Children and Young People (Safety) Bill

Second Reading

The Hon. P. MALINAUSKAS (Minister for Police, Minister for Correctional Services, Minister for Emergency Services, Minister for Road Safety) (15:44): I move:

That this bill be now read a second time.

I seek leave to have the second reading and explanation of clauses inserted in Hansard without my reading it.

Leave granted.

The Children and Young People (Safety) Bill 2017 ('the Bill') is a landmark piece of legislation which repeals the Children's Protection Act 1993 and creates a new child protection framework to implement recommendations made by the Child Protection Systems Royal Commission in its report The Life They Deserve ('Royal Commission Report'). The status quo is not an option and this Bill provides a scheme where the protection of children and young people from harm is at the very centre of the child protection system and is above all other priorities; it is the paramount consideration for those charged with the administration, operation and enforcement of this legislation.

Child abuse and neglect negatively affect a child's development, including the physical, psychological, cognitive, behavioural, and social aspects of a child's development. It can result in attachment difficulties, trauma, physical health problems and learning difficulties. The negative effects of child abuse and neglect can be long-lasting and inter-generational. Young people and adults who were abused or neglected during childhood commonly experience mental health problems, and there is a strong association between sexual abuse and substance abuse.

It is a difficult task for the State of South Australia or indeed any jurisdiction to determine the appropriate threshold or trigger which should cause the State to step in and protect a child or young person from harm or a risk of harm. This difficulty is acknowledged by the Guardian for Children and Young People, who noted in a recent Annual Report:

Intervention by the State is not without its difficulties and finding exactly the 'right' balance between when to intervene and when not to intervene is very challenging, as is the way in which it can be accurately expressed in legislation to cover the appropriate circumstances. Determining when the State should be authorised to investigate, modify or terminate an individual child's relationship with his or her parents is full of dilemmas.

Two major factors come into play

the rights and safety of the child, and

the rights of the family to be intrinsically involved in the resolution of the issues for mutual benefit.

The love and care that can be provided within a family unit, in all its many varied forms, is the best and safest place for a child or young person to thrive and gain strength. Sadly in those cases where the jurisdiction of the Department for Child Protection is invoked, the State must step in and fulfil this role, for varying lengths of time. As the case studies in the Royal Commission Report and the recent coronial inquests into the untimely and tragic deaths of Chloe Valentine and Ebony Napier attest, in the past there has at times been too great an emphasis placed upon ensuring the preservation of the immediate family unit, with an unacceptable level of risk for a child being tolerated to achieve this. This Bill seeks to enshrine in legislation to make clear to all involved in its' operation, enforcement and administration that the safety of the children and young people are at the centre of all the decisions made. This Bill does not seek to amend the current scheme to achieve this, instead it provides for transformational change for child protection and within the Department for Child Protection.

The Bill is a framework to support those who work closest to the children and young people and to empower the Department to make decisions with children and young people at the centre.

This Bill is just one of a number of reforms that this Government is leading to address child abuse and neglect. Other reforms in the important areas of early intervention and prevention are being lead as part of A Fresh Start, the Government's response to the Child Protection Systems Royal Commission.

By way of background, on 15 August 2014, Justice Margaret Nyland received a commission from the Governor to conduct an inquiry into South Australia's Child Protection Systems. On 5 August 2016 Commissioner Nyland provided the Royal Commission Report to the Governor. The report contained 260 recommendations to the Government, some of which required legislative reform. This Bill implements part or all of those legislative reform recommendations: namely, Recommendations 47, 63, 67, 69, 70, 95, 97 to 101, 134, 137, 153, 154, 180, and 242.

This Bill represents one component of a suite of legislation implementing recommendations from the Royal Commission and reforming child protection systems in South Australia. This legislation includes the Children and Young People (Oversight and Advocacy Bodies) Act 2016, which establishes the Commissioner for Children and Young People, and the Child Safety (Prohibited Persons) Act 2016, which creates a new regime to govern working with children checks. The other related legislation is the Public Sector (Data Sharing) Act 2016 which, once in operation, will facilitate a greater capacity to share data between government and non-government agencies, thereby further strengthening a proactive capacity in the Department for Child Protection to intervene where required, and in an appropriate and timely way.

I now turn to discuss the key features of this Bill.

