Bills

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

Committee Stage

In committee.

(Continued from 31 March 2021.)

Clause 6.

The CHAIR: The house is in committee, the member for Reynell had moved amendment No. 7 on schedule 3 standing in her name and we were about to vote on it.

The committee divided on the amendment:

Ayes 20

Noes 22

Majority 2

Amendment thus negatived.

Ms HILDYARD: I move:

Amendment No 8 [Hildyard–1]—

Page 6, lines 2 to 4 [clause 6, inserted section 12C(2)(d)]—Delete 'their parents and family members have a right to participate, and be enabled to participate, in the making of significant decisions about the child or young person' insert:

their family and community, have a right to participate in (and must be enabled to do so) an independent Aboriginal and Torres Strait Islander community facilitated family-led decision making process in the making of significant decisions about the child or young person

Far too many Aboriginal and Torres Strait Islander children are being placed into state care and the number of Aboriginal and Torres Strait Islander children going into care is increasing. In his recent report delivered in this house, Dr Roger Thomas, the South Australian Commissioner for Aboriginal Engagement, drew attention to more work needing to be done in relation to child protection. He called out the need for targeted action on child protection to be included in any future Aboriginal affairs action plan.

There are deep concerns that Aboriginal and Torres Strait Islander children, young people, families and communities are not always being adequately consulted with; very importantly, they are not given the opportunity to lead discussion, as they should be enabled to do, about what can be done to prevent the removal of children, what supports are needed to strengthen families and what will ensure the best outcomes for Aboriginal and Torres Strait Islander children, young people, communities and families.

The amendment I am proposing is similar to others I have put forward. It is about moving away from simply enabling Aboriginal and Torres Strait Islander children, young people, their families and communities to participate in discussions about the care and protection of their children to a regime where they lead the decision-making process. The second paragraph of amendment No. 8 certainly sets out exactly how that leadership in that decision-making should occur.

As I have said previously, these concerns have been raised with me directly and publicly by a number of Aboriginal and Torres Strait Islander organisations. South Australia's Commissioner for Aboriginal Children and Young People raised concerns about consultation when Aboriginal babies deemed to be at risk by the Department for Child Protection were removed from their mothers, often shortly after birth. Those comments were raised publicly.

The commissioner told InDaily last year that she was aware of five separate instances of Aboriginal babies being removed from their mothers shortly after birth, and that is on the public record that it has been raised publicly. In these and other cases, it seems that there was a lack of consultation with mothers, grandmothers and other family who could provide the love and support to successfully raise these children.

It is absolutely imperative that Aboriginal and Torres Strait Islander people lead discussions about these most crucial circumstances and that we ensure that, in order to enable them to do that, Aboriginal children, young people, their families and communities are not just consulted but absolutely empowered to lead solutions. That is what this amendment is about.

The Hon. R. SANDERSON: This is an important topic and I agree with the member for Reynell that more work needs to be done. I absolutely agree. That is why this government, the Liberal government, for the first time has committed through my department (DCP) $200,000 for scoping and to set up a peak body that will represent Aboriginal children and young people. We believe that is expected to be ready in the 2022-23 financial year. That would be the peak body that should be part of a full and transparent consultation for any changes that are to be made.

As I have already committed on two separate occasions, we are having a full review, as required by legislation, in 2022. So this is a very important topic. Any changes that are to be made should require, must require, full Aboriginal community consultation. We cannot just change words willy-nilly on the basis of, 'We do not even know who the consultation was from.' My department did targeted consultation, including with Aboriginal experts on a national committee, which included our Commissioner for Aboriginal Children and Young People, April Lawrie, and we are certainly open to improving it.

We have no problem with improving this further, but it should be part of a very important extensive full consultation that will be part of the legislative required review next year in 2022. I will state, however, as to the exact cases that were just mentioned then about children being removed at birth, for the first time ever the Liberal government has funded family group conferencing. It was announced by the former government, never funded and never implemented. This has also recently been extended to include pregnant mothers.

