I am happy to take questions on this amendment, but that is the intention, and I did elaborate further on that in my second reading speech earlier today.

The Hon. V.A. CHAPMAN: I have a question of the mover of the amendment. Who specifically requested this amendment?

Ms HILDYARD: There are many stakeholders who—

The Hon. V.A. CHAPMAN: Who?

Ms HILDYARD: Sorry, can I answer the question? There are many stakeholders who spoke with me after the minister's round of consultation, and a number of those stakeholders raised this particular issue. I can say that most of the stakeholders who did so, except for a couple, had been stakeholders who I understand—of course, I was not privy to all the details of the minister's consultation, but from my understanding, from what people advised me—after consultation with the minister, had concerns in relation to this issue.

I am not at liberty to name all those stakeholders. Some of them spoke with me in confidence, so I am really not at liberty to explain that, but I can say that some of those stakeholders were stakeholders who I understand—as I said, I can only say that not having all the details of the minister's consultation process—had been involved to some degree in that consultation. I am sorry I cannot provide more information to the committee about that particular issue given the nature in which people provided me with information. I am sure the Attorney would understand that there is a need to make sure that people are comfortable to bring those issues forward.

The Hon. V.A. CHAPMAN: Without naming these people, who of these, if any, were not stakeholders at the round table?

Ms HILDYARD: I refer to my previous answer. I cannot disclose for reasons of their—

The Hon. V.A. Chapman interjecting:

Ms HILDYARD: Well, you have just asked me to name the ones who were not at the round table. That is my understanding of your question.

The ACTING CHAIR (Mr Cowdrey): Members!

Ms HILDYARD: Are you doing this bill, or is the minister doing this bill?

The Hon. V.A. CHAPMAN: I am a member of the parliament, thank you, and I am entitled to ask questions of the mover of an amendment.

The ACTING CHAIR (Mr Cowdrey): This will be your third question now, Attorney, if we are concluding the answer for the member for Reynell.

The Hon. V.A. CHAPMAN: I am seeking to clarify the second question because I prefaced it quite clearly by saying 'without naming them'. Could the mover of the amendment indicate whether any of these stakeholders were not members of the ministerial round table?

Ms HILDYARD: It is very difficult to answer that question without naming particular people or organisations. Also, I was not at the ministerial round table, so I do not know all the details about who came along on that day or whether there were several days. I am not privy to that information.

If the minister would like to share that information, I would be very happy to see the results of that consultation and the results of the round table and who attended, but I am not privy in full to that information. I am very happy to receive it, but I cannot respond to that, as I said, without disclosing what people have brought to me and the content of those issues, nor can I comment on who was at an event that the minister convened. The minister may have more information for the Attorney on that particular issue. As I said, if the minister wants to share it, I would be very happy to receive it.

The Hon. V.A. CHAPMAN: My third question then is: were these the same unnamed people stakeholders in respect of the development of the previous government's bill, which culminated in the act of 2017, in which there is no reference to best interests?

Ms HILDYARD: I refer to my previous answer.

The Hon. R. SANDERSON: I would like to ask how the 2017 bill that was introduced by the then Labor government, of which you were part, made no reference at all to 'best interests'. I fought strongly to have best interests included. The United Nations convention makes it very clear that the best interests of a child should be a primary consideration but not necessarily a paramount consideration. I believe that the amendments I have brought forward strike the right balance to include the best interests of the child whilst keeping safety the paramount consideration. Can you explain why you are now speaking against your own government, that you were part of, including this, that ignored all the same stakeholders who said the same thing and why you are now requesting it?

Ms HILDYARD: I think there are about five questions in there, but I will do my best.

The ACTING CHAIR (Mr Cowdrey): Members, I draw the minister's attention to the request I made earlier, about straying away from long-winded questions and statements to the house. I will allow the member for Reynell an opportunity to respond.

