Bills

Children and Young People (Oversight and Advocacy Bodies) (Commissioner for Aboriginal Children and Young People) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 2 December 2020.)

Ms HILDYARD (Reynell) (11:01): I rise today to speak to the Children and Young People (Oversight and Advocacy Bodies) (Commissioner for Aboriginal Children and Young People) Amendment Bill 2020 and to indicate that I am the lead speaker for the opposition on this bill.

This bill provides the legislative framework to set up and underpin the Commissioner for Aboriginal Children and Young People role. I indicate that Labor is broadly supportive of the bill. We flagged introducing a similar role prior to the last election and we are pleased that the position has progressed, and we are also very appreciative of the important work that the commissioner undertakes.

Labor intends to propose a small number of amendments that we believe will further strengthen the commissioner's role. These amendments include inserting a new provision to enable an advisory committee to be appointed by the commissioner in all areas but particularly so in matters relating to the wellbeing, safety, care and protection of children and young people. It is vital that Aboriginal people lead decision-making processes concerning Aboriginal children and young people.

We are also proposing a new provision to provide for mediation between the two children's commissioners to enable them to determine who best responds to particular issues before a matter is escalated to the minister. There is currently no provision for mediation before a matter is escalated as such. This amendment focuses on inserting a clause requiring the two commissioners to develop a memorandum of understanding about notification and discussion of the exercise of their respective powers.

Finally, we are proposing an amendment to not only ensure that the commissioner is an Aboriginal person but that they also have demonstrated experience in systems affecting Aboriginal children and young people. I believe these are sensible amendments that will only enhance the government's bill, strengthen the commissioner's remit and role and ensure that Aboriginal people are more deeply engaged in processes relating to the wellbeing, safety, care and protection of Aboriginal children and young people.

Appointed in December 2018, inaugural Commissioner April Lawrie is deeply dedicated to improving the lives of Aboriginal children and young people and to empowering the voice of Aboriginal children and young people, their families and their communities. Ms Lawrie has raised a number of important systemic issues impacting Aboriginal children and young people, and she tirelessly advocates for awareness about these issues and for resolution.

Commissioner Lawrie, a Mirning and Kokatha woman from the Far West Coast of our state, has relentlessly and rightly used her independent position and her voice to promote the rights and wellbeing of Aboriginal children and young people in South Australia. This includes, rightly, working to ensure that government places Aboriginal children within their family or cultural group before placing them with non-Aboriginal families. Currently, just 31 per cent of Aboriginal children in care are being placed within their family and kinship group.

The commissioner's role is one that is desperately needed, given one in 11 Aboriginal children in South Australia is in state care. As a proportion of the total population of children in care, 36.7 per cent (1,519) children in state care in South Australia are Aboriginal. The Guardian for Children and Young People's recent shocking report showed that this number is growing. It stated that there is a continued worsening rate of Aboriginal children and young people being drawn into the child protection system, indicating that South Australia will not meet its Closing the Gap target without significant reforms.

The same report showed that just 23.3 per cent of young Aboriginal offenders are being diverted away from the courts, compared with 55.6 per cent of non-Aboriginal young people, the lowest number since records began. Along with Commissioner Lawrie, the Commissioner for Aboriginal Engagement, Dr Roger Thomas, has also highlighted in his report to parliament last year the need for a more stringent focus on supporting Aboriginal children and families.

Despite the deeply worrying figures in the guardian's report, just a few weeks ago in this place the Minister for Child Protection sadly refused to accept any of Labor's amendments to the Children and Young People (Safety) (Miscellaneous) Amendment Bill to enable Aboriginal families and communities to be more meaningfully engaged in the child protection process—a very disappointing refusal.

It is clear that much more needs to be done in terms of early intervention and prevention. Recent tinkering by the government with the Aboriginal Family Scoping Unit and the Infant Therapeutic Reunification Service has not helped. Young Aboriginal women must be engaged with early in their pregnancy so that they have the appropriate supports around them as they raise their children. Aboriginal families and communities must also and always be engaged in and enabled to lead processes to support vulnerable children and their families. We must always listen to Aboriginal community members and ensure that their voices are absolutely at the forefront of decisions relating to Aboriginal children and young people.

The commissioner will continue to focus our collective attention on this. I feel privileged to work alongside her, and I am deeply grateful for the wealth of knowledge, connection, compassion and understanding that she brings to this crucial role. I thank her and her office for her extraordinary, impactful and thoughtful work to date. Again, we support this bill. We also hope that the government carefully considers these very well-intentioned amendments.

Ms LUETHEN (King) (11:08): I rise to support the Children and Young People (Oversight and Advocacy Bodies) (Commissioner for Aboriginal Children and Young People) Amendment Bill 2020 introduced by the Minister for Education and thank him for his commitment to delivering world-class education for every child in South Australia.

An election commitment was made to establish a Commissioner for Aboriginal Children and Young People in South Australia. This would include powers and functions to conduct inquiries and to promote the safety and wellbeing of Aboriginal children and young people. The current Commissioner for Aboriginal Children and Young People, Ms April Lawrie, was appointed under section 68 of the Constitution Act 1934 on 15 October 2018.

This bill will establish legislative provisions for the Commissioner for Aboriginal Children and Young People, equivalent to those of the Commissioner for Children and Young People as they relate to Aboriginal children and young people. This is consistent with findings of the statutory review of the Children and Young People (Oversight and Advocacy Bodies) Act 2016 and stakeholder feedback, which recommended that the Commissioner for Aboriginal Children and Young People be legislatively reserved for an Aboriginal person, have equal standing with the Commissioner for Children and Young People, and be granted the power to conduct own-motion inquiries.

