Bills

Children and Young People (Safety and Support) Bill

Committee Stage

In committee (resumed on motion).

Clause 4.

The ACTING CHAIR (Mr Odenwalder): I understand we were drawing to the close of the debate, but please continue.

The Hon. K.A. HILDYARD: Just to recap in relation to the member's question in terms of developing the understanding of significant harm, as I said, there will be an implementation period and part of that implementation period will include education for mandatory notifiers and indeed more broadly across the sector and community. I also mentioned that we did test that definition and there had not been any particular concerns raised.

The other two things I would just mention are that I think it is important that in terms of considering the threshold and the impact for people who are mandatory notifiers, when you consider this particular provision in conjunction with the provision around the development of a state strategy, through the development of that state strategy, given that around 75 per cent of notifications have historically come from people working across government, we would hope to work through that state strategy in a collaborative way to make sure we are providing those very early interventions through each person who has particular contact with children and young people in our community.

The last thing I would say—as I spoke about, I think, in my second reading speech—is that this is of course the threshold for mandatory notifications. Nothing precludes any person from continuing to notify wherever there is a concern, and of course the chief executive will still have to assess each of the notifications that are presented to the department.

The ACTING CHAIR (Mr Odenwalder): Member for Heysen, do you have any further questions on clause 4?

Mr TEAGUE: I think I might be done; I have done my three.

The CHAIR: I am happy to allow another question.

Mr TEAGUE: I will continue at clause 5.

Clause passed.

Clause 5.

Mr TEAGUE: Continuing on, then, with this question about the new definition, creating a threshold as it does, I appreciate the government's response in relation to practical programs in terms of the implementation of this for mandatory reporters. I am concerned with the certainty of the description and the certainty, therefore, of the definition and how that is likely to work in practice.

Clause 5 of course takes the assessment that step further in terms of identifying a risk, but in so doing further particularises itself what significant harm is, for example. By setting out in subclauses (2)(a) to (2)(e) and in the further context that is provided for in the others, we see a whole range of circumstances that are particularised in a way that the definition of 'significant harm' does not. The definition of 'significant harm' talks about three kinds of harm:

(a) harm that endangers a child or young person's life;

(b) harm that consists of, or results in, serious impairment of the physical or psychological wellbeing of a child or young person;

(c) harm that results in, or is reasonably likely to result in, a significant adverse impact on the safety or wellbeing of a child or young person.

If one compares that with subclauses (2)(a) to (2)(e), there are then examples of what will constitute that in the context of the risk of it occurring—including, for example, those circumstances that are set out in subclauses (2)(c)(i), (2)(c)(ii) and (2)(c)(iii).

I guess the question is: what work is the further particularisation of risk of such harm doing, and am I right in interpreting those examples therefore as concrete examples of significant harm for the purposes of the definition itself in clause 4?

The Hon. K.A. HILDYARD: If I understand the question correctly, and building on the information I provided in relation to clause 4 about how we canvassed that particular definition, etc., clause 5 is designed to set out in what circumstances a child or young person will be taken to be at risk of harm; and yes, you are correct in terms of the particular examples you pointed to.

Mr TEAGUE: As a matter of construction, if we are searching around for examples, to go back to clause 4(2)(b) and (c) in particular, with the use of the words 'serious' and 'significant' but without particularisation, is it just a matter of convenient construction that we find examples of the risk of significant harm giving us some guidance of specific examples of harm that has such serious or significantly adverse impacts on children?

If so, why are such examples not set out, for example, by reference in a schedule for the purposes of clause 4? For the record, is it sufficiently clear in clause 5 that these are sufficiently serious or prevalent examples of risk that, for drafting purposes, have been deemed to be desirable to set these out and that they are non-exhaustive?

The Hon. K.A. HILDYARD: Basically what this clause does is define at risk of harm and what is important to note is that part of the definition at clause 5(2)(c), (d) and (e) already exists in current legislation and is actually very well understood, and there is that definition in the current legislation, so basically this clause is about defining at risk of harm.

There are two other things that this clause also does. There is a new addition at clause 5(3) in relation to a child or young person not being taken to be at risk of harm merely because a parent or guardian of the child has a disability. The other substantive change is at clause 5(5), which is a new provision that has been repeatedly called for, and also the subject of examination in a number of research papers, a number of inquiries, and that is the concept of cumulative harm. The addition here at clause 5(5) is to make sure that, when we are determining whether a child or young person is at significant risk of harm, we do not just look at the current circumstances of that child or young person but also at the impact that cumulative harm would be likely to have on the child or young person.

Mr TEAGUE: I note the reference to cumulative harm at subclause (5) and the carve out for a parent or guardian living with a disability at subclause (3), and I understand the minister's answer to be referring there to a definition that is otherwise legislated. If I look at it in the broad, the risks are the first two in (2)(b), which is the tautologist's general catching of clause 4. It says, risk of significant harm…is a likelihood that the child or young person will suffer significant harm', so that is understood. It is (c) and (d) that are going into this; there are two extra categories. One is taking the child out of the state for doing something that would be illegal within the state, and there are three examples of that, and then the second special area is to do with parents and parents being unable or unwilling to care for the child. To be clear, that constitutes itself a risk of significant harm. Then in paragraph (e) you have the opportunity to prescribe other circumstances by regulation.

My question remains why those particulars do not just constitute part of the definition of significant harm in clause 4(2) and therefore all you need in clause 5 is paragraph (b): risk of significant harm is everything that is caught within the definition of significant harm in clause 4. Why the need to set out those categories only in clause 5?

The Hon. K.A. HILDYARD: My advice is that clause 4 is looking at the definition of 'harm' and clause 5, particularly in that section that you referred to in terms of FGM, etc., is looking at what is deemed to be something that would place a child or young person 'at risk of harm'.

Clause passed.

Clauses 6 and 7 passed.

Clause 8.

Mr TEAGUE: In the interests of brevity or getting straight to it, the first point that I might refer to specifically—and I might do this a number of times by reference to various submissions that have been provided to me—is that I have received, but only recently, a submission from the Aboriginal Legal Rights Movement (ALRM) on the then draft bill that is dated 13 September 2024. That might be just for the purpose of reference to the document that I am looking at. It will not necessarily speak to the entirety of the bill as it currently stands.

The particular concern that the ALRM raises, I am not certain there is a need for it. It may be that the minister can provide some comfort in this regard. The ALRM submission repeatedly refers to a necessity to deal with the contents of part 4 within part 2. I seek leave to continue my question.

The Hon. K.A. HILDYARD: We have made an amendment to deal with that issue that I think the member is going to ask about, so I would be happy to elucidate.

Progress reported; committee to sit again.

Sitting suspended from 18:00 to 19:30.