Ms HILDYARD: As I said, I think there were multiple questions in that statement. I was not the minister at the time but, yes, I was a member of the government. As I said in my second reading contribution, and as I just said in responding to an earlier question or when I introduced the amendment, I support and we support and welcome the best interest principles being introduced. However, we suggest that this amendment will actually provide a clearer, more robust and better set of guiding principles, but we support the best interest principles being introduced. It seems there is some adversarial discussion emerging but, again, we welcome the best interest principles being introduced.

The committee divided on the new clause:

Ayes 20

Noes 24

Majority 4

New clause thus negatived.

Clause 4.

The CHAIR: Member for Reynell, you have amendment No. 2 standing in your name, which relates to clause 4. Would you like to move that now?

Ms HILDYARD: This amendment and the next one are consequential to the amendment I moved previously.

The CHAIR: Thank you for your guidance. So those amendments will disappear and we will deal with clause 4 as printed.

Ms HILDYARD: Firstly, what does the minister see as being of paramount importance in relation to the care of children?

The Hon. R. SANDERSON: Safety remains the paramount consideration; however, we have inserted 'the best interests of a child' as well.

Ms HILDYARD: Does the minister believe that the inclusion of this clause will help to manage the ongoing risk of exploitation and abuse of children in care identified by the Guardian for Children and Young People?

The Hon. R. SANDERSON: Sorry, could I seek clarification. Are we talking about the bill—not the act but the bill?

Ms HILDYARD: Yes.

The Hon. R. SANDERSON: Which reads:

Clause 4—Amendment of section 8—Other needs of children and young people

(1) Section 8(2)—delete 'requirement' and substitute:

requirements

And then:

(4) Each person or body involved in the administration, operation and enforcement of this Act must, when performing a function or exercising a power in relation to a child or young person, act in the best interests of that child or young person (however, this subsection does not displace, and cannot be used to justify the displacement of, section 7).

Which relates to the safety of the child.

The CHAIR: Yes, that is correct, clause 4. The member for Reynell's first question at least was in relation to the best interests of a child. Correct?

Ms HILDYARD: Yes.

The CHAIR: For my benefit and the minister's benefit, could you repeat your second question, please.

Ms HILDYARD: Minister, will the inclusion of this clause, which is essentially an insertion of the best interests principle, help to manage the ongoing risk of exploitation and abuse of children in care identified by the Guardian for Children and Young People in their last annual report?

The Hon. R. SANDERSON: While this bill maintains safety as the paramount consideration for the decision-maker, which of course is in the context of child protection administration, it is consistent with the child's best interests. This is intended to further embed the principled framework of which a child's best interests are a consideration. Safety is not inconsistent with the best interests approach.

As I mentioned earlier, the United Nations Convention on the Rights of the Child states that the best interests of the child shall be 'a primary consideration', not 'the only consideration', and it does not say 'paramount'. We have further embedded the best interests of the child as well as maintained safety as the paramount consideration.

Ms HILDYARD: I guess this is a follow-up because I am not clear about the minister's answer. Practically, how will the insertion of this clause to do with the best interests principle help to manage the risk of ongoing exploitation and abuse of children in care, which the Guardian for Children and Young People clearly identified as a very concerning factor in her most recent annual report?

The Hon. R. SANDERSON: I can give you a practical example from the most recent Rice review regarding C1 and C2. The first priority was securing the safety of the children, which was established, and then the second priority was the wraparound supports and further engagement with those young people.

Ms WORTLEY: Minister, do you agree with the Nyland recommendation that a community visitor scheme is in the best interests of children in care?

The Hon. R. SANDERSON: I thank the member for the question. As she would be aware, the former government agreed to a trial of a visitor scheme. That trial has come to an end and there was an evaluation. That is now with the Minister for Education to determine and it is with the Treasurer as part of our budget bid.

Ms WORTLEY: Minister, how does this amendment interaction with section 8(3) of the act?

The Hon. R. SANDERSON: It is an additional requirement. I think it fits in quite well with section 8—Other needs of children and young people.

Ms WORTLEY: How do the adoption provisions set out in this bill interact with the amendment at clause 4?

The Hon. R. SANDERSON: Could you please explain that question a bit more? I am not clear.