Chapter 2 of the Bill sets out the Guiding Principles for the purposes of the legislation. Specifically, in Chapter 2, Part 1 the Parliamentary declaration about the value and importance of children and young people sets a tone and provides a theme for the entirety of the legislation. Clause 7 of the Bill proceeds to make it unequivocally clear to all involved in the administration, operation and enforcement of the legislation, which includes the Court, that the paramount consideration is to protect children and young people from harm. This is underpinned by clause 8, which sets out other needs of children and young people to be considered, including the need to be heard and have views considered, the need for love and attachment, the need for self-esteem, and to achieve their full potential. However, throughout the Bill you will see that other considerations to be taken into account in its operation will always be subject to the primary objective, the safety of children and young people.

Chapter 2, Part 3 sets out the principles to be applied in terms of intervention and the placement of a child or young person at risk of harm. The principles of intervention place emphasis on timely action and decision making, stating that in the case of young children decisions and actions should be made as early as possible in order to promote permanence and stability for the child. The principles also indicate that wherever possible adequate consideration should be given to the views expressed by the child or young person. Clause 10(3) of the Bill makes clear however that none of the principles of intervention can displace the paramount consideration set out in section 7 of the Bill, which is the need to ensure that children and young people are protected from harm.

The placement principles set out at clause 11 of the Bill confirm that a child or young person removed pursuant to the legislation should be placed in a safe, nurturing, stable and secure environment, preferably with someone known to the child or young person.

Clause 12 of the Bill carries across but further refines the Aboriginal and Torres Strait Islander Child Placement Principle. The Principle importantly continues to advocate for Aboriginal and Torres Strait Islander children to be placed with their own extended families, with members of their communities or, if neither of those placements can be found, with other Aboriginal or Torres Strait Islander families.

Currently custody and guardianship is a function undertaken by the Minister under the Children's Protection Act 1993. This Bill vests the guardianship of children and young people in the Chief Executive of the Department for Child Protection. Conferring this responsibility upon the Chief Executive will also better align the South Australian system with systems in other jurisdictions.

In accordance with the undertaking given by the Government during the passage of the Children andYoung People (Oversight and Advocacy Bodies) Act 2016, Chapter 2 Part 4 of the Bill appropriately includes the Charter of Rights for Children and Young People in Care, which is currently located in the Children's Protection Act 1993.

Chapter 4 of the Bill sets out some of the options that can be used when a child or young person is at risk but the risk is of a nature or type that does not warrant the child's removal. These provisions deal with the establishment of assessment and referral networks, convening of family group conferences and case planning. As was identified and recommended by the Royal Commission, either the Chief Executive or the Court may convene a family group conference. This is necessary as a number of child protection matters may never progress to seeking court orders for various reasons. It is in these cases that the Chief Executive has access to family group conference as a mechanism of early intervention to attempt to address and prevent further escalation of a child protection matter. The Youth Court will, as is currently the case, also have the power to convene a family group conference, should that be required. It is important to note here, that this Chapter is not an exhaustive list of all avenues of early intervention and prevention, these are only a small number which required legislative force for various reasons, including information sharing. The Government has acknowledged the importance of early intervention and prevention to address child abuse and neglect in its response to the Child Protection Systems Royal Commission, and is continuing reform in this area in partnership with non-government organisations.

Chapter 5 of the Bill identifies when risk arises and what should be done, commencing with the reporting obligations. Part 1 reiterates that it is the duty of everyone to safeguard and promote the outcomes set out in clause 4(2) of the Bill but retains the existing requirements under the Children's Protection Act 1993 that certain persons must report their suspicion that a child or young person is at risk. These persons must report any suspicion formed in the course of their employment if they have reasonable grounds for their suspicion, with failure to do so attracting a significant penalty. Part 2 sets out prescribes that a response by the Department for Child Protection to a report that a child or young person may be at risk. Without limiting any other action that may be taken by the Chief Executive, the Chief Executive must cause at least 1 of the following actions to be taken:

an investigation pursuant to clause 33 of the Bill;

if a clause 33 investigation is unnecessary, an alternative response that in the opinion of the Chief Executive, more appropriately addresses the risk must be implemented;

the matter is to be referred to an appropriate State authority pursuant to clause 32 of the Bill; or

if the Chief Executive is satisfied that either the matter has previously been dealt with and there is no need to re-examine, the matter is trivial or vexatious or frivolous or there is good reason why no action should be taken, the Chief Executive may decline to take further action.

