Children's Protection (Implementation of Coroner's Recommendations) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 15 October 2015.)

The Hon. T.A. FRANKS (17:25): I rise on behalf of the Greens to speak to the Children's Protection (Implementation of Coroner's Recommendations) Amendment Bill 2015. As members are aware, it has taken some time to get to the final stages of debate in this place, having passed in the other place in June 2015.

I note that the Greens have put in our whipping instructions for some many months now—in fact, the entirety of this year—for this bill to proceed. We understand that there were sticking points around the definition with regard to drugs and alcohol, and the testing of parents in those situations; I understand that these have now finally been resolved. It would have been the Greens' preference and no doubt that of many in the community, and the sector's preference that that could be resolved more speedily.

Of course, we are here today because of the death of a little girl and the Coroner's recommendations upon her death. The Coroner, Mark Johns, in his recommendations and report on the death of Chloe Valentine, described Families SA as 'broken and fundamentally flawed'. He recommended law changes in a raft of areas, and this bill today picks up some of those, but I would note that he recommended that any parent convicted of manslaughter or murder of a child should automatically have a future child removed from their care at birth.

He also recommended that all social workers with less than 12 months' experience should be supervised. He recommended urgent re-education to rectify a widespread misunderstanding that parents have to be consulted on any care decisions about their child and, importantly I believe, a requirement for social workers to be registered. Of course, in this state, unlike in other jurisdictions, we still do not have a registration system for social workers.

Members would no doubt have received the same pieces of correspondence as I have recently from the Australian Association of Social Workers, dated 29 March 2016, with regard to their call for parliament to urgently voice our support for legislation for the regulation of professional social workers both in this state and nationwide. I note that the relevant minister seeks to simply put this on the national agenda. We need to stand up as a state and act to register social workers in this state.

I am very conscious that it has taken an enormous amount time for this bill to reach this stage in the process, not just today but over almost the past year. With those few words, the Greens support this bill today and look forward to the recommendations being implemented and further work being done and, in particular, that call for social workers to be registered with some urgency. We look forward to further parliamentary work on that.

The Hon. S.G. WADE (17:28): I will briefly indicate my disappointment that this was not made an earlier order of the day, but I hope that the House of Assembly will be patient with us. This bill passed the House of Assembly on 2 June 2015 with government amendments. I gave my second reading speech on 15 October and no further work has been done on the bill until today.

As the Hon. Tammy Franks reminded the house, this bill is in response to the tragic death of Chloe Valentine. On 20 June 2012, Chloe Valentine, a young four-year-old girl, died. In death, Chloe has touched the hearts of the South Australian community. As I said in my second reading speech, her mother and her mother's partner were the only ones who harmed Chloe, but the whole community let her down.

I acknowledge in the gallery today Chloe's grandmother, Belinda Valentine, and partner, Steve, and their friends. Belinda has been a strong advocate for children. She is determined to do what she can to reduce the risk on children in similar situations to Chloe, and beyond this bill she has also advocated in areas such as foster care reform and the Commissioner for Children and Young People. I look forward to the committee stage of the bill.

The Hon. R.L. BROKENSHIRE (17:30): Given the hour and the importance of getting this legislation through, I will be brief, but this is a very important piece of legislation, one that I am sure all of us here would like to have put more time into today, explaining certain points, but we respect the fact that, paramount, we must get it through.

I congratulate the opposition on ultimately getting the government to agree to some amendments. I believe the government has dragged the chain on this for a very long period of time. In fact, it has been of concern to Family First, and I am sure to everyone other than the government (and I cannot understand why it was not of concern to the government), that this has been left in limbo, as the Hon. Stephen Wade said, for pretty much a year to the day.

Whilst we will support the amendments that have been put forward by the Minister for Police on behalf of government (and I do not blame the Minister for Police for delays in this because he is not the minister carrying the bill, and also he has only been a minister this year), I do want to put on the record that, whilst we will be supporting it and not putting up further amendments for the reasons I have highlighted, I foreshadow that we will bring in a private member's bill. On 11 April 2015 I was quoted publicly in The Advertiser trying to give a clear message to the government that it needs to get serious about ensuring that, in a situation where parents are not in a position to properly and adequately look after a child, we do not see another sad set of circumstances like we saw with Chloe Valentine.