Two other Australian jurisdictions, Victoria and Queensland, currently have commissioners for Aboriginal and Torres Strait Islander children and young people. Under the proposed legislation, the commissioner would be able to conduct independent inquiries and formal investigations into issues brought to her office's attention. She would also have the authority to advise and make recommendations to government ministers, state authorities and other non-government bodies on matters relating to Aboriginal children, as well as to ensure that the state is held accountable to international obligations under the rights of First Nations children.

The minister has told parliament that Aboriginal children are disproportionately represented within the state's most disadvantaged and vulnerable children and youth. He said they were more likely than non-Aboriginal children not to attend school and generally be poorer in health. As a government, as a community, as a state, we must do more to improve the outcomes for Aboriginal children and young people. The Commissioner for Aboriginal Children and Young People will provide a voice for Aboriginal children and young people in this state to have greater agency in the making of decisions that affect their lives and can improve their lives.

This has been a long time coming, and it certainly marks a huge step forward for South Australia and Aboriginal and Torres Strait Islander people. The new commissioner's term ends in December this year. The government bill specifies that her replacement must be an Aboriginal person. I commend the Minister for Education for progressing this bill. I call for support from others in this house to support the bill, empowering the commissioner to act on behalf of the best interests of Aboriginal and Torres Strait Islander people, and I thank both the minister and the Premier, who have been displaying leadership on this front.

It is important that we address together systemic issues highlighted by the commissioner. Every South Australian child equally deserves the opportunity to reach their full potential, and we must be working together across this house to remove any impediments and to drive change so that more early intervention initiatives and whatever the commissioner has called for are put into place to pave the way for the future.

It was important, insightful and so valuable earlier on to hear from South Australia's Commissioner for Aboriginal Engagement, Dr Roger Thomas, in his first address to the House of Assembly as part of a new voice to parliament initiative. This has to keep happening. Dr Thomas has been reporting on work underway to reform how Aboriginal communities engage with the government, and he is also giving them a much more powerful voice. Each of these steps we are taking forward is important, and I commend this bill to the house.

The Hon. J.A.W. GARDNER (Morialta—Minister for Education) (11:13): I thank members for their contributions to the debate. I thank the member for King for her lovely words, I thank the member for Reynell for her contribution, and I thank the opposition for their indication of support for the bill. The member for Reynell indicated in her second reading remarks that the opposition would be suggesting some amendments. I indicate for the record that I was advised, just prior to the resumption of parliament this morning, that the opposition would be tabling amendments, but I have not had the opportunity to read them yet.

However, I propose that when the parliament does upon the second reading go into committee, while the government will not be in a position to support any amendments offered by the opposition this morning, not having yet read them, we will give some consideration to those amendments between the houses, should the house support the government in not accepting those amendments at this stage. They relate to issues that have had some consideration, up until this point certainly, and the specific mechanisms proposed for things like resolving a disagreement or a memorandum of understanding between commissioners in the roles that they have. We are certainly very happy to look at those suggestions.

I note that the state budget is due to be progressed, or certainly introduced, in this house in the next parliamentary sitting week. I would be loath to defer consideration of the bill by the Legislative Council any further and I hope that members will support its passage this week in the positive spirit of bipartisanship, as I believe we are all seeking to enhance the position of Aboriginal children and young people in their lives, in their self-confidence, in their welfare and in their success and prosperity in life. I do believe this is a role that will help that.

The position of the Commissioner for Aboriginal Children and Young People has existed under provisions allowed in the Constitution Act since the end of 2018. I am very proud to be the minister responsible for this area of public policy and instituting the first Commissioner for Aboriginal Children and Young People here in South Australia. We looked around Australia at other models that were either in place or proposed and there was a series of consultation in 2018. We settled at that time on a model that used the existing legislative framework for the Commissioner for Children and Young People and under provisions in the Constitution Act, enabling the appointment of a person to be the Commissioner for Aboriginal Children and Young People and work collaboratively with the commissioner.

I think that there are opportunities for enhancement. Richard Dennis, a former head of parliamentary counsel, who would be well known to members, led a review of the act. That took place a couple of years ago now. Indeed, we have been interested in his recommendations, in particular in relation to legislating for a commissioner for Aboriginal children and young people. We settled on the view that it was necessary to provide standalone legislation to have these powers enunciated and legislated. The mechanisms have been subject to further consultation, feedback and review, and the bill has come to the house. I am pleased that it is now on a passage to progression.

Once more, I thank all parties for their interest in the debate and I thank parliamentary counsel. In particular, I thank the education department legal policy unit, which has supported the development of the legislation and has provided briefings to other members, and Sarah Hennessy in my office, my adviser, who has assisted through this process. I am looking forward to the passage of the bill and I commend the second reading to all members.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

Ms HILDYARD: I have just received from your office a list of who was consulted during the preparation of the bill, which is very helpful, so thank you very much for that. I am interested to understand a little more about the consultation process, particularly about what feedback was given on the bill as a whole and also whether particular issues were traversed about the Commissioner for Aboriginal Children and Young People's ability to set up committees and to mediate, etc., with the Commissioner for Children and Young People.

The Hon. J.A.W. GARDNER: The range of stakeholders that were consulted provided a range of views on different aspects of the bill. There was, I would say, a significantly positive tenor to the proposal for there to be a bill. People had suggestions, and some of those had the opportunity for reflection.