Rather than waiting until a baby is born and then working on how we support the family after the baby is removed, which is too late, we are now investing that money and opening that up so that when a pregnant mother is known to be struggling or needing more help, we can instigate the family group conferencing at that point, which I am sure will help many mothers and future mothers as well as Aboriginal future mothers.

Ms HILDYARD: I will just say a couple of things. I certainly agree that it is incredibly important to work at the first opportunity with women who are pregnant to ensure that they have all the support they need. Again, I am very glad to hear that the minister has committed to progressing the development of a peak body.

Just to make the point again, as I did a couple of times yesterday, there are a number of various organisations and individuals who have spoken with me about the need for these changes. It is difficult for me to elaborate on exactly who those organisations and individuals are here in this place, but people and organisations have certainly made those representations to me. I bring them forward based on those representations and with the intent of absolutely improving, not just the participation of Aboriginal and Torres Strait Islander people in decision-making but with a view to empowering their ability to lead and shape decision-making. That is the purpose of this amendment.

Again—and I know we continue to have this conversation—I think that that is a really important principle that could be changed, notwithstanding that there will be ongoing discussions and potentially a peak body set up into the future.

Ayes 20

Noes 23

Majority 3

Ms HILDYARD: I move:

Amendment No 9 [Hildyard–1]—

Page 6, after line 30 [clause 6, inserted section 12C]—Insert:

(4a) Without limiting subsection (4), before placing an Aboriginal or Torres Strait Islander child or young person under this Act with a person who is not an Aboriginal or Torres Strait Islander person, the Chief Executive must give proper consideration of the extent to which the person is committed to—

(a) facilitating contact between the child or young person and their family and community; and

(b) helping the child or young person maintain contact with their community and language group; and

(c) helping the child or young person maintain a connection with their Aboriginal or Torres Strait Islander culture; and

(d) preserving and enhancing the child or young person's sense of Aboriginal or Torres Strait Islander identity.

This is an amendment that has come about through similar consultation and with a desire—as has been the case with other amendments—to ensure that Aboriginal and Torres Strait Islander children, young people, their families and communities can lead decision-making in relation to every issue that impacts an Aboriginal or Torres Strait Islander child or young person, and not just placement but all issues. This amendment particularly goes to what happens when the chief executive makes a decision about where an Aboriginal or a Torres Strait Islander child or young person may be placed.

The changes that I am proposing with this amendment will make sure that the chief executive absolutely considers very deeply and properly the facilitation of contact between the Aboriginal child or young person and their family and community, that the chief executive helps in every way possible the Aboriginal child or young person to maintain the best possible and most robust contact with their community and with their language group, that the chief executive does all that they can to help the Aboriginal or Torres Strait Islander child or young person to maintain a connection with their Aboriginal or Torres Strait Islander culture and that they have the best possible opportunity to preserve and enhance the Aboriginal or Torres Strait Islander child or young person's sense of identity.

As I said, the principle that sits behind this particular amendment is similar to the principle that I have spoken about before in relation to previous amendments. However, this particular use of the principle in relation to this clause is about the circumstance, the process and the consideration that are given or engaged in by the chief executive when they are considering the placement and what supports, processes and connections can sit around that particular decision to ensure all those things happen in the way that I have just described to the house.

I absolutely recommend this amendment and again say, perhaps in anticipation of what the minister may say as she has spoken about in relation to other clauses, that yes, I do understand her work to develop the peak body, but again I seek to make changes as a result of representations that have been made to me and as a result of the desire to make sure that we do implement that principle that I have spoken about at length in relation to other amendments.

The Hon. R. SANDERSON: The member for Reynell and I are both on the record stating that this is an important topic. We both furiously agree that this is important, and Aboriginal voices and Aboriginal leadership are incredibly important in the Aboriginal placement principle. However, what we disagree on is a timing issue. I have committed to—and it is legislated—a full review in 2022 on this bill, and I see that as the ideal opportunity to have broad-ranging consultation where all Aboriginal voices can be heard on this topic, and get it refined.