I commend Chloe's grandparents and supporters for their efforts, as they are an integral and big part of this. In my 21 years in the parliament, I cannot recall an occasion when, wherever I have gone, there has been so much concern and expression of love for Chloe Valentine and her grandparents, but also concern about where the legislation was not up to properly ensuring that we have the toughest legislation to protect these circumstances. With the sad passing of Chloe, I am sure that everyone does not want that to occur in vain; therefore, we see where the parliament is coming from with respect to the amendments.

I said on 11 April 2015 that I would draft legislation if the state government would not toughen its stance. Here it is here, now 14 April—one year and three days later—and we have a compromise, but to me it is only a compromise and I cannot agree with the Attorney-General, as Minister for Child Protection Reform, in his comments that day in reaction to what I said. I did say that I believed that, before a child was put back into the custody of a parent who is a known drug user, the parent or parents should have to take part in a drug diversion program and submit to regular drug tests to prove they were drug free for a set period of time.

I also indicated during discussions at that time that I believed there needed to be mandatory testing and diversion programs and it not being left to the chief executive officer of Families SA. We still believe that that is how strong this bill should have been, but in order to not hold up passage of this bill I foreshadow to the parliament and put on the public record that I will introduce a private member's bill to strengthen this legislation.

The Hon. J.A. DARLEY (17:34): I did not make a second reading contribution, but I do want to place on the record that I was bitterly disappointed that the government tried to undo the good work of my predecessor, now senator, Nick Xenophon. I agree entirely with the words of the Hon. Tammy Franks and I will be supporting the bill.

The PRESIDENT: It has come to our attention that the Hon. Mr Wade has spoken already on this as a second reading speech.

The Hon. S.G. WADE: I apologise to the chamber. I must admit that I did think we were at clause 1 so, by leave, I seek that my comments be treated as a clause 1 contribution.

The Hon. P. MALINAUSKAS (Minister for Police, Minister for Correctional Services, Minister for Emergency Services, Minister for Road Safety) (17:35): I thank all honourable members for their contributions and I look forward to dealing with the bill further in the committee stage.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 to 3 passed.

Clause 4.

The Hon. P. MALINAUSKAS: I move:

Amendment No 1 [Police–1]—

Page 3, lines 6 and 7 [clause 4, inserted section 3(1)]—

Delete '(and in the administration of this Act that object must, in all cases, be the paramount consideration)' and substitute:

and in the administration of this Act that object must, in all cases, be the paramount consideration

Amendment No. 1 removes the parenthesis from the object of the act that provides that, in the administration of the act, the paramount consideration is to keep children safe from harm. This is an issue of grammar that was raised by the Deputy Leader of the Opposition in the other place.

The Hon. S.G. WADE: I indicate that the opposition will be supporting the amendment and foreshadow that we will be supporting all the amendments.

The CHAIR: Will the opposition be moving their amendments?

The Hon. S.G. WADE: No, we will not be moving the amendments standing in our name.

The Hon. T.A. FRANKS: The Greens will be supporting the government's amendments and look forward to the continuation speedily of this bill.

The Hon. R.L. BROKENSHIRE: As indicated in the second reading, Family First will be supporting the amendments and the entire bill.

Amendment carried; clause as amended passed.

Clauses 5 and 6 passed.

Clause 7.

The Hon. P. MALINAUSKAS: I move:

Amendment No 2 [Police–1]—

Page 3, after line 32—

Before the present contents (now to be designated as subclause (2)) insert:

(1) Section 6(1)—after the definition of Department insert:

drug includes alcohol;

Amendment No. 2 clarifies that any reference to the term 'drug' in the act will include alcohol. The amendment makes it clear that all provisions in the act dealing with risks to children arising from drug abuse will be able to be employed with respect to alcohol abuse.

