Children and Young People (Oversight and Advocacy Bodies) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 20 September 2016.)

The Hon. D.G.E. HOOD (16:46): I rise to speak on this very important bill to indicate Family First's overall support, although we do have concerns about some specific measures of the bill, which I will outline in my contribution today. The bill implements a number of key changes aimed to protect children and young people in the state. These proposed changes are based on the recommendations of the Child Protection Systems Royal Commission report handed down by the Hon. Margaret Nyland AM a couple of months ago.

Of the raft of changes in this bill, the most significant, in my view, is the appointment of the commissioner for children and young people, which is in accordance with recommendation 245 of the royal commission report. Indeed, that is the issue that has attracted most of the media attention and general public discourse. As most would be aware, this is not the first time the government has been recommended to appoint a commissioner for children and young people. This first came from the Hon. Robyn Layton QC in her review of child protection, handed down in March 2003.

Thirteen years have elapsed since that key recommendation was made, and only now does it appear that our state will finally establish a commissioner for children and young people. It is tragic to contemplate the number of children who have been harmed, or are worse off, or are subject to harm, or in harm's way due to the lack of a commissioner in that very long 13-year absence. In my view, and in the view of many others in the community that I have spoken to and heard from, this has simply taken too long.

In fairness to the government, it has attempted to establish a commissioner, most recently through the Child Development and Wellbeing Bill. Unfortunately, there was an impasse which stalled the passage of that bill, as you are well aware. Although introduced in 2014, the bill remains on our Notice Paper today without having progressed in some time—many months. Nevertheless, Family First welcomes the establishment of a commissioner for children and young people, which is something we have advocated for a very long time.

The history of the government's child protection performance is well documented and is contained in the numerous reports and reviews undertaken in the past two decades. We had the Layton report in 2003, the Mullighan inquiry in 2008, the Parliamentary Select Committee on Families SA in 2009, the Debelle inquiry and the recent coronial inquest into the untimely and unfortunate death of Chloe Valentine in 2015. Now we have the Child Protection Systems Royal Commission report. Each report and review has exposed widespread issues within our child protection system.

In our view, the bill now before us introduces changes to a system that is in desperate need of change and has been for an extended length of time. However, as I indicated, there is one issue in particular upon which we would like clarification from the government. I seek clarification on this particular matter of concern in relation to a specific clause in this bill, that is, clause 11, which specifies the commissioner's function is to advise and make recommendations to:

…other bodies (including non-Government bodies) on matters related to the rights, development and wellbeing of children and young people at a systemic level;

As the Attorney-General clarified in his second reading contribution:

…the inquiry powers of the commissioner will extend beyond government-based agencies and systems into the non-government sector and community…

On the face of it, this appears to be a sensible measure. We are not opposed to it as a whole. However, our concern is that the commissioner may, out of his or her own volition, with little justification or subject to few checks and balances, inquire into any private organisation.

I recognise that child protection is paramount and that is something that none of us in this chamber would shy away from, and providing the commissioner with adequate powers to investigate systemic issues is important to enable proper child protection. However, we need to ensure that the commissioner exercises his or her power of inquiry in an appropriate manner, consistent with the objects of the bill and the act. The Attorney-General has also stated:

For the purposes of this bill, inclusion of the non-government sector and community for the purposes of conducting an inquiry will be achieved by regulation.

I seek clarification from the government on how this would operate under regulations. Will the regulations contain a list of non-government organisations that may be investigated by the commissioner, for example, or will it set out certain categories of organisations, such as private schools, not-for-profit organisations, possibly churches, that may be investigated by the commissioner?

More information needs to be provided on the commissioner's jurisdiction, with regard to the investigation of non-government organisations in particular. These are, at the end of the day, private organisations run independent of government. The definition of state authority under the bill allows for the expansion of the commissioner's jurisdiction to conduct an inquiry into any person or organisation outside of government. Specifically, paragraph (f) states that any other person or body declared by the regulations can come within the definition of state authority.

It is an interesting use of words. When one hears the term 'state authority' one would normally consider that it is somehow a part of the government at one level or another. My interpretation of this is that the commissioner's power of inquiry, relative to non-government organisations, is potentially boundless and subject to little, if any, limit by this bill. I would appreciate the minister responsible for the passage of this bill to respond to the questions I have raised at the conclusion of the second reading or during the early committee stage.