I believe we have a good piece of legislation that has been consulted on. I think to make any changes now would be the wrong way to go about it. I think we should do full and extensive consultation, and that would be next year, and then we can make further changes. I am more than happy to make changes but they need to be done after full consultation, so I will be opposing the amendment.

Ms HILDYARD: I will again make the point that I made yesterday. I know that this particular review of the act that brings us to debating this bill has taken some time. I think it is a little over a year overdue. I note that in the minister's comments yesterday she spoke about the fact that a future review would happen over a period of time, which would mean that it would conclude around October 2022. I think it would then take some time, as it has in this case, to develop a bill.

If we are looking at 18 months to two years, I think these principles are too important not to include in this particular bill in this particular discussion. Notwithstanding that, of course I support ongoing discussion and consultation, but I do think that these particular principles that I have put forward, based on representations made to me, are incredibly important to progress sooner than in that time frame that the minister outlined yesterday.

The Hon. R. SANDERSON: I put on the record—because I was the shadow minister in 2017 when the former Labor government brought this original legislation to parliament—that the stakeholders wanted broader representation and greater importance for the Aboriginal placement principle. The Labor government completely ignored that. We have taken the opportunity to expand it. We have significantly expanded and increased the importance of the Aboriginal placement principle, despite that the government that brought this bill in ignoring those calls.

We have made a very, very good attempt here, with consultation, at expanding that and increasing the importance of the Aboriginal placement principle. It is ironic now that Labor in opposition want to change certain words when they did not even put them in originally, because the same people who are telling them this now were the same people who told me in opposition and were completely ignored by Labor.

As I have stated, we will do a full consultation. We will do a proper consultation where we will actually listen and we will respond to that consultation. That is due, by legislation, next year in 2022. I will be opposing this and all the other amendments to this clause, and I have clearly stated my reasons why.

Ms HILDYARD: I will make a couple of points and say again, as I did yesterday, that I certainly am very keen for us to continue to engage in a respectful discussion around these particular clauses. There has been no attempt by me not to listen to particular groups; in fact, quite the opposite. I have listened to particular organisations and particular individuals, and I take what they have said to me incredibly seriously. What they have raised is incredibly important, hence why I have developed these amendments. There is certainly no sense of not listening to anyone, but quite the opposite. That is exactly why I have brought these amendments.

I will say again that I think these are incredibly important principles to enshrine in the legislation now. I also look forward to ongoing discussion about other improvements that we can make in due course. But I do think that it is urgent that we make changes that we can when we have this bill in front of us now.

The committee divided on the amendment:

Ayes 20

Noes 23

Majority 3

Amendment thus negatived.

Ms HILDYARD: I move:

Amendment No 10 [Hildyard–1]—

Page 7, line 2 [clause 6, inserted section 12C(7)]—Delete 'the placement of' and substitute:

decisions involving, affecting or relating to

Amendment No. 10 has a similar principle to the other amendments I have moved—that is, to ensure that Aboriginal and Torres Strait Islander children, young people, their families and communities are involved in decisions involving, affecting or relating to Aboriginal and Torres Strait Islander children and young people rather than simply decisions in relation to the placement of Aboriginal and Torres Strait Islander children and young people.

Amendment negatived.

New sections 12D and 12E.

Ms HILDYARD: I move:

Amendment No 11 [Hildyard–1]—

Page 7, after line 18 [clause 6, after inserted section 12C]—Insert:

12D—Aboriginal Cultural Identity Support Tool and Aboriginal Life Story Book

(1) The Chief Executive must ensure that an Aboriginal Cultural Identity Support Tool and an Aboriginal Life Story Work is prepared and maintained in accordance with this section in respect of each Aboriginal or Torres Strait Islander child or young person placed under the guardianship the Chief Executive for a period of 6 months or more.