The current Commissioner for Aboriginal Children and Young People certainly suggested a provision be included in the bill to enable the commissioner to appoint an advisory committee similar to the Child Development Council's provision. We have had advice from the boards and committees section of the Department of the Premier and Cabinet that such committees as the commissioner was proposing could be established administratively without the reference needed in legislation.

Ms HILDYARD: In terms of the part of my question about the ability for mediation to occur between the two commissioners, did that issue come up specifically in feedback and also, particularly, the ability for mediation to occur prior to the elevation to the minister of decisions relating to matters that could best be resolved through that mediation?

The Hon. J.A.W. GARDNER: Through the consultation process, the Commissioner for Aboriginal and Young People did suggest the bill include a provision requiring referral of a dispute to mediation prior to referral to the minister. I have been advised of the view that, under the bill as it is, commissioners can choose to engage in mediation if they are unable to resolve who should conduct an inquiry and that does not require legislation.

I feel I should put it slightly into further context. This whole process, with or without mediation, only arises in the event of the conversation between the commissioners on who might undertake specific inquiries being unable to resolve the process. I have every confidence that whether the commissioners are the current ones or any future ones, the range of work that they will do will sometimes, but I imagine rarely, overlap to the specificity of two proposed inquiries taking place at the same time in a way that would provide some level of challenge to the success of either inquiry to proceed.

The range of public policy available for both commissioners to undertake their work on at any one time is significant. It is possible that they both might be narrowly interested in the same issue at the same time. In that circumstance, I would propose that the first port of call would be for them to discuss the matter and who would be best placed to conduct an inquiry first. If there were a slight variance in the thing that they were inquiring into, it would be quite seemly for them to do in a timely fashion one and then the other, or potentially combine the scopes of their proposed inquiry into one.

It is only in the circumstance where the two remain in dispute and being unable to resolve that through a professional courtesy or through a conversation, if you like—to use the technical term—that you would need to have the dispute escalated to somebody to decide. It would be available to them without it being in the legislation for mediation to be proposed at that time. I have just been handed a copy of amendment No. 9, which talks about requiring that mediation take place between that conversation and the dispute resolution process, and we will consider that additional matter between the houses, as I have suggested, should the amendment not gain the support of the majority of this house.

Instinctively, my own view is that I do not think it is necessary. In the rare circumstances where there is an overlap in proposed inquiries at the same time, the commissioners would be able to resolve that professionally. Were there an inability to do so, I would imagine there is the possibility of mediation, if they wanted it but, otherwise, moving onto a decision-maker to make the decision so they can get on with whatever inquiry is proposed would be a preferable solution.

Clause passed.

Clause 2.

Ms HILDYARD: Minister, could you explain why it has taken until June 2021 for this bill to be presented and debated, given the Commissioner for Aboriginal Children and Young People was appointed in December 2018?

The Hon. J.A.W. GARDNER: There was a discussion about whether to rush a bill into the house in 2018 and try to have it legislated from the start. Consultation that took place at that time identified a range of different suggestions as to how the legislation should work, and the government formed a view that, when we had advice that we were able to make an appointment without the legislation and start the work of the commissioner without the legislative framework, other than that which already existed, that would be a preferable alternative.

It also provided the opportunity for the commissioner to start that work to provide feedback on any future legislative framework, as has indeed taken place, for us to utilise the opportunity that was coming with the Dennis review of the oversight and advocacy bodies legislation to inform the creation of that legislation. By my recollection, we were looking at what form that legislative process might take in 2020 when a bill was formed. There is no doubt that we would have been here some months ago were it not for the pandemic. Certainly, I was hoping to have the bill through in the last calendar year.

The priorities placed on the parliament by the pandemic should not in any way lessen the priority the government puts on the work of the Commissioner for Aboriginal Children and Young People. The position we are in, though, is that the Constitution Act has given us the opportunity to have a Commissioner for Aboriginal Children and Young People appointed and doing her work from December 2018 to December 2021. The time frame I would suggest that is absolutely necessary to have this bill through the house in order for the regulations to be drafted is certainly by December. I would not want to be using the Constitution Act again to make an appointment when we have the opportunity of this legislation having the framework to identify the role going forward.

It is unfortunate that it has taken a little bit longer than had been hoped, but, in the absence of this legislation having been passed, the intent of this legislation has been very clear for some time—giving some security and confidence to the community of the importance of this position so April Lawrie can go about doing her work at the moment and for the last period knowing that the position would have this status and that was on its way.

Secondly, I think the other important part is that the work has been able to be undertaken under the current arrangements. We think these arrangements will be better when we are in a position at the end of the current term of employment to have either a new appointment or a reappointment going forward, but that will be under the new legislative framework.

Ms HILDYARD: Minister, could you talk a little bit about why this act and therefore the Commissioner for Children and Young People and the Commissioner for Aboriginal Children and Young People are both committed to you, rather than the Minister for Child Protection, as is the Guardian for Children and Young People? Could you talk a little bit about why that decision was made, why that is so and how those departments interact in relation to particular issues that will arise relating to matters that I imagine both departments would contemplate?

The Hon. J.A.W. GARDNER: To be clear, the Commissioner for Aboriginal Children and Young People and the Commissioner for Children and Young People are not just interested in matters of child protection, nor are they just interested in matters of education; they are also interested in matters relevant to the Department of Human Services, the Attorney-General's Department, the Department of the Premier and Cabinet, Aboriginal Affairs and Reconciliation, the Department for Health, the Department for Innovation and Skills, the Department for Trade and Investment and the Department for Transport. There are things that are happening in local government that are relevant for children and young people and the way we define spaces.