Essentially, we look to be satisfied that there will be safeguards to ensure that the commissioner can only conduct inquiries into non-government organisations where it is reasonable and necessary to do so. In my view, it is important to provide the commissioner with some direction in the exercise of their quite extensive powers under this bill. This is necessary as the commissioner is proposed to have a broad range of powers consistent with a royal commission. In accordance with the bill, the commissioner will have discretion to conduct an inquiry into any suspected systemic issue affecting children, including pecuniary powers to deal with noncompliance, so long as the commissioner finds it is in the public interest to do so. These are quite extraordinary powers for what we would normally associate with such a position.

I reiterate again, it is not that we oppose the provision of those powers, we simply want clarity as to how they are to be exercised and in what circumstances. I want to make it clear that, as I said, we are not fully opposed to the commissioner investigating non-government organisations, and I recognise that legitimate circumstances will arise when the commissioner will need to investigate organisations outside of government. Indeed, we will support that. However I believe appropriate precautions need to exist. We need clarity.

Moving on, another feature of this bill is the independence of the commissioner. As some members would recall, one of our main concerns with the aforementioned Child Development and Wellbeing Bill was in relation to the ministerial appointment of the commissioner, which, in my opinion, may not be a transparent nor an independent means of appointing a commissioner. It is our view that the independence of the commissioner is non-negotiable and I certainly support the inclusion of provisions in this bill to allow for the scrutiny of the appointment of the commissioner through the Statutory Officers Committee.

Family First also supports the clarification of the jurisdiction of the Ombudsman and the Health and Community Services Complaints Commissioner in relation to child protection complaints. We believe that it is very important that the Ombudsman is equipped to investigate complaints that could potentially relate to the provision of services and administrative acts. Any amendment that streamlines and improves the accessibility of the complaints process will be supported by our party.

To conclude, I reiterate that Family First is supportive of this bill. We do have one or two concerns relating to the commissioner's proposed investigative powers of non-government organisations in particular and we will seek clarification from the minister in the committee stage or at the conclusion of the second reading. However, the passage of this bill is very important and, subject to the concerns I have raised being addressed, it should not be delayed and I indicate Family First's in principle support.

The Hon. S.G. WADE (16:54): Today is an important day for South Australian children and young people. Children and young people in South Australia deserve every opportunity to achieve their full potential and pursue their dreams. Every child has the right to a safe, loving environment in which to grow and develop.

Families, government and the wider community need to work together to ensure that children and young people are given the best possible chance in life. This bill will establish a commissioner for children and young people who will have a particular focus on promoting and advocating for the wellbeing, development and safety of children.

The Hon. Robyn Layton QC first recommended that the Rann Labor government appoint a commissioner for children and young people in her report, The State Plan for Child Protection, in 2003. The government did not implement that recommendation. Nine years later, in 2012, the government released a discussion paper on child development legislation, which proposed an advisory council and formal community networks.

The consultation response was so strong in favour of a commissioner that a revised bill was released in October 2013 providing for a commissioner, albeit a watered-down form of commissioner, but the government failed to put the bill to the parliament before the 2014 election. The establishment of a commissioner for children and young people was a Liberal Party policy commitment of the 2014 election, and I quote:

We will move quickly to appoint a Commissioner for Children and Young People with investigative powers, to escalate child protection to the top of a Marshall Government agenda and advocate for the rights of all children and young people in South Australia.

The Labor government's proposed commissioner at that stage was not to be independent, and as the Law Society said at the time:

The Commissioner is not independent and accordingly will not be able to truly safeguard the rights and best interests of children and young people.

This Legislative Council insisted on independence. The issue was still alive when Commissioner Nyland was appointed to undertake the Child Protection Systems Royal Commission. As an aside, I note that, if this council had not maintained its stand for children and young people, I expect that we would already have a watered-down commissioner in place before the royal commission was established and the commission may well not have even looked at the issue.