Clause 31(4) of the Bill also incorporates transparency measures which impose a requirement on the Chief Executive to maintain a formal record in relation to each action taken and the reasons for the said action. Secondly, the Annual Report for the Department for Child Protection must include statistical information relating to action taken under clause 31.

Clauses 32, 34 and 35 the Bill provide greater powers to the Chief Executive of the Department for Child Protection, powers which previously required a court order. These include the is the ability to investigate the circumstances of a child or young person at risk and directing that a child or young person be professionally examined or assessed. Clause 35 of the Bill empowers the Chief Executive to be able to direct persons to undergo drug and alcohol or parenting capacity assessments. These measures will allow the Department to begin assessment of a child early and not be delayed by the Court process.

Chapter 5, Part 3 of the Bill outlines the threshold for the removal of a child or young person, providing that a child protection officer may remove a child or young person if they believe on reasonable grounds that the child or young person has suffered serious harm, or there is a significant possibility that they will suffer serious harm, and it is necessary to remove them to protect them as there is no reasonably practical alternative. Part 3 also sets out the action to be taken once a child or young person has been removed. Chapter 5, Part 4 of the Bill authorises the removal, and the Chief Executive's temporary guardianship, of a child born to an offender who has been found guilty of a 'qualifying offence'. These measures have been preserved and carried across from the Children's Protection Act 1993, as they arose from recommendations of the Coroner in the inquest into the death of Chloe Lee Valentine.

Chapter 6 of the Bill prescribes the court processes, in terms of who may make applications to the Youth Court, when the application can be made and the orders that can be made. It also provides for the legal representation of children and young people and the obligations of legal practitioners, in accordance with Royal Commission recommendation 69. Of further note is clause 54 of the Bill, which reverses the onus of proof for applications, other than initial applications, so that the objector must satisfy the court, on the balance of probabilities, that an order should not be made. The Crown will continue to bear the onus of proof for initial applications. Subsection (3) of clause 54 clarifies that this does not apply to the child or young person to whom the proceedings relate or to the Crown. The Government is strongly of the view that this is appropriate and necessary as a fundamental key to underpin the stability and permanency of placements made of children and young people under guardianship of the Chief Executive. The rationale for this, put simply, is the need to place children and young people who have been removed from their parent/s or caregiver/s by the Department for Child Protection at the centre of all decision making. The Government will not allow the further trauma or instability and uncertainty regarding their placement to add further distress to not only the child or young person but to their carers.

Provisions regulating foster care and foster care agencies are currently in the Family and Community Services Act 1972, which will now be addressed in Chapter 7 of the Bill. Specifically, Chapter 7 Part 1 of the Bill will define 'out of home care', the process of approval for 'approved carers '(formerly known as 'foster carers') and when this approval can be cancelled by the Chief Executive. Of note is that application processes in Chapter 7 Part 1 of the Bill connect with the Child Safety (Prohibited Persons) Act 2016. Due to the nature of child protection, there will be instances where a child or young person must be urgently removed from the custody and/or guardianship of their parents or caregivers. Clause 72 of the Bill provides a mechanism for this to be done (on a short term, temporary basis) without infringing upon existing statutory requirements both under the Bill and the Child Safety (Prohibited Persons) Act 2016. Chapter 7 Part 1 Division 4 and Part 2 also give effect to Royal Commission Recommendations 99 and 100, by conferring upon approved carers entitlements to be provided with certain information and to participate in decision-making processes. Importantly, children and young people are also afforded the right to certain information about their placement with a carer.

Chapter 7 Part 3 of the Bill addresses the transition to long-term guardianship orders for approved carers, currently known and referred to as 'other person guardian' status or 'OPG'. Under this provision, after two years of caring for a child or young person, approved carers can apply to the Chief Executive for an application to be made to the Youth Court, placing the child or young person under the approved carer's guardianship. Once an assessment has been made and the approved carer is determined to be suitable, pursuant to clause 84 of the Bill, there is a mandatory requirement that the Chief Executive apply to the Court for such orders to give effect to the proposed long-term guardianship arrangement. As stated previously, in accordance with Royal Commission recommendation 154, aside from the Crown or the child's legal representative, should any person object to such an application being made, clause 54 of the Bill will place the burden of proof upon them, as to why the order should not be made. This of itself should give greater comfort and certainty to approved carers to proceed with making a long-term guardianship order application to the Chief Executive and to obtain the much needed certainty with regard to the placement of the child or young person in their care.