The Guardian for Children and Young People reports through the Minister for Child Protection because her role is specific to children under guardianship. Her role is policy focused, laser like, on the responsibilities of the minister to whom she reports. The remainder of the oversight and advocacy bodies reports to me because there is a significant level of strength in the Department for Education's external relations unit that is able to provide a level of administrative support to that range of bodies, but they do not take their work plan from me; they have statutory independence.

From a public policy point of view, I would suggest that they could sit quite comfortably with the departments of the Attorney-General, the Minister for Human Services or the Premier as easily as the Department for Education. I think it would actually be problematic in some ways for them to fit into child protection because child protection has such a narrow focus on supporting that particular cohort of vulnerable children.

Indeed, from a public policy point of view, not just the Commissioner for Children and Young People and the Aboriginal children's commissioner but also other bodies fit into the Children and Young People (Oversight and Advocacy Bodies) Act. For example, the Child Death and Serious Injury Review Committee is engaged with education, child protection, health and human services on a very regular basis and Attorney-General, corrections and police. The Child Development probably has a higher level of engagement with education but also with health and human services and some of the others as well.

The point I make is that they fit very neatly within education from an administrative point of view. Indeed, having them grouped together in education probably makes the most sense from that administrative point of view. I enjoy a positive working relationship with all those oversight and advocacy bodies. I enjoy getting the opportunity to be informed, challenged and advised. I appreciate their assistance from time to time on things where they are keen to help the government in delivering on our ambition for every child and every young person in the state to be supported in their education, to grow their education.

Their interaction with the child protection department I see as a positive opportunity as one of the departments that they are interested in, but they are also interested in health, innovation and skills, transport, human services and indeed, from time to time, the policy decisions and levers that happen within education as well.

Ms HILDYARD: I appreciate the explanation and understand the points you have made. I also concur that of course they are independent statutory bodies that will create their own work plans and directions, etc. The bit of the answer that I am not quite clear on is the Guardian for Children and Young People and why that is under the remit, for want of a better word, of the Minister for Education, because, as you just said, they are required to have a laser-like focus, I think were the words that you used, on child protection matters broadly relating to children in care.

I appreciate the comments you have made about the two commissioners, but I am a little confused about why the Guardian for Children and Young People also sits in education, particularly given your comments about the focus that is required on child protection.

The Hon. J.A.W. GARDNER: That is why the guardian reports to the Minister for Child Protection. Administratively, there is an administrative level of support effectively for the office that comes through the Department for Education's external relations directorate, because they handle the office arrangements and liaise on budget matters with Treasury for all of the oversight and advocacy bodies. The circumstance started at the end of the previous government when the then Minister for Education and Child Development, as it was, had responsibility for all manner of things: training, TAFE, education, skills, higher education and child protection. That was not working out so well. We took a different view.

We thought we should have a specific dedicated minister for child protection, and in the machinery of government arrangements, when the adjustment was made to reflect that we wanted the oversight and advocacy bodies to be moved to remain with the Department for Education while indeed many of the other functions were split off into the discrete Department for Child Protection, it was determined that the Guardian for Children and Young People, having such a focus on children in care, should remain reporting through the Minister for Child Protection, and that is the state of affairs that we have now.

Ms HILDYARD: I have a very quick point for clarification. I think the reason I am confused about this is that from memory—and I will double-check this—during the estimates process, when I tried to ask the Minister for Child Protection a number of questions relating to the role of the Guardian for Children and Young People, and particularly in relation to community visits, from memory (again, I will check the exact content of that), it was referred back to the Minister for Education as being under your remit.

The Hon. J.A.W. GARDNER: In relation to community visitors, there was also another hat that the guardian would have been wearing and that was one in which she was relating to the youth training visitor and that reports to the Minister for Human Services. As I say, there is an administrative arrangement because the Department for Education external relations directorate handle accommodation and budget arrangements for all the oversight and advocacy bodies.

On a policy point of view, reporting to the house, indeed, providing advice in relation to policy matters that are relevant to her portfolio, the guardian reports to the Minister for Child Protection. I would categorise the relationship with education as administrative in the sense of office accommodation, financial and lease arrangements and those sorts of things. I think in terms of identification of policy suggestions or the arrangement of how children in care are supported or unique cases that are to be brought to the attention of anyone, it is a relationship between the guardian and the Minister for Child Protection.

Clause passed.

Clauses 3 and 4 passed.

Clause 5.

The Hon. J.A.W. GARDNER: I move:

Amendment No 1 [Education–1]—

Page 4, lines 19 to 25 [clause 5(1), inserted definition of Aboriginal child or young person]—Delete the definition of Aboriginal child or young person and substitute:

Aboriginal child or young person means a child or young person who—

(a) is of Australian Aboriginal descent; and

(b) regards themselves as Aboriginal, or is regarded as Aboriginal by at least 1 of their parents or the relevant Aboriginal community,

and includes, for the purposes of this Act, a Torres Strait Islander child or young person and a reference to Aboriginal children and young people is to be construed accordingly;

This amendment, together with amendments Nos 2, 3 and 4 in my name, have been drafted in accordance with advice from Aboriginal Affairs and Reconciliation in the Department of the Premier and Cabinet. Amendment No. 1 proposes the following changes to clause 5: the term 'Indigenous' is replaced with 'Aboriginal', as the use of the term 'Aboriginal' is strongly preferred in South Australia. Secondly, the community recognition element of the definition is updated to reflect that Aboriginal children and young people may not live in the community to which they are connected.