Even after the royal commission reported, the government produced a draft bill which provided for a minister-nominated and cabinet-endorsed appointment process. The opposition made it clear to the government that that was not acceptable and we are glad the government backed down and the bill before us provides for at least a modest form of parliamentary oversight of the appointment in clause 6.

I, too, am interested in the minister's responses in relation to the questions the Hon. Dennis Hood has asked because, like Family First, we are strongly in support of the independence of the commissioner and would be keen to understand how the government proposes to honour its undertaking in terms of focusing the role of the commissioner through regulations.

Another element of the discussion, particularly in this chamber, has been in relation to investigative powers. Stakeholders and child protection experts saw Labor's commissioner proposal as inadequate in terms of its lack of investigative powers. I would like to quote from a couple of parts of the report of Justice Nyland. To quote her summary, it states:

The Commission recommends the appointment of a Children's Commissioner with the following functions:…

5) Inquire into and investigate topics concerning the rights, development or wellbeing of children at a systemic level, including investigating individual cases which, in the opinion of the Children's Commissioner, could identify systemic issues of sufficient importance to warrant inquiry.

In part 6, page 22, the commission report states:

…the Commission considers it essential that the Children's Commissioner have extensive powers to conduct investigations into systemic issues, including thorough examination of individual circumstances where such an investigation has the capacity to highlight systemic issues.

Later in the same paragraph it reads:

The identification of appropriate matters must lie entirely within the discretion of the Children's Commissioner.

That is certainly more consistent with the Liberal and, for that matter, the majority of the Legislative Council's view of the need for a broad power in the hands of the commissioner. I indicate that I think clause 12 heads towards that. The government assures us that clause 12(3) is trying to affirm the capacity of the commissioner to look at individual cases, but we will be interested to see how this clause works in practice.

As I have indicated, the government has changed its position on two fundamental elements of the model. The opposition welcomes the fact that the Nyland royal commission has proven to be a circuit-breaker. The commissioner endorsed key elements of the approach that was being promoted by a majority of this council and the Liberal opposition. The government bill is not perfect. A number of stakeholders have publicly highlighted opportunities for improvement to the bill. The fact that the government refuses to release the submissions that it received on the draft bill suggests that they may well contain yet further opportunities to improve the bill.

We will continue to pursue the release of these submissions and we will continue to look for opportunities to improve the framework for the oversight of child wellbeing, development and protection. They would be matters for a later bill, perhaps introduced by a future Liberal government. The opposition does not want to give the government even the whiff of an excuse to continue to block a full-blooded commissioner. We support this bill and look forward to the establishment of the commissioner.

In closing, I would like to acknowledge the hard work of the children, young people, families and stakeholders who have fought long and hard for an independent voice for children and young people. The advocates have come from across society, from well-established youth organisations like YACSA, to professional organisations such as the AMA and the Law Society. I also want to indicate my respect for Belinda Valentine, the grandmother of Chloe Valentine. Belinda has been an implacable advocate for a commissioner as defender of the rights of children, not merely as a commentator on the ubiquitous system but the defender of the rights of children as individuals.

Belinda's granddaughter Chloe has become the exemplar of the vulnerability of children. Chloe did not have a voice. She loved her mother and trusted her. She did not know that her mother was a threat to her life. Children and young people need a voice, not only in child protection but also in terms of their general wellbeing and development. I trust that this commissioner for children and young people can be that voice.

The Hon. T.A. FRANKS (17:02): I rise on behalf of the Greens to speak to the Children and Young People (Oversight and Advocacy Bodies) Bill 2016. I do so noting that, of course, this is not the first piece of legislation in this place that deals with this area. I am highly cognisant of the work of the Legislative Council on the issue of a children's commissioner. My office had a Facebook square that we developed which was highly critical of the government's attempt to have a children's commissioner who was seen but not heard. The bill before us will make sure that the children's commissioner is both seen and heard and we commend the government for finally taking that step.

We also note, in the words of the member for Bragg, that the government has 'acquiesced' and the Greens also welcome the provision within this bill in terms of the appointment of such a commissioner being made through the Statutory Officers Committee. We certainly support that. This bill, of course, goes further than simply providing for a children's commissioner. It establishes the commissioner for children and young people, continues the Guardian for Children and Young People, the Child Death and Serious Injury Review Committee and the Youth Advisory Committee and, somewhat controversially, establishes a child development council.