(2) The preparation (including determination of the contents) of an Aboriginal Cultural Identity Support Tool and an Aboriginal Life Story Work—

(a) must be led by the Aboriginal or Torres Strait Islander child or young person to whom it relates, their family and community; and

(b) must be undertaken having regard to the provisions of this Part (in particular the partnership and participation elements of the Aboriginal and Torres Strait Islander Child Placement Principle) and the principles of partnership decision-making.

(3) The regulations may make further provisions in relation to Aboriginal Cultural Identity Support Tools and Aboriginal Life Story Works.

(4) In this section—

Aboriginal Cultural Identity Support Tool, in respect of an Aboriginal or Torres Strait Islander child or young person, means a personalised tool or plan (however described) of a kind determined by the Chief Executive for the purpose of ensuring that the cultural needs of the child or young person are met;

Aboriginal Life Story Work, in respect of an Aboriginal or Torres Strait Islander child or young person, means a book—

(a) setting out (having regard to subsection (2)) such of the following information as may be known to the Chief Executive:

(i) any cultural and kinship groups relevant to the Aboriginal or Torres Strait Islander child or young person;

(ii) such other information as may be prescribed by the regulations; and

(b) containing (having regard to subsection (2)) a copy of such of the following as may be available to the Chief Executive:

(i) the Aboriginal or Torres Strait Islander child or young person's birth certificate;

(ii) letters and artworks from the Aboriginal or Torres Strait Islander child or young person's families and carers;

(iii) the Aboriginal or Torres Strait Islander child or young person's family tree, or genogram information about their cultural background;

(iv) photographs recording significant events in the Aboriginal or Torres Strait Islander child or young person's life;

(v) such other documents as may be prescribed by the regulations.

12E—Family group conferencing

(1) Subject to this section, the Chief Executive, before making a significant decision under this Act involving, affecting or relating to an Aboriginal or Torres Strait Islander child or young person—

(a) must, if it is reasonably practicable to do so, convene a family group conference under Chapter 4 Part 2 in respect of the Aboriginal or Torres Strait Islander child or young person; and

(b) must, if it is reasonably practicable to do so, attempt to make voluntary arrangements for the care of the Aboriginal or Torres Strait Islander child or young person with the people present at the family group conference; and

(c) if it is not possible to make such voluntary arrangements, must have regard to any submissions made at the family group conference in the course of making decisions of the relevant kind in respect of the Aboriginal or Torres Strait Islander child or young person.

(2) Subsection (1) does not apply in relation to a particular decision if a family group conference has previously been convened in respect of the child or young person, and arrangements in relation to decisions of the relevant kind have made at that conference.

(3) Nothing in this section limits the circumstances in which the Chief Executive or the Court can convene a family group conference under Chapter 4 Part 2.

(4) To avoid doubt, the Aboriginal and Torres Strait Islander child or young person, their family and community should lead decision-making in a family group conference.

(5) This section does not displace, and cannot be used to justify the displacement of, section 7 or 12B.

There are different elements in this amendment, but the principle that I am trying to uphold and ensure is in the bill is the same as has been the case for other amendments. This particular amendment is about a particular issue.

Members will be able to see the definition at new subsection (4)—Aboriginal Cultural Identity Support Tool and Aboriginal Life Story Work. This amendment is about making sure that the chief executive ensures that an Aboriginal Cultural Identity Support Tool and an Aboriginal Life Story Work are prepared and maintained in accordance with this section in respect of every Aboriginal or Torres Strait Islander child or young person who is placed in the guardianship of the chief executive for a period of six months or more.

Similarly, the preparation and a determination about the contents of an Aboriginal Cultural Identity Support Tool and Aboriginal Life Story Work, as I have spoken about in relation to other amendments, must be led by the Aboriginal or Torres Strait Islander child or young person to whom that particular Aboriginal Life Story Work or Aboriginal Cultural Identity Support Tool relates and their family and community.