The drafting of this definition, together with the others I have referenced, aligns with the nationally accepted three-part definition for Aboriginality—descent, self-identification and community recognition—and includes terminology that reflects the definition's operation within a South Australian context. The community recognition element to the definition relating to Aboriginal and Torres Strait Islander children and young people continues to be an optional rather than a required element, an adaption recommended by Aboriginal Affairs and Reconciliation in the Department of the Premier and Cabinet.

Aboriginal Affairs and Reconciliation has advised that requiring the community recognition element of the nationally accepted definition may not be appropriate for children and young people, as there may be instances where community confirmation may not be immediately attainable due to the impact of the stolen generation. Corresponding changes are made to the definition of a Torres Strait Islander child or young person by way of amendment No. 3, which we will get to.

Amendment carried.

The Hon. J.A.W. GARDNER: I move:

Amendment No 2 [Education–1]—

Page 4, after line 25 [clause 5(1)]—After the definition of Aboriginal child or young person insert:

Aboriginal person means a person who—

(a) is of Australian Aboriginal descent; and

(b) regards themselves as Aboriginal; and

(c) is accepted as an Aboriginal person by the relevant Aboriginal community,

and includes, for the purposes of this Act, a Torres Strait Islander person;

The bill provides that the Commissioner for Aboriginal Children and Young People and the Acting Commissioner for Aboriginal Children and Young People must be an Aboriginal person. These are the new sections 20B(3) and 20C(2) respectively.

The Aboriginal Affairs and Reconciliation unit has recommended that the bill include definitions of 'Aboriginal person' and 'Torres Strait Islander person' for the purposes of the Commissioner for Aboriginal Children and Young People and the Acting Commissioner for Aboriginal Children and Young People appointment provisions, and that all elements of the nationally accepted three-part definition of Aboriginality to be required: descent, self-identification and community recognition.

Amendment carried.

The Hon. J.A.W. GARDNER: I move:

Amendment No 3 [Education–1]—

Page 5, lines 2 to 8 [clause 5(4), inserted definition of Torres Strait Islander child or young person]—Delete the definition of Torres Strait Islander child or young person and substitute:

Torres Strait Islander child or young person means a child or young person who—

(a) is of Torres Strait Islander descent; and

(b) regards themselves as Torres Strait Islander, or is regarded as Torres Strait Islander by at least 1 of their parents or the relevant Torres Strait Islander community.

The amendment to the definition of Torres Strait Islander child or young person ensures consistency with the changes made by way of amendment No. 1 to the definition of Aboriginal child or young person. The term 'Indigenous' is removed and the community recognition element to the definition is updated to reflect that Torres Strait Islander children and young people may not live in the community to which they are connected.

Ms HILDYARD: I have just a very quick clarifying question. I presume that the consultation you outlined in relation to amendment No. 1 occurred in the same way in relation to this amendment and the next one as well.

The Hon. J.A.W. GARDNER: I am advised that is the case.

Amendment carried.

The Hon. J.A.W. GARDNER: I move:

Amendment No 4 [Education–1]—

Page 5, after line 8 [clause 5(4)]—After the definition of Torres Strait Islander child or young person insert:

Torres Strait Islander person means a person who—

(a) is of Torres Strait Islander descent; and

(b) regards themselves as Torres Strait Islander; and

(c) is accepted as a Torres Strait Islander person by the relevant Torres Strait Islander community.

As discussed in relation to amendment No. 2, which inserted a definition of Aboriginal person into the bill for the purposes of the Commissioner for Aboriginal Children and Young People and the Acting Commissioner for Aboriginal Children and Young People appointment provisions, the Department of the Premier and Cabinet Aboriginal Affairs and Reconciliation unit has recommended that the bill include a definition of 'Torres Strait Islander person' for the purposes of these appointment provisions.

The drafting of the definition of 'Torres Strait Islander person' is consistent with that of 'Aboriginal person' and requires all elements of the nationally accepted three-part definition for Aboriginality: descent, self-identification and community recognition.

Amendment carried; clause as amended passed.

Clause 6.

Ms HILDYARD: If it is okay, I will combine a couple of questions that are about clause 6(1), (2) and (3). I am interested in the consultation around inserting the United Nations Declaration on the Rights of Indigenous Peoples and the discussions around that particular provision. Also, in relation to subclauses (2) and (3), it seems fine, but I am interested in terms of who informed the minister about the insertion of 'cultural' and the substitution of 'identity, safety'.

The Hon. J.A.W. GARDNER: I am advised that the addition of 'cultural' and the replacement of 'welfare' with 'identity' and 'safety' in (2) and (3) were the suggestions of April Lawrie, the Commissioner for Aboriginal Children and Young People.

In relation to the United Nations Declaration on the Rights of Indigenous Peoples, my advice is that when the following words 'and rights set out in any other relevant international human rights instruments' were initially drafted, it was assumed that they would refer to the UN Declaration on the Rights of Indigenous Peoples and potentially others. I get the sense it was almost informal. It was April's suggestion that we explicitly identify that one while leaving in the opportunity for others to potentially be considered as well.

Clause passed.

Clauses 7 to 11 passed.

New clause 11A.