The bill is, of course, part of the legislative response to the recommendations made recently in the Nyland royal commission report. Indeed, the measures in this bill give effect to part of that report. As we are all aware, the concept of a children's commissioner was first recommended by the Layton report, which was submitted in 2003. It has taken us 13 years to get to the point where we are finally, I think, on the verge of creating a children's commissioner in this state. I note that we will be the last state in this nation to do so, but then it took less than 30 minutes for this bill to pass through the other place.

I think that should ring alarm bells, not for the lack of goodwill, because I think all members of this council and the other place would like to see progress in this area. The Greens are not prepared to support that progress at the expense of a shoddy version of what we could have. We fear that rushing this process in the final minutes of what has been a very long journey could see us repent at leisure.

I note that the government received 156 written submissions from stakeholders and members of the community with regard to the formulation of this piece of work. I echo the opposition's call, but I strongly urge the government to make available to this council those submissions which can be made available, in order to inform our debate. Without those submissions, we cannot hear the voices of those at the coalface who have made some contributions, who live and breathe this area, and who should be listened to, just as children's voices should be listened to with regard to this piece of legislation.

We want to get it done but we want to get it right. This is not the point at which to rush this process. I put on notice that I will be expecting this council to receive those submissions, where they can be made available, in order to inform our deliberations. I draw the attention of members of the council, members of the government and members of the other place, who only spent 20 minutes on this bill—

The Hon. S.G. Wade: Thirty minutes.

The Hon. T.A. FRANKS: Less than 30 minutes. I urge them to heed the advice of three particular bodies who have had something to say and were part of the process, and who have made their particular views known publicly in various ways. I understand that some of these submissions have been sent to members of the Legislative Council but we deserve to see all of the submissions.

The first is from the Youth Affairs Council of South Australia (YACSA), who were pleased to make a contribution to this bill in the form of a submission in September 2016. I should imagine that they would be pleased because they have been campaigning for this for many years. YACSA is the peak body in South Australia representing the interests of young people, youth workers, organisations and networks throughout the non-government youth sector. Their policy positions are independent and not aligned with any political party or movement.

YACSA supports the fundamental right of all young people to participate in and contribute to all aspects of community life, particularly decision-making processes which impact upon them. This is the voice of an advocacy group that we should be listening to in this place. According to their submission:

YACSA fully supports and welcomes the establishment of a Commissioner for Children and Young People and maintains that this role is crucial to advocate for and protect the interests of all children and young people across the state.

They are by no means making this submission to be critical of the move that the government has made. However, they do go on to say:

To reiterate our previous response, we are concerned that the current public discussion surrounding the Commissioner for Children and Young People is being subsumed into the child protection reform process. Both the Layton and Nyland reviews recommended the establishment of a Commissioner to engage and advocate with and for all children and young people – not just those in the child protection system.

While the commentary and fact sheet provided in this government engagement supports that assertion, it also suggests that the Commissioner's role includes, '…the monitoring, referral and review of child protection matters and system-level issues'.

We are deeply concerned that the current discourse creates an unrealistic expectation about the point and purpose of a Commissioner for Children and Young People and urge the Government to reconsider its commentary and confirm its intention before progressing.

Of course, YACSA supports this position being independent of government, as do the Greens. However, they also note that they are quite disappointed that the detailed recruitment process that was a feature of the previous Child Development and Wellbeing Bill 2014 was omitted from the extract and is omitted from the current bill.

They go on to make a note on independence and again refer to their previous submissions, which have stated the importance of the commissioner being completely independent of government to ensure the legitimacy of the role and assist in building public confidence. That is certainly an important point here. Public confidence in this government's handling of both child protection and, of course, the broader issues of children and young people's voices, I think, has a long way to go to be restored. Indeed, rushing a process will not restore that confidence.

The YACSA submission notes that section 52AB of the Children's Protection Act 1993 specifically provides for the independence of the Guardian for Children and Young People from direction of the minister and government as follows:

1. (Independence) in performing and exercising his or her functions and powers under this Act, the Guardian must act independently, impartially and in the public interest.