Whilst this amendment talks about the particular tools as they are defined in this amendment, again the principle is the same, that this amendment is about ensuring that the preparation and what is in each of those tools is determined by the Aboriginal or Torres Strait Islander child or young person and their family and community. As I said, the definition is there in the amendment.

The Aboriginal Life Story Book is an individualised book that explains and records an Aboriginal or Torres Strait Islander child's cultural and kinship groups, elders and family tree, amongst other things. I think that it is an incredibly important tool, maintained and used to correctly identify a child's cultural group, which really assists or is designed to assist in helping that child to engage with their culture.

Amendment No. 11 ensures that the compilation of the book, as I said, is led by the Aboriginal or Torres Strait Islander child or young person to whom it relates, their family and community. Again, this amendment is all about ensuring that Aboriginal and Torres Strait Islander families, in partnership with state authorities, are the driving force in the care and protection of an Aboriginal or Torres Strait Islander child or young person. The regulations may make further provisions in relation to the Aboriginal Cultural Identity Support Tool and Aboriginal Life Story Work, regulations on which I am sure Aboriginal and Torres Strait Islander community members can provide input, advice and information going forward.

I recommend this incredibly important amendment to the committee. As I said, it sets out two particular tools to be used, but it also sets out the way they are to be used. The way they are to be used is in accordance with the principle that I have outlined previously in this house—that is, that Aboriginal and Torres Strait Islander children, young people, their families and communities are the leaders, the driving force, as those tools are developed, maintained and prepared and as the contents in those particular tools are determined. I recommend the amendment to the committee.

The Hon. R. SANDERSON: Again, I agree with the member for Reynell. These are both very, very important tools. They are exactly that: they are tools. The Aboriginal Cultural Identity Support Tool and the life books are already being used, and I have seen many copies of these. They are being used. They are a practice piece. They are practice tools, which means they are subject to change. They are not suited to be in legislation because they are operational.

Whilst I agree and we are already using these Aboriginal life story books, we are also using family group conferencing, as I have already stated. The former Labor government announced it, did not fund it and did not implement it—we are. We are aiming to roll that out even further and more extensively over time because I do believe family group conferencing is a wonderful tool—and it is exactly that. They are tools. They are practice tools. This is operational and they are not required in legislation, so I will be opposing this.

Ms HILDYARD: Thank you, minister. You reminded me that I also have a few words to say about family group conferencing, which I did not mention before. The minister is right: family group conferencing is really important. It is a proven method of resolving issues in the best possible way in relation to child protection and, importantly, to child wellbeing.

As the minister and others in the house would know, a conference involves the family and community of the child in determining how best to protect that child and to ensure they are given every opportunity to be safe, well and enabled to mentally, emotionally, physically and culturally thrive.

If a family group conference is not practicable, efforts must be made to receive submissions from the family. In either case, it is incredibly important—it is crucial—that Aboriginal and Torres Strait Islander children and young people, their families and communities again lead decision-making in those family group conferences and also lead in terms of decisions that are made about who participates in those conferences, how they take place and how they are structured. That is what this amendment is focusing on.

The Hon. R. SANDERSON: Just to confirm, I believe family group conferencing is already in the legislation. I believe and our government believes it should be available to both Aboriginal and non-Aboriginal people. It is already in the act and it is available. As I have stated already several times, the Liberal government is the first government to fund family group conferencing, and we have recently expanded that to include pregnant mothers to also have access to family group conferencing. Wherever there is money available, I most certainly will continue to expand the use of family group conferencing. I do agree it is a wonderful tool and we continue to use it.

The committee divided on the new sections:

Ayes 18

Noes 23

Majority 5

New sections thus negatived.

The CHAIR: The question before the Chair is that clause 6 stand as printed. All those in favour say aye.

Ms HILDYARD: Can we ask questions about the substance of clause 6?