Ms HILDYARD: I move:

Amendment No 1 [Hildyard–1]—

Page 6, after line 2—After clause 11 insert:

11A—Insertion of section 10A

After section 10 insert:

10A—Committees

(1) The CCYP may establish committees—

(a) to advise the CCYP; or

(b) to carry out functions on behalf of the CCYP.

(2) The membership of a committee will be determined by the CCYP and may, but need not, include the CCYP.

(3) The CCYP will determine who will be the presiding member of a committee.

(4) The procedures to be observed in relation to the conduct of the business of a committee will be—

(a) as determined by the CCYP; and

(b) insofar as a procedure is not determined under paragraph (a)—as determined by the committee.

This amendment is simply to enable the CCYP to establish committees and to receive advice from those committees to potentially carry out investigative or research or contemplative functions on behalf of the CCYP.

The commissioner, of course, will have the opportunity to ensure that the committee is conducted in the way that she determines it should be and focuses on the particular issues that she determines that it should be. This will ensure consistency between this and my later amendment relating to committees being able to be established by the Commissioner for Aboriginal Children and Young People. So it is about the content of the committees and the ability to set those up. It also ensures there is the consistency, given my forthcoming amendment, between both of the commissioners and their ability to do that.

The Hon. J.A.W. GARDNER: As I indicated earlier, the government does not propose to support this amendment at this time. We will be happy to have a discussion further about this between the houses, so I might leave it there.

Ms Hildyard: And I appreciate that.

New clause negatived.

Clauses 12 to 17 passed.

Clause 18.

Ms HILDYARD: I move:

Amendment No 2 [Hildyard–1]—

Page 6, after line 34 [clause 18, inserted section 14A]—After its present contents (now to be designated as subsection (1)) insert:

(2) The CCYP must enter into a memorandum of understanding with the CACYP about matters of common interest and the means by which the CCYP will collaborate with the CACYP on such matters.

(3) A single memorandum of understanding between the CCYP and the CACYP may give effect to both subsection (2) and section 20J(2).

Amendment No 3 [Hildyard–1]—

Page 7, line 5 [clause 18, inserted section 14B(1)]—Delete 'may' and substitute:

must

Amendment No 4 [Hildyard–1]—

Page 7, after line 17 [clause 18, inserted section 14C]—After subsection (2) insert:

(2a) Before a matter is referred to the Minister under subsection (2), the CCYP and CACYP must attempt to resolve which Commissioner should inquire into the matter by undertaking mediation in accordance with any requirements set out in the memorandum of understanding under section 14A.

I think that I canvassed this in my remarks earlier and that the minister also spoke briefly to them either in his speech or earlier in the committee debate, but I cannot recall which one. This is about enabling both the Commissioner for Children and Young People and the Commissioner for Aboriginal Children and Young People to develop a memorandum of understanding to ensure that they have a process, a framework, that enables them to consider matters of common interest and that they are very clear in the consideration of those matters of common interest about what systems may determine who particularly takes up a particular issue, a particular matter of interest.

It is about being absolutely focused on enabling the two commissioners to establish those rules of operation, a memorandum of understanding, to enable them to operate in the particular ways they choose. I do note the minister's comments that the commissioners will have particular conversations, etc.—of course they will. They work very well together—of course they do.

This is about making sure that, yes, there are those conversations, those ongoing interactions, but also that, before a matter is elevated to ministerial level to be determined, there is another process that those two commissioners can engage in in relation to particular issues.

The Hon. J.A.W. GARDNER: As identified, I am happy to talk further between the houses, as is the government, but not support these at this stage. To identify some background, in Mr Dennis's review he discusses the need for collaboration in the performance of functions under the act. I think he used the word 'protocol' about collaboration as a suggestion, and the government agrees that it is important for the commissioners to collaborate. New section 14A in clause 18 suggests:

14A—Collaboration between CCYP and CACYP

The [Commissioner for Children and Young People] CCYP should, in the performance of their functions, collaborate on matters of common interest with the [Commissioner for Aboriginal Children and Young People] CACYP to such extent as is reasonably practicable.

In the drafting of this legislation, our view has been that the flexibility for those commissioners to develop such protocol arrangements should not be constricted by a form of MOU that is set out in legislation that might potentially be restrictive in a way that is harder to move back and forth. We are happy to talk about it further because I do not think there is any difference in the intent of what the member is proposing and what the government seeks to achieve.

I do not claim to have any special insight over and above that of anyone else as to which mechanism works better. I prefer, and indeed the government prefers, a more flexible arrangement as is the unamended legislation, but we are happy to talk about it further.

Ms HILDYARD: As just a brief comment, it sounds like we might be able to find somewhere between a protocol and a MOU, and I look forward to those discussions. The other important point I would make in relation to the amendments I have just moved is that in amendment No. 3 we are also moving an amendment that I did not really address before in my earlier words—that is, to ensure there are provisions that require the Commissioner for Children and Young People to refer particular matters to the Commissioner for Aboriginal Children and Young People. In amendment No. 3 is reference to the word 'may' and my amendment refers to the word 'must', so that is a slightly different part of the amendment that I wanted to draw the minister's attention to. I am sure that we will also be able to discuss that between the houses.

The Hon. J.A.W. GARDNER: I thank the member for drawing to my attention that aspect of the amendments that are hot off the press. I note that in changing 'may' to 'must' it still relies on the phrasing earlier on in the same clause that it is 'in the opinion of the' Commissioner for Children and Young People in the first place. So while 'must' sounds like an absolute, that absolute only applies on the occasion when the Commissioner for Children and Young People themselves has formed a view that the matter should be referred to the Commissioner for Aboriginal Children and Young People.