Ms WORTLEY: For clarification, in relation to the amendment to the adoption provisions set out in the bill, how do they interact with the amendment at clause 4?

The Hon. R. SANDERSON: I am advised that any court, when making an order, whether that be a removal order or an adoption order, would have to turn their mind to the best interests of the child.

Clause passed.

Clause 5.

Ms HILDYARD: What specific consultation has occurred with Nunga Babies Watch to reduce the incidence of Aboriginal and Torres Strait Islander babies being removed at birth?

The Hon. R. SANDERSON: I seek clarification as to where this fits with this part of the legislation.

Ms HILDYARD: Sorry, my bill is—

The CHAIR: You are quite right. Your question, member for Reynell, relates to clause 6, which we have all realised. Do you have a question in relation to clause 5?

Ms HILDYARD: Yes, I do. I just have my 5 and 6 together. My act is an earlier version and it has different numbering; excuse me.

The CHAIR: Do you want to get a later edition?

Ms HILDYARD: I will. Minister, what does this bill do to deal with the link between children in care and future contact with health, justice and welfare services?

The Hon. R. SANDERSON: I am sorry, I need clarification. My understanding is that clause 5 relates to placement principles. Could you reiterate the question?

Ms HILDYARD: I do not understand why my earlier question was called out of order. I do not really understand—

The CHAIR: It was not called out of order, but you were quite specific in your first question in relation to Aboriginal and Torres Strait Islander children and young people. We are just getting you an updated version of the bill, member for Reynell.

Ms HILDYARD: Sorry, I do not understand. Could somebody explain how the first question I asked was not relevant to the placement principles?

The CHAIR: Given that you mentioned in your question Aboriginal and Torres Strait Islander children, I think we jumped to the assumption that it related to clause 6.

Ms HILDYARD: They are covered by those as well.

The CHAIR: Let's try again. Member for Reynell, could you clarify the most recent question you asked, and then if you would like to go back to your first question we can. We are still on clause 5.

Ms HILDYARD: I understand that. I am really not sure how to be clearer, but I can ask it again.

The CHAIR: Well, the minister has asked for clarification.

Ms HILDYARD: How does this amendment bill—and obviously I am asking in relation to the placement principles and their insertion at clause 5, so in relation to that clause in this bill—or that clause in particular, deal with the very worrying link between children in care and future contact with health, justice and welfare services?

The Hon. R. SANDERSON: I thank the member for the question. Regarding the section 11 placement principles, the court does not currently have the power to make an order in relation to the placement of a child. The amendment has been made to give effect to the principle of timely decision-making and ensuring that decision-making about the placement is as close to the child as possible.

Ms HILDYARD: That does not answer the question. I will try again in a different way.

The CHAIR: You could seek clarification.

Ms HILDYARD: How will the insertion of the placement principles support the much-needed change to the resource mix to prevent children going into care?

The Hon. R. SANDERSON: We believe that you might be talking about the Aboriginal placement principle, whereas clause 5 relates to deleting a subsection, not actually inserting one. I am not inserting anything: I am deleting something. Clause 5 is a deletion.

The CHAIR: My understanding is that we are amending section 11—Placement principles, which already exists. We are simply amending it.

Ms HILDYARD: Yes, but I would have thought, Mr Chair, that the questions are relevant to either clause 5 or clause 6, because you are absolutely right: we are deleting a section and inserting a section, so both those clauses are relevant to the questions that I am asking, if that makes sense.

The CHAIR: The questions you are asking are relevant to the clauses rather, yes.

Ms HILDYARD: Do you understand my point?

The CHAIR: Yes, I understand. I guess that in this situation—and it comes up from time to time—members ask questions of a minister, and really it is up to the minister to answer those questions in whatever way he or she sees fit. The minister here can answer in the way she sees fit.

The Hon. R. SANDERSON: The placement principles under section 11 relate to all children in placement. As I mentioned, the court currently does not have any power to determine a placement: it can determine a removal and guardianship. It cannot determine who then has the child in its placement. So we are removing subsection (4), which provides: 'To avoid doubt, the requirement under this section applies to the Court.'