Part 4 of Chapter 7 of the Bill deals with contact arrangements for children and young people providing, in line with Royal Commission Recommendation 73, that contact arrangements are to be determined by the Chief Executive, who must have regard to particular considerations depending upon whether reunification is likely. Clause 88 of the Bill provides for contact arrangements to be determined by the Chief Executive. There will also be a mechanism for review of these decisions, pursuant to clause 90 of the Bill, by the Contact Arrangements Review Panel (established under clause 89).

Finally, Part 8 of Chapter 7 of the Bill deals with the provision of assistance to young people between 16 and 26 years of age who are leaving, or have left, a care placement. This. includes assistance to find accommodation, employment and support services. This is a significant step forward in assisting care leavers to make the transition from care to the adult world and providing them with a good start to adult life.

Chapter 8 of the Bill reinstates child safe environments. Of note is the overwhelming community support received during consultation on the draft Bill that these measures be reinstated and further refined to reflect current practice. Child abuse can occur in a variety of circumstances, however research shows that abuse is more likely to take place in organisations that have, amongst other characteristics, inadequate guidelines, gaps between policy and practice, unwillingness to listen to the child or young persons and poor or limited access to information. Legislative provisions such as those contained in Chapter 8 of the Bill cause prescribed organisations to prepare or adopt child protection policies and procedures, which will act as a guide to persons when a matter of concern arises. It also serves as a statement of the organisation's commitment to child safety in this State.

Royal Commission Recommendation 137 recommends that the Government 'legislate for the development of a community visitors' scheme for children in all residential and emergency care facilities'. Chapter 9 of the Bill gives effect to this recommendation. Chapter 10 of the Bill, which relates to the transfer of certain orders and proceedings between South Australia and other jurisdictions, has largely been carried across from the existing Children's Protection Act 1993.

Chapter 11 of the Bill addresses a range of administrative matters associated with child protection including the powers and functions of the Chief Executive of the Department, and of child protection officers. Chapter 11 Part 3 of the Bill implements Royal Commission recommendations regarding information gathering and sharing. Part 4 of Chapter 11 of the Bill imposes additional reporting obligations upon the Chief Executive with respect to various matters including progress in the implementation of Royal Commission recommendations, the allocation of case workers, and the management of case plans. These reports must be submitted to the relevant Minister annually and must be made public as soon as reasonably practicable.

Chapter 12 of the Bill sets out two mechanisms for review of decisions made under the Bill: internal review of a decision made by the Chief Executive or by a child protection officer (the scope of which will be defined by Regulations), and an external review by the South Australian Civil and Administrative Tribunal (SACAT). As to the latter, clause 152 confers upon SACAT jurisdiction to review certain prescribed decisions made by the Chief Executive in Chapter 7 of the Bill. For the sake of clarity, an applicant as defined seeking a review from SACAT must first exhaust the internal review of the original decision.

Many will note that this Bill does not contain any consequential or transitional provisions. This will be addressed in a separate Bill to be introduced into this place in the very near future. The provisions in this Bill require consequential amendments to a number of Statutes before commencing operation. These include: Family and Community Services Act 1972; Youth Court Act 1993; Youth Justice Administration Act 2016; Children and Young People (Oversight and Advocacy Bodies) Act 2016; Child Safety (Prohibited Persons) Act 2016; Education and Early Childhood Services (Registration and Standards) Act 2011; Intervention Orders (Prevention of Abuse) Act 2009; Births, Deaths and Marriages Registration Act 1996; Carers Recognition Act 2005; Coroner's Act 2003; Mental Health Act 2009; Residential Tenancies Act 1995; Spent Convictions Act 2009; and Summary Procedure Act 1921. Extensive transitional provisions will also be required, to facilitate the transition from the existing child protection regime under the Children's Protection Act 1993, to the new.

On behalf of the Government, I wish at this point to thank all of the organisations, agencies both government and non-government and individuals who provided extensive and comprehensive feedback during the public consultation on the draft Bill, tabled on 29 November 2016. All of the feedback received was considered and was actioned where appropriate for inclusion in the Bill, and provided invaluable insight into areas of concern for all involved or who have an interest in child protection in South Australia.