I would encourage members to give some thought to this one. Unless one is going to identify a delineated definition of those matters that are one and not the other, then I would argue that 'may' is actually more appropriate here. I would further argue that there are going to be occasions when the Commissioner for Aboriginal Children and Young People has a full work plan.

The Commissioner for Children and Young People has a work plan that also relates to Aboriginal children and it is entirely appropriate for the Commissioner for Children and Young People to retain the power and the authority to do some work in that particular area as well. I would not like to see such a delineation that would exclude the power of the Commissioner for Children and Young People being able to deal with the matter themselves.

The Commissioner for Children and Young People remains the Commissioner for Children and Young People for all children and young people in South Australia, including Aboriginal children. The new position is an extra targeted resource to support Aboriginal children and young people, given their particular level of disadvantage and our historical moral obligation to each of those children and young people to ensure that they have the best lives humanly imaginable.

Ms HILDYARD: I do appreciate the minister's comments. What I do want to draw his attention to—and I do so because I know that we have filed these amendments very late—is that amendment No. 8 is also an amendment that changes 'may' to 'must' for the Commissioner for Aboriginal Children and Young People to refer particular matters to the Commissioner for Children and Young People.

I just want to draw the minister's attention to that and, in doing so, say that I think our intention is similar, in that we want to make sure that is absolute reciprocity in terms of the matters that are shared and that are required to be shared. Again, I look forward to discussions about that particular issue.

Amendments negatived; clause passed.

Clause 19.

Ms HILDYARD: I want to understand what the minister sees as occurring when systemic issues are raised that particularly relate to Aboriginal children and young people in the context of this clause, which sets out that the Commissioner for Children and Young People has discretion to deal with those particular systemic issues. I want to understand what you see as the relationship and the operation of the relationship between the two commissioners when we are talking about systemic issues relating to Aboriginal children and young people and how that works in practice.

The Hon. J.A.W. GARDNER: The Commissioner for Children and Young People, in the circumstances the member has described, I would suggest would start by having a conversation with the Commissioner for Aboriginal Children and Young People and determine if the Commissioner for Aboriginal Children and Young People, obviously being empowered to make an investigation into the matter with a particular level of interest and resource, would like to do that.

It may be possible that the Commissioner for Aboriginal Children and Young People might like to take that opportunity at that time and the matter would be referred. It might also be possible that the Commissioner for Aboriginal Children and Young People, potentially in the circumstance where they were in the middle of a very serious investigation into another matter, might welcome the support of the Commissioner for Children and Young People undertaking an investigation themselves.

Indeed, were that not able to be sorted out with a conversation, a professional discussion, as I imagine would be the case in any imaginable circumstance I can foresee, then obviously we have the dispute mechanisms we discussed earlier and will come to again later.

Clause passed.

Clauses 20 to 24 passed.

Clause 25.

Ms HILDYARD: I move:

Amendment No 5 [Hildyard–1]—

Page 8, lines 32 to 34 [clause 25, inserted section 20B(3)]—Delete subsection (3) and substitute:

(3) A person appointed to be the CACYP must—

(a) despite a provision of the Equal Opportunity Act 1984 or any other Act or law—be an Aboriginal person; and

(b) have demonstrated experience in systems (whether Governmental or otherwise) affecting Aboriginal children and young people.

This amendment is very straightforward. It ensures that the Commissioner for Aboriginal Children and Young People must be an Aboriginal person and that they must demonstrate experience in systems, whether they are government systems or any sort of systems, affecting the wellbeing, safety, care and protection of Aboriginal children and young people. I imagine that is a clause that could be referred to by any particular selection committee or body that appoints the Commissioner for Aboriginal Children and Young People.

The Hon. J.A.W. GARDNER: As indicated in the other amendments, we are happy to consider this further between the houses and have some discussions with the opposition too, potentially. I should say that my instinctive reaction is that I am reluctant to further limit the pool of potential applicants for the role.

I would think that there are a number of outstanding Aboriginal and Torres Strait Islander Australians who might potentially have relevant experience, and I would need to be satisfied, more than in the three-quarters of an hour or so since we got the amendment, that the drafting of this amendment would not potentially restrict somebody from applying who might have apposite skills but not potentially meet the definition here.

That said, obviously the current person holding the role would meet this definition. I do not know if there are other people in future years or decades who might be good applicants who might not. I would value the opportunity to consider that further between the houses.

Amendment negatived.

Ms HILDYARD: I move:

Amendment No 6 [Hildyard–1]—

Page 11, after line 12—After inserted section 20D insert:

20DA—Committees

(1) The CACYP may establish committees—

(a) to advise the CACYP; or

(b) to carry out functions on behalf of the CACYP.

(2) The membership of a committee will be determined by the CACYP and may, but need not, include the CACYP.

(3) The CACYP will determine who will be the presiding member of a committee.

(4) The procedures to be observed in relation to the conduct of the business of a committee will be—

(a) as determined by the CACYP; and

(b) insofar as a procedure is not determined under paragraph (a)—as determined by the committee.

I canvassed this issue when I spoke on the earlier amendment about the ability for the Commissioner for Children and Young People to appoint committees to provide advice, to research, to comment on or to explore particular issues relating to children and young people. This particular amendment focuses on the Commissioner for Aboriginal Children and Young People to similarly establish committees and appoint members to those committees to explore and investigate particular issues and circumstances. It is reflecting that both commissioners should have that ability to do so.