The Hon. S.G. WADE: The opposition supports the amendment, as I have already foreshadowed, and thus strongly agrees with the government that the evidence does indicate that children are at risk from drugs, whether they be illicit drugs or alcohol.

Amendment carried; clause as amended passed.

New clause 7A.

The Hon. P. MALINAUSKAS: I move:

Amendment No 3 [Police–1]—

New clause, page 4, after line 4—Insert:

7A—Insertion of Part 2 Division 4

After section 8D insert:

Division 4—Matters to be included in annual report of Department

8E—Matters to be included in annual report of Department

(1) The annual report of the Department must include the following information in respect of the period covered by the annual report:

(a) information setting out—

(i) the number of applications made under sections 20(1) and 22; and

(ii) the number and general nature of any orders made under the Act in relation to those applications;

(b) information setting out the number and general nature of any orders made under section 21(1)(ab);

(c) information setting out—

(i) the number of applications made under section 37(1) or (1a); and

(ii) the number and general nature of any orders made under the Act in relation to those applications.

(2) This section is in addition to, and does not derogate from, any other requirement under this Act or the Public Sector Act 2009.

Amendment No. 3 obliges the department to report information about the number of applications and orders dealt with under sections 20(1), 22, 37(1a) and 21(1)(ab) of the act and the general nature of any orders made.

New clause inserted.

Clause 8 passed.

Clause 9.

The Hon. P. MALINAUSKAS: I move:

Amendment No 4 [Police–1]—

Page 4, after line 16—

After the present contents (now to be designated as subclause (1)) insert:

(2) Section 20(2)—delete subsection (2) and substitute:

(2) Without limiting subsection (1) or (1a), if the Chief Executive is of the opinion that a child is at risk as a result of the abuse of a drug by a parent, guardian or other person, the Chief Executive must apply for an order under subsection (1) directing the parent, guardian or other person to undergo a drug assessment.

(3) However, the Chief Executive need not apply for an order referred to in subsection (2) if he or she is satisfied that—

(a) a drug assessment of the parent, guardian or other person has already occurred, or is occurring (whether pursuant to an application under this section or otherwise); and

(b) that drug assessment is of a kind appropriate for the purposes of this Act; and

(c) the results of the drug assessment have been, or will be, made available to the Chief Executive; and

(d) in the case of a drug assessment that has already occurred—having regard to when the drug assessment occurred, an additional drug assessment under that subsection is not necessary.

Amendment No. 4 will achieve three things. Firstly, it removes the term 'illicit' from the wording in section 20(2). This will mean that where the chief executive suspects on reasonable grounds that a child is at risk as a result of the abuse of any drug, including alcohol and any other legally accessible drugs, the chief executive may apply to the court for a drug assessment.

The Hon. J.A. DARLEY: I rise to indicate my position on the government amendment. As the council would be well aware, my predecessor, now Senator Nick Xenophon, has been campaigning long and hard to require mandatory drugs assessments of parents and guardians of children where they may be at risk. The Chloe Valentine inquest highlighted that the government has been flouting the intention of the government by not seeking the mandatory assessments as required by the government under section 20(2).

Together with other non-government groups, we have been insisting on mandatory drug assessments. Since then, we have been intending to support amendments to remove the section's clause. The Xenophon team is very disappointed that here we are, more than a year after the inquest, and the issue is still unresolved. I understand that amendment No. 4 filed by the government is a result of the opposition's endeavours and has their support. That amendment was only filed on Monday night and, whilst I agree that it is a clear improvement on the current law, I have not had the opportunity to consult. Accordingly, today I will vote neither for nor against amendment No. 4.

I know that, as a result of the royal commission and other bills, the Children's Protection Act will be opened again, and if I believe further amendments are required I will bring amendments at that time. I agree with the Hon. Stephen Wade that the most important issue in relation to drug assessments of parents and guardians is not the legislation but the culture of the government department and will hold the department accountable to what the government and parliament intend.