The court does not have that power, so we have removed that just to make it clear. It is tidying up some confusing legislation, which is obvious because it is confusing both of us. That is why it is being removed.

Ms HILDYARD: My question still stands.

The CHAIR: As I said, the minister can interpret your question and answer in whatever way she pleases. She has advisers with her today. I know they will be familiar with the bill and the amendments. Let's have another go, member for Reynell. You have asked that question.

Ms HILDYARD: I will try to ask question No. 2 again and pick up the point.

The CHAIR: Yes, we will all listen carefully.

Ms HILDYARD: I am aware of what clause 5 of the bill does. It does go to issues around placement principles. I am asking a question in relation to placement principles. I will have a series of questions at clause 5 about placement principles and at clause 6 about placement principles, because to me it is irrelevant whether you are deleting or inserting the subject matter of those clauses. Clauses 5 and 6 relate to placement principles. I understand perfectly what the act is doing, or what the bill intends to do. I am attempting to ask questions about placement principles, so I will try my second question again, if that is okay.

The CHAIR: That is right, member for Reynell; however, what we are dealing with is a specific amendment, and that is to delete subsection (4). I guess that if we were very specific we would need to ask how that particular deletion affects placement principles.

Ms HILDYARD: If you are deleting those placement principles and inserting other placement principles in the next clause, can the minister please advise how that deletion and subsequent insertion will deal with the very worrying link between children in care and future contact with health, justice and welfare services?

The Hon. R. SANDERSON: We have sought further advice and, as I have already stated, it is really a tidy up. There is nothing more I can say on this topic. They are not related. This placement principle is regarding every child, and then the Aboriginal placement principle is a separate section. It is a tidy up. We have even checked with parliamentary counsel. There is nothing more I can add.

The CHAIR: The amendment bill we are dealing with deletes subsection (4) of the existing act, which reads: 'To avoid doubt, the requirement under this section applies to the Court.'

Ms HILDYARD: I am still trying to get an answer to my question. I do not need clarification of what we are doing; I just want an answer to the substantive question.

The Hon. R. SANDERSON: It does not make a difference if it is in or out. If you can explain why you need it in there.

The CHAIR: Order!

Ms HILDYARD: This is a really important question—a really important question for South Australian children—and it would be excellent to get an answer to it.

The CHAIR: I am going to try and rein this in a bit. Member for Reynell, you have asked one question, you have sought clarification on that and the minister has answered it as she sees fit. Would you like to ask a further question on clause 5?

Ms HILDYARD: We will talk about the insertion of the principles at clause 6, but at the moment in relation to clause 5, will this change do anything to ensure that there is an improvement in notice being given to the minister of serious sexual and other assaults of children in the department's care?

The Hon. R. SANDERSON: As I have stated many times, this is a technical amendment only. It seeks to tidy up an error in the legislation. That is all it seeks to do.

Ms WORTLEY: To clarify, we are talking about the wording, 'To avoid doubt, the requirement under this section applies to the Court.' Is that what we are speaking about?

The Hon. R. SANDERSON: Yes.

Ms WORTLEY: So you think there is no doubt that it is not necessary to include that in there?

The Hon. R. SANDERSON: I did not even think it. It was recommended as a technical improvement. I am not a lawyer. This was recommended by lawyers, not me. This is not my idea. This was an opportunity to tidy up an amendment that existed in the bill. We can leave it in there if it is very upsetting to anyone. It was really just tidying up a bill. It does not actually do much other than make the technical amendment and tidy up the bill. We can leave it in there if you are really wedded to it.

Ms WORTLEY: Can I have some clarification on that? So this was put in there to avoid doubt and you are happy for that to be removed?

The Hon. R. SANDERSON: This deletion was to operate in conjunction with new section 56A in clause 17, which confirms that the court is not authorised to make orders relating to the placement or contact arrangements. I believe there is a Labor amendment that was put in that then deletes the necessity for that, so we do not need it. It is just a tidy up, but we can leave it there if you prefer.