The Hon. J.A.W. GARDNER: The government is not in a position to support this amendment at this time, but we will consider it further with the opposition between the houses.

Amendment negatived.

Ms HILDYARD: I move:

Amendment No 7 [Hildyard–1]—

Page 13, after line 14 [clause 25, inserted section 20J]—After its present contents (now to be designated as subsection (1)) insert:

(2) The CACYP must enter into a memorandum of understanding with the CCYP about matters of common interest and the means by which the CACYP will collaborate with the CCYP on such matters.

(3) A single memorandum of understanding between the CACYP and the CCYP may give effect to both subsection (2) and section 14A(2).

Again, I have made particular comments about the benefits that we see of having a memorandum of understanding so that, as the minister has outlined (and I wholeheartedly agree with him), of course there will be conversations and deliberations, constantly, I would imagine, between the two commissioners. Between those conversations, deliberations, etc., and referring particular matters to the minister, it is our belief that there should be some other sort of process. The minister referred to a protocol; we have referred to a memorandum of understanding. I look forward to discussions about this particular issue.

The Hon. J.A.W. GARDNER: I also look forward to those discussions.

Amendment negatived.

Ms HILDYARD: I move:

Amendment No 8 [Hildyard–1]—

Page 13, line 19 [clause 25, inserted section 20K(1)]—Delete 'may' and substitute:

must

I think I spoke about this amendment when I spoke to amendment No. 3. This amendment, as I said in those earlier comments, refers to the requirement for the Commissioner for Aboriginal Children and Young People to refer particular matters to the Commissioner for Children and Young People, just as my earlier amendment required the Commissioner for Children and Young People to refer particular matters to the Commissioner for Aboriginal Children and Young People.

The Hon. J.A.W. GARDNER: I think the comments I would make now reflect those I made earlier on the comparative clause, and I will consider them in the same light.

Amendment negatived.

Ms HILDYARD: I move:

Amendment No 9 [Hildyard–1]—

Page 13, after line 31 [clause 25, inserted section 20L]—After subsection (2) insert:

(2a) Before a matter is referred to the Minister under subsection (2), the CACYP and CCYP must attempt to resolve which Commissioner should inquire into the matter by undertaking mediation in accordance with any requirements set out in the memorandum of understanding under section 20J.

This amendment is about ensuring that, before a matter is referred to the minister, the two commissioners have the ability to attempt to resolve which particular commissioner should inquire into the matter by undertaking mediation in accordance with any provisions set out in a memorandum of understanding. Again, I would say that we have already spoken and canvassed the need to have a discussion about a memorandum of understanding, protocols, some sort of process. This is simply requiring mediation to occur as dictated by that process, protocol, MOU—wherever that discussion lands.

The Hon. J.A.W. GARDNER: The government is not in a position to support this amendment at this time, but we will consider it and discuss it between the houses.

Amendment negatived.

Ms HILDYARD: I move:

Amendment No 10 [Hildyard–1]—

Page 14, after line 18 [clause 25, inserted section 20M]—After subsection (2) insert:

(2a) To avoid doubt, and without limiting any other provision of this section, a matter will be taken to raise an issue of particular significance to Aboriginal children and young people if the matter relates to a disproportionality of Aboriginal children and young people in a particular system or systems (whether Governmental or otherwise).

This amendment is simply about strengthening and ensuring there is no doubt that a matter that is raised that has particular significance to Aboriginal children or young people, and that would include if the matter disproportionately affects Aboriginal children and young people, is referred or that the Commissioner for Aboriginal Children and Young People has the remit to inquire into those particular matters.

The Hon. J.A.W. GARDNER: The government will not be supporting this amendment today but will be happy to discuss it between the houses. As in relation to a range of the other amendments, the government will be eager to seek feedback from relevant stakeholders and interested parties, such as the Commissioners for Children and Young People and for Aboriginal Children and Young People, the other oversight and advocacy bodies, many of whom will have an interest, the Child Death and Serious Injury Review Committee, the Child Development Council and also the Guardian for Children and Young People, whose reporting functions, as we discussed earlier, are delegated to the Minister for Child Protection. We will seek feedback from them all in relation to all these amendments, and indeed from other interested parties who will have enjoyed the opportunity to read the Hansard from this morning's discussions.

The CHAIR: If they have not been tuned in.

Amendment negatived; clause passed.

Remaining clauses (26 to 41), schedule and title passed.

Bill reported with amendment.

Third Reading

The Hon. J.A.W. GARDNER (Morialta—Minister for Education) (12:13): I move:

That this bill be now read a third time.

I thank members for their contributions. I thank the member for Reynell for the thoughtful and efficient way that we went through the committee process. I thank the member for King for her second reading contribution. I thank parliamentary counsel, Mark Herbst and Karina Dearden; the Department for Education staff, Joanna Blake, Jamie Burt and Audra Field; and Sarah Hennessy, from my office, for their work on this bill.

I congratulate the inaugural Commissioner for Aboriginal Children and Young People, April Lawrie, in particular, and thank her for the work that she is already doing and the opportunities that she is seeking to provide for the children and young people, whose systems and supports I am sure her work will enhance, and as a trailblazer in her own right for those other Aboriginal leaders in the years ahead who will at some stage follow her in that position, a position which will be set out in legislation but which is already in actuality a role being undertaken. I thank her for that work, and I commend the bill once more to the house.

Bill read a third time and passed.