The Hon. S.G. WADE: Since my second reading contribution, there have been meetings which minister Close and the Attorney-General convened. I understand that all groups of this chamber were invited to those meetings and that discussions continued this year, particularly with the opposition. We are disappointed that progress has taken so long, but we are pleased that progress has been made. The opposition considers that the amendment will improve the act. As the minister has highlighted, it will apply to alcohol as well as to illicit drugs.

It makes it clear that the assessment the chief executive can accept and not pursue a mandatory order needs to be of a similar kind to that that would be obtained through a mandatory order. It also recognises the need for that assessment to be timely. We have sought legal advice on the implications of different wording and we are told that those differences are not significant, so we are happy to support the compromise amendment, and we thank the government for facilitating that.

As the Hon. John Darley put to this house, and as we know from the history of section 20(2), it is not enough for this parliament to put laws in place: we also need to hold the executive accountable for the implementation of those laws, both as to their spirit and as to their letter. Let us continue to maintain a focus on how these laws are taking effect in practice. As the Hon. John Darley indicated, the policy and legislative forward program of the parliament suggests that we will be looking at this bill fairly frequently in the next few years, and we might well need to revisit section 20(2) if it does not seem to be working the way we all hope it might.

Amendment carried; clause as amended passed.

Clauses 10 to 12 passed.

Clause 13.

The Hon. P. MALINAUSKAS: I move:

Amendment No 5 [Police–1]—

Page 5, after line 1—Insert:

(1) Section 38—before subsection (1) insert:

(a1) The Court may, on an application under this Division, make an order under this section if the Court is satisfied—

(a) that the grounds of the application have been made out; and

(b) that an order under this section should be made in respect of the child.

(2) Section 38(1)—delete 'If the Court finds, on an application under this Division, that the grounds of the application have been made out and that an order under this section should be made in respect of the child, the Court may exercise 1 or more of the following powers' and substitute:

In an order under this section, the Court may exercise 1 or more of the following powers

This amendment clarifies that the court's consideration of an application for a care and protection order under section 38 of the act is a two-step process. The court must determine, first, whether the grounds of the application have been made out and, secondly, that an order should be made in respect of the child. This amendment responds to feedback on the bill from the senior judge of the Youth Court.

Amendment carried; clause as amended passed.

New clause 13A.

The Hon. P. MALINAUSKAS: I move:

Amendment No 6 [Police–1]—

New clause, page 5, after line 5—Insert:

13A—Amendment of section 39—Adjournments

Section 39—before its present contents (now to be designated as subsection (2)) insert:

(1) All proceedings under this Act must be dealt with expeditiously, with due regard to the degree of urgency of each particular case.

This amendment shifts a provision currently in section 4, which is proposed for removal, to section 39. The provision aims to ensure that all proceedings under the act are dealt with expediently. This amendment also addresses feedback on the bill from the senior judge.

New clause inserted.

Clause 14.

The Hon. P. MALINAUSKAS: I move:

Amendment No 7 [Police–1]—

Page 6, lines 19 to 24 [clause 14, inserted section 44B]—Delete inserted section 44B

This amendment deletes new section 44B to ensure that the provisions of the bill in respect of the issuing of instruments of guardianship and restraining notices apply to all children in South Australia, not just those born in South Australia.

Amendment carried.

The Hon. P. MALINAUSKAS: I move:

Amendment No 8 [Police–1]—

Page 6, line 27 [clause 14, inserted section 44C(1)]—After 'child' insert:

born after the commencement of this subsection

This amends new section 44C to provide that the instruments of guardianship apply only to children born after commencement of the new provisions. Restraining notices will be able to be issued in respect of children born before the commencement of the provisions.

Amendment carried; clause as amended passed.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. P. MALINAUSKAS (Minister for Police, Minister for Correctional Services, Minister for Emergency Services, Minister for Road Safety) (17:50): I move:

That this bill be now read a third time.

Bill read a third time and passed.