The CHAIR: We are dealing with the amendment bill as it stands.

The Hon. R. SANDERSON: The advice from parliamentary counsel is that we should do it. It is a tidy up. There are further amendments that you are making to this. It will become clear as we go further.

Ms WORTLEY: So it is a tidy up. What does it actually do by deleting it?

The Hon. R. SANDERSON: It really is a technical amendment to avoid doubt. The courts do not have the power to determine a placement. This is really a technical amendment; it is a tidy-up. It does not do anything other than fix a piece of messy legislation and make it clearer.

The CHAIR: So we have the answer?

An honourable member interjecting:

The CHAIR: What we need to do is deal with the amendment bill as it is in front of us. The opposition members have been asking why the minister and the government are looking to delete a particular section and the minister has answered that. The answer was: to make it a tidy piece of legislation. Are there any further questions on clause 5?

The Hon. Z.L. BETTISON: So the clarification is: by the removal of that, what does the clause now do?

The Hon. R. SANDERSON: It was not required in the first place because, as I have said several times, the courts cannot determine a placement. A court can determine removal. They cannot determine a placement. They never could. This really should never have been in there. I do not know who put it in. If it was put in there in 2017, it was not necessary. It was put in the original bill. It is a technical amendment; it was discovered when we opened up the bill. The drafters have seen that it is unnecessary, 'Let's clean it up, remove it.' It is a technical change. It is a tidy up. That is all it is.

Clause passed.

Clause 6.

Ms HILDYARD: I move:

Amendment No 4 [Hildyard–1]—

Page 4, lines 28 to 30 [clause 6, inserted section 12A(b)]—Delete 'to participate in' and substitute:

, and in particular Aboriginal and Torres Strait Islander children and young people, their families and communities, facilitated by Aboriginal community mechanisms, to lead decision-making about, and participate in,

In regard to the first amendment, more broadly, and similar to what I said in relation to the insertion of the best interests principles, the inclusion of the Aboriginal and Torres Strait Islander Child Placement Principle are absolutely welcomed. However, a number of stakeholders have spoken with us about the fact that an articulation of the principles on their own could be insufficient to ensure Aboriginal children and young people are both physically safe and culturally safe and cared for through being placed where they are connected to their culture and kin.

The reason we are moving this amendment based on that feedback from stakeholders is that we think the principles can be better and more robustly brought to life through increased participation of Aboriginal and Torres Strait Islander families and communities in child protection decision-making. I have a number of other points, but I understand we are going to deal with them separately.

The Hon. R. SANDERSON: What is the Aboriginal community mechanism, and what consultation have you undertaken?

Ms HILDYARD: I think that is two questions. I will go to the second question first. It is similar to how I responded in terms of consultation. I think the Attorney asked me a question about who I had consulted with in relation to the best interest principle earlier. I am not sure if you were in here, Mr Chair, or if that was our acting chair. I am drawing on that because it is a similar explanation.

The minister outlined earlier today how she consulted with particular groups, individuals and organisations, a range of stakeholders. Some of those stakeholders—post that consultation, as of course they would have—spoke with me about their views on both the nature and extent of the consultation but also spoke with me about their views in relation to the content of the bill. As I am sure the committee would understand, a number of those stakeholders do not necessarily wish to be named in particular.

Certainly, in terms of the question about how that consultation occurred, after those particular individuals or organisational representatives approached me, I met with some of them. There was then ongoing communication via telephone conversations, etc., with me and my staff. Of course, as I should as the shadow minister, I responded to those approaches and communicated with those particular individuals and organisations.

The Hon. R. SANDERSON: To the first question—I know you answered the second question—what is an Aboriginal community mechanism? Can you explain that, please?

Ms HILDYARD: The purpose of this clause is to ensure that Aboriginal and Torres Strait Islander children and young people, their families and communities facilitate those discussions and therefore, through their facilitation and leadership around decision-making in relation to those particular discussions and the decisions that those discussions relate to, they will identify what those particular mechanisms are.