The CHAIR: You can. I have not put the question yet, or called the question at least. We are dealing with clause 6 as printed, so you are welcome to ask questions on clause 6 as it is.

Ms HILDYARD: Minister, in relation to clause 6, could you please advise whether consultation has occurred with Nunga Babies Watch about any aspect of this clause, and, if you did consult them, what their feedback was in relation to the changes that you have made in the bill in relation to clause 6? If it is the case that you did not consult them, could you please outline why they were not consulted?

The Hon. R. SANDERSON: As I have outlined previously, we had a targeted consultation and I have read into Hansard the list of people who were consulted. I am more than happy to include everybody, including putting it on the YourSAy website next year when we do a full consultation process. This was an interim consultation. We know there is a legislative full review required in 2022. This was a targeted approach and, no, they were not included in that. However, when we do a full review next year, I am more than happy for everybody who wants to be heard to be included in that.

Ms HILDYARD: Minister, could you please explain specifically how you think the changes you have made to the bill at clause 6 will reduce the incidence of Aboriginal and Torres Strait Islander babies being removed at birth? How do you think this clause and your changes to it will actually assist with that absolutely crucial issue?

The Hon. R. SANDERSON: The challenges of Aboriginal over-representation have been longstanding, as we know, and are very important for government to turn its mind to, and we certainly are. This requires a generational commitment. This Liberal government has made significant progress already. Clause 6, regarding the Aboriginal and Torres Strait Islander children and young people placement principle, is one of those steps.

As I stated earlier, we have also committed $200,000 from my department to scope, organise and consult on an Aboriginal peak body to represent Aboriginal children and young people. This is something that has been called for by the Aboriginal community for several decades, I am told, and nothing was done. This government is acting on that.

Through our whole-practice approach, we are listening to the voice of the Aboriginal people. We have an Aboriginal consultant, Tracy Rigney, who looks at all our policy and practice through the lens of an Aboriginal person to ensure that it is culturally safe and culturally appropriate for Aboriginal children. We have the Reconciliation Action Plan. We have the Aboriginal Employment Strategy. We have over 5.2 per cent Aboriginal employment in our department—that is one of the highest in all the state government departments—and we have a goal of 10 per cent.

We have a commitment to Aboriginal community-controlled organisations. We almost doubled our commitment. We had a commitment of 3 per cent. It was somewhere around 5.2 per cent of procurement through Aboriginal community-controlled organisations. We continue to aspire to do more. We are continuing to engage with Aboriginal community-controlled organisations to help them build capacity so that we can have more community-led decision-making.

This government is absolutely committed to ensuring that Aboriginal people have self-determination over their children, their future, the community, and we are doing that in a measured, sensible approach and we continue to do that. As I have said, the peak body is another area that we are working on currently. There is a lot more. However, I do not have all of the things we are doing but we are doing a lot in this area and this is just part of our commitment.

Ms BEDFORD: Minister, I am sorry, I was not in the room for the last division. Prior to that, one of the things you mentioned this morning was working with Aboriginal women who are pregnant so that the supports are going into place beforehand. Could you elaborate more on that because that is really to the heart of the member for Reynell's question? What other initiatives are embedded in this strategy around this bill?

The Hon. R. SANDERSON: I thank the member for her question. We have invested in the family group conferencing. That was expanded. That is currently with Relationships Australia (South Australia) and expanding with Aboriginal Family Support Services (AFSS) as well. That has expanded to include pregnant mothers. We also, through DHS, have our Intensive Family Support Services, particularly in the west which is with KWY, working with families to prevent that removal.

We know that keeping children with their families is the best outcome, wherever that is safe to do so, so this government is investing in Intensive Family Support Services to prevent the removal. We are also working with family group conferencing to support and get the structures around the family and we are also investing in reunification. We announced late last year the Newpin reunification model which will be pivotal to supporting families to reunify.

Progress reported; committee to sit again.

Sitting suspended from 13:00 to 14:00.