2. The Minister cannot control how the Guardian is to exercise the Guardian's statutory functions and powers and cannot give any direction with respect to the content of any report prepared by the Guardian.

YACSA recommends a similar inclusion in the legislation, making clear that the commissioner can undertake their role unfettered by government.

The Greens concur. Why is this not in the legislation before us? This submission goes on to note that the functions of a commissioner for children and young people are in line with the Nyland review and should be advocating for the rights and interests of all children and young people. Certainly in my conversations with YACSA, while there has been such a great focus on child protection, we have actually lost sight of the fact that this is a much broader scope with which we are dealing.

With the focus on child protection, which is vitally important and essential, it is also essential that we do not throw the baby out with the bathwater and forget all the good work that has previously been done that is in current legislation, but is wiped out with the stroke of a pen or the pass of a vote through this place.

Of most concern is the fact that the charter has not been transferred over in this bill, and the Greens ask the government: why has the charter not found its way into this piece of legislation before us? It was a piece of work that was developed through the voices of children and young people, is long held and forms part of many NGOs' contracts with government to uphold. From the Greens' perspective, the fact that this charter is missing from this bill raises significant concerns that this bill has been rushed, that this bill is a shoddy job and that the children of this state deserve better than this bill.

I go on to note also the words in the submission, in two parts, from the Office of the Guardian for Children and Young People. A letter of 26 August 2016, authored by Amanda Shaw, who is the Guardian for Children and Young People in this state, was sent to the Nyland Royal Commission Response Unit. They write in response to the government's request for feedback about the draft functions and powers (this is, of course, response to the draft that was circulated). In that response to the draft, they note:

This feedback must be contingent given that what is available for comment is only part of a larger Bill. The Objects of the Bill and definitions within an interpretations clause may be of particular importance. For example, the extract contains no guidance about what might constitute 'matters of a systemic nature' for the purposes of section 14(3)(a).

I urge the government to outline what does constitute interpretation for 'matters of a systemic nature'. It is a key part of this bill and I think it deserves to be put on the record in this place. The letter goes on:

It also is difficult to substantially respond to this request given the lack of detail about possible changes to the powers and functions I hold as Guardian for Children and Young People (GCYP), nor potential impacts upon the roles of the Child Death and Serious Injury Review Committee (CDSIRC), Council for the Care of Children (CCC), Health and Community Services Complaints Commission (HCSCC) and the South Australian Ombudsman.

Of course, in the final bill we have indeed seen changes in those roles, yet they were not part of that draft exposure that was put out for consultation. It was put out for consultation in a quite hurried fashion and, while the goodwill of the sector meant that many did participate in that process, I fear that we are going to make errors due to our haste, and this concerns me. The letter goes on:

The extract does not make clear which Advocacy and Oversight Bodies may be incorporated within (or be established by) the Bill and the possible implications of the associated legislative changes.

We have a bill before us that was not fully consulted on in the government's own process. I find that extraordinary, and the fact that we cannot have all of the submissions to that particular process I find even more extraordinary. The Guardian goes on to say:

Without seeing the whole Bill I am unable to provide considered feedback about its potential impact on the functions of the GCYP as currently provided for in the Children's Protection Act 1993.

This should be ringing alarm bells, as I say, not just within this council but of course across this parliament. I commend this particular letter to members of this council for their further information. I also note that it refers to the previous submissions made by the guardian's office and also that a subsequent September 2016 document has been made publicly available, responding to the draft Children and Young People (Oversight and Advocacy Bodies) Bill 2016.

In that particular submission, I note that the Guardian supports the creation or continuation of three of the four entities accommodated by the bill in the context of comments made in their submission, noting that the purpose, role and reporting relationships of the Child Development Council (CDC) need further thought. I could not agree more. This bill needs further thought. I fear that it is not going to be given that due consideration.

I believe the Guardian's submission goes on to make some quite relevant points for informing our debate and raises significant concerns, particularly with regard to the CDC but also a range of other things. It actually makes some recommendations that this bill should be amended to include. I have to draw the council's attention to some of these, because some of them, while minor, will be quite profound in their impact.

The first of their suggestions in 2.1 is to add an objects clause. They have noted that, in terms of addressing matters, there needs to be a commitment to the voice of children and young people and the need to clarify the relationships between the four entities within this bill. The second is staff and resources. It asks why we are not carrying over the Child Protection Act's current wording around staff and resources, that is:

The Minister must provide the Guardian with the staff and other resources that the Guardian reasonably needs for carrying out the Guardian's functions.

Why is that wording not here in this bill to ensure that these entities, in this piece of legislation, are appropriately resourced, as they are currently provided for? Why are those words missing from this bill with regard to all the entities, or at least some of the entities? If the government could provide a response to that, that would certainly inform the council. It is also raised that the Guardian's staff status as public servants is not clarified within this bill. Of course, it also notes that the commissioner's staff will not have this status. Again, can the government provide information about why those two entities are treated differently and what the implications of that will be?

The submission is actually quite extensive. As I said, I am only going to touch on a few things here and in a moment I will seek leave to table this document for the information of all in this council, but it raises considerable concern again about the Child Development Council. It states:

Further consideration of intended relationships (and relative responsibilities) between the four entities subject to the Bill is needed. There is potential for duplication or confusion of roles. The concept of an advisory or reference group is supported, but further consideration needs to be given to its relationship to the Commissioner.

In terms of the reporting obligations, the Guardian's September submission asks, 'Why have the requirements for distributing reports when parliament is not in session been removed?' That is a good question and we would like an answer. It is also not clear why the status of such a report 'as a report of Parliament' has also been omitted.

There does not appear to be an explicit reciprocal capacity for the Guardian to advise and make recommendations for the Commissioner for Children and Young People.

Why is this the case? Can the government provide a response on that? There is broad support for this bill, but I also note that the Law Society's submission echoes some of the concerns raised by both YACSA and the Guardian, and who knows how many others who made submissions to this piece of legislation. The Guardian's submission, also in section 3.5, notes on the Charter of Rights for Children and Young People in Care that:

Division 3 of the CPA provides detailed requirements for the Charter of Rights for Children and Young People in Care. This charter disappears in the Bill, although a new and generic Charter for Children and Young People is included in Section 52.

The existing Charter expresses the rights of a disadvantaged group of children and young people that are core entitlements prescribed in international covenants and domestic law and policy. It is not appropriate to think that a generic Charter for all children and young people can replace or incorporate these matters.

The Charter of Rights for Children and Young People in Care was created in 2006 in consultation with children and young people in care, their carers and workers. The adoption of the measure as part of the passage of the Children's Protection Amendment Bill 2009 was particularly important. Young people in care, participating in Youth Parliament, successfully advocated to the Minister and other members of Parliament. It would be sad if the bill ignored this serious and tangible result of the work of advocates of this highly disadvantaged group of children and young people.

As required by the CPA the Charter was reviewed by children and young people in care in 2015, accepted by the Minister and tabled in parliament earlier this year.

It begs the question: this is a process that did indeed listen to the voices of children and young people, that has incorporated it for almost a decade, was recently reviewed and accepted, and yet here we are a year later dumping it from a piece of legislation without, I think, the courtesy and the debate that it deserves.

With those few words I will note that, while the Greens welcome what is a large step forward in terms of progressing towards having a children and young people's commissioner and having a system that fixes the system that we have that is broken, we urge this council not just to get it done but to get it right. With that, we will be asking questions in the committee stage, we will be expecting answers, we will be seeking clarification and I will be moving amendments to give effect to some of those concerns that I have raised today. We look forward to working cooperatively to get this right and not to be back here in two years' time because we rushed something through parliament and did not give it the due diligence that the children of this state deserve.

With that, I table the document of the Office of the Guardian for Children and Young People Responding to the draft Children and Young People (Oversight and Advocacy Bodies) Bill 2016. I table the Law Society's response to the Nyland Royal Commission Response Unit, dated 16 December 2016. I table the letter to the Nyland Royal Commission Response Unit, dated 26 August 2016, from the Office of the Guardian for Children and Young People. I table the submission of the Youth Affairs Council of South Australia, dated September 2016, on the Children and Young People (Oversight and Advocacy Bodies) Bill 2016.

Debate adjourned on motion of Hon. J.M. Gazzola.