The Hon. R. SANDERSON: That mechanism is important because we do not know what this looks like and what is involved. It has been brought in this morning at 8.48. We have had no time to consult on or consider this. We certainly would be happy to consider this as part of the full review. It is obviously very quick, and this is important. However, I will put on the record that our government is scoping an Aboriginal peak body that has been called for for several decades. Our department has committed money to scoping that. That peak body would be in the best position to be part of that review in 2022 to look at whether we can improve these principles.

I believe that we have done a very good job of putting this together based on the consultation. It does not mean it cannot be improved. However, I think that we need time, we need to enact this and we need to see it, and then with the peak bodies' help and consultation I am more than happy to look at this again in 2022 should I still be the minister.

Ms HILDYARD: I am sorry if I missed a question in there, so I will just respond to the content of what was said.

The CHAIR: There is no obligation to ask a question. It is usual practice.

Ms HILDYARD: It is not a criticism. I am just trying to respond.

The CHAIR: Any speaker is quite able to provide some commentary.

Ms HILDYARD: Absolutely, and it was not a criticism. I am just explaining that I am not sure exactly what the question is, but I think I understand the sentiment of the statement made by the minister, so I will attempt to respond to that.

First of all, can I say that I am very pleased to hear that there is the scoping around the peak body. Can I also say that I am very glad to hear there is an openness to improvements on the bill and, certainly to go back to the very first point I made in relation to this clause and the points I made in my second reading contribution this morning, we absolutely welcome the principles. Our desire is to improve those principles, and obviously we have indicated the particular issues that were raised with us and communicated with parliamentary counsel about those issues and attempted, with their advice, to come up with the best way to improve the application of those particular principles.

What I can say is that the core of that desire to improve the application of those principles is a desire to empower Aboriginal and Torres Strait Islander children, young people, their families and communities to lead decision-making, to be empowered to lead facilitation of decision-making, and that is at the core of what we are trying to improve. To go back to the minister's first question, we are trying to ensure that Aboriginal and Torres Strait Islander children, young people, their families and communities can lead the development of those mechanisms, etc., for those discussions.

It is absolutely about trying to improve the bill. I am glad there is an openness to looking at how we might be able to do that. I can indicate that of course we have our debate in this house today—and, I suspect, tomorrow, given the time—but there will be a point at which this bill passes or not and it will potentially go to the other place. I suspect there will be an opportunity there also to look in detail at how we can improve this bill and respond to the issues that have been raised by various stakeholders. I hope that responds to the statements that have been made.

The committee divided on the amendment:

Ayes 20

Noes 24

Majority 4

Amendment thus negatived.

Ms HILDYARD: I move:

Amendment No 5 [Hildyard–1]—

Page 4, lines 34 to 38 [clause 6, inserted section 12A(c)]—Delete:

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

and substitute:

enabling Aboriginal and Torres Strait Islander children and young people, their families and communities, facilitated by Aboriginal community mechanisms, to take the lead in partnership decision-making with State authorities about Aboriginal and Torres Strait Islander children and young people under this Act

I do not think I need to go through it again at length but, as I said earlier, we welcome the inclusion of the Aboriginal and Torres Strait Islander Child Placement Principle. What we are trying to do with each of these amendments is to better empower Aboriginal and Torres Strait Islander children, their families and community members.

This amendment in particular is about moving away from simply enabling Aboriginal and Torres Strait Islander people to participate in the care and protection of their young people to enabling Aboriginal and Torres Strait Islander children, their families and communities to lead decision-making. It is also about 'enabling' Aboriginal and Torres Strait Islander children and young people, their families and communities to take the lead in partnership decision-making with the state government about Aboriginal and Torres Strait Islander children and young people rather than simply, as the bill does currently, 'encouraging' Aboriginal and Torres Strait Islander people, their children and young people and state government to act in partnership when making decisions about the placement of Aboriginal and Torres Strait Islander children and young people.

The crucial issue here is that we are moving away from simply encouraging participation to enabling Aboriginal and Torres Strait Islander children and young people, their families and communities to take the lead in partnership decision-making with state government and other relevant authorities.