The proposed legislative reforms to the child protection system are an integral part of a larger package of reforms undertaken in response to the Royal Commission's recommendations. This Bill forms a significant component of such reforms. Other action will need to include policy and cultural changes both within government agencies and not for profit organisations, undertaking functions or providing services to children and young people in this State.

The introduction of this Bill signals a milestone in the reform of child protection in the State of South Australia. The Government looks forward to the Bill being passed as soon as possible, to allow those charged with the enforcement, administration and operation of this legislation to have the certainty that is necessary to commence preparations for the commencement of this legislation.

I commend the Bill to Members.

Explanation of Clauses

Chapter 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

3—Act to bind, and impose criminal liability on, the Crown

This clause provides that the measure binds the Crown, and extends the liability of the Crown to include criminal liability.

Chapter 2—Guiding principles for the purposes of this Act

Part 1—The importance to the State of children and young people

4—Parliamentary declaration

This clause sets out a number of declarations by Parliament in relation to children and young people.

5—Duty to safeguard and promote the welfare of children and young people

This clause expresses the principle underlying this measure that everyone is responsible for the safety of children and young people.

6—Interaction with other Acts

This clause states that this measure is to work in conjunction with the specified Acts, and does not limit other laws.

Part 2—Priorities in the operation of this Act

7—Safety of children and young people paramount

This clause sets out that, in the administration, operation and enforcement of this Act, the paramount consideration must always be to ensure that children and young people are protected from harm. All other clauses of the measure are subordinated to this clause.

8—Other needs of children and young people

This clause sets out further needs of children and young people that are to be considered in terms of the measure.

9—Wellbeing and early intervention

This clause requires State authorities whose functions and powers include matters relating to the safety and welfare of children and young people to have regard to the fact that early intervention in matters where children and young people may be at risk is a priority.

Part 3—Principles to be applied in operation of this Act

10—Principles of intervention

This clause sets out the principles of intervention to be applied in respect of the performance of functions and powers under this measure.

The clause makes it clear that the Court is also bound by the requirements under the proposed section.

11—Placement principles

This clause sets out the principles to be applied in respect of placing children and young people removed under this measure, with the preference expressed for placing them with a person with whom they have an existing relationship.

The clause makes it clear that the Court is also bound by the requirements under the proposed section.

12—Aboriginal and Torres Strait Islander Child Placement Principle

This clause sets out the Aboriginal and Torres Strait Islander Child Placement Principle, which is to be observed in placing Aboriginal and Torres Strait Islander children in young people in care under the measure.

Part 4—Charter of Rights for Children and Young People in Care

13—Charter of Rights for Children and Young People in Care

This clause is the same as the provisions relating to the Charter under the repealed Act, relocated into this measure.

Part 5—Additional functions of Minister

14—Additional functions of Minister

This clause sets out functions of the Minister in respect of promoting the wellbeing of children and young people and early intervention where they may be at risk of harm.

Chapter 3—Interpretation

15—Interpretation

This clause defines terms and phrases used in the measure.

16—Meaning of harm

This clause defines what 'harm' is for the purposes of the measure.

17—Meaning of at risk

This clause defines what it is for a child and young person to be 'at risk' for the purposes of the measure.

18—Minister may publish policies

This clause empowers the Minister to publish policies for the purposes of the measure, and makes procedural provision in respect of such policies. The policies are binding on persons or bodies engaged in the administration, operation or enforcement of the measure.

Chapter 4—Managing risks without removing child or young person from their home

Part 1—Child and Family Assessment and Referral Networks

19—Minister may establish Child and Family Assessment and Referral Networks

This clause empowers the Minister to establish Child and Family Assessment and Referral Networks, and makes procedural provision in respect of such networks, including the conferral of functions on them by the measure or the Minister.

Part 2—Family group conferences

20—Purpose of family group conferences

This clause sets out what family group conferences are intended to achieve.

21—Chief Executive or Court may convene family group conference

This clause sets out that either the Chief Executive or Court may convene a family group conference, and when a conference can be convened.

22—Who may attend a family group conference

This clause sets out who is entitled to attend a family group conference, and continues the effect of the current provision in the repealed Act.

23—Procedures at family group conference

This clause sets out the procedures for family group conferences, and continues the effect of the current provision in the repealed Act

24—Review of arrangements

This clause sets out when further conferences are to be convened to review arrangements, and continues the effect of the current provision in the repealed Act.