The Hon. R. SANDERSON: I am very pleased that you are turning your mind to how we can improve the Aboriginal placement principle. As I said earlier, I have no problem with doing that, but I will commit here on the record that we will do that as part of the full review, which is next year, 2022. That way we will have time to consult fully. By then, hopefully we might have our Aboriginal peak body for Aboriginal children and young people, which could be included in that consultation, and then we would really have the opportunity to make the most amazing Aboriginal placement principles possible.

I indicate that it is not that I am opposed to your ideas; it is the timing of it and that we could do a full review and do full consultation next year as part of that review. I indicate that the amendments that all relate to the same principle we will be opposing.

Ms HILDYARD: Do I take that as a question?

The CHAIR: No, it is a statement. Once again, the minister is not obliged to ask a question, but you are quite able to speak again to that, member for Reynell.

Ms HILDYARD: I am very pleased to hear that the minister appreciates the sentiment with which I bring these amendments and also to hear the minister again speak about the development of a peak body and a desire to have robust consultation and conversation with Aboriginal and Torres Strait Islander children, young people, their families and communities.

What I would say is that I appreciate that sentiment. However, I do believe in relation to this particular amendment that it is about empowering Aboriginal and Torres Strait Islander children, young people, their families and communities to take the lead in partnership decision-making in relation to children and young people who are covered by this act. I think there is absolutely consultation that can and should occur about a whole range of issues, but I do think that this principle is important and I would like to continue to try to progress that today, notwithstanding that I appreciate there will be further consultation, the development of the peak body, etc. I do worry a little that the review of the act is due, as I understand it, at the beginning of 2022.

The Hon. R. SANDERSON: October.

Ms HILDYARD: October 2022. I do think that is a reasonably long time. It is 18 months before this principle could then be enshrined as part of that broader review, so I would encourage the committee to absolutely consider further consultation in relation to the next review and to seriously consider whether we could make this amendment today, which is absolutely solely focused on empowering the leadership of Aboriginal and Torres Strait Islander children, young people, their families and communities to lead decision-making in relation to their children and young people.

We could do that and enshrine that principle today and then, of course, over the next 18 months there will be all sorts of processes. I am recommending to the committee that we do take that important step today.

The Hon. R. SANDERSON: Not that I was really asked a question, but I would state that it would be inconsistent if we agreed to one amendment and not to all the others on the view that we need to consult. This needs to be an open and transparent activity. Our government did consult and it consulted widely. It consulted with our Aboriginal expert advisory committee, which is made up of a group of Aboriginal experts in child protection from around the country, including April Lawrie. It was widely consulted and that is how this was determined.

I think we should give this the opportunity to run. Once we have an Aboriginal peak body for Aboriginal children and young people, that could be one of the very first things that they are tasked with, that they turn their minds to or that we work with them on and say, 'Let's look at this.' We have already consulted and this is how we have come up with this bill. I would just make clear that I appreciate your sentiment; however, I will not be agreeing to any amendments on the fly, without consultation and with no notice.

Ms HILDYARD: I would just like to respond. I think we are giving a series of statements to each other, which seems to be okay.

The CHAIR: It is fine, yes.

Ms HILDYARD: I have heard the minister's response, but I did want to be very clear that certainly this has been developed in consultation with particular stakeholders. It is certainly not something that has just been developed without consultation, so I just absolutely want to make that point.

Of course, as I spoke about earlier in relation to two different clauses, because of the nature of the consultation the minister undertook, various stakeholders did approach me about particular issues after that consultation. It is not appropriate and it is difficult for me to go through exactly who those particular bodies were, but I do want to place on record again that there certainly has been consultation. This clause came about because of a deep listening to the concerns of particular stakeholders, so I do want to just place on the record that, whilst the amendment is in this house today, it certainly comes after significant discussion with stakeholders.

The committee divided on the amendment:

Ayes 20

Noes 24

Majority 4

Amendment thus negatived.

Progress reported; committee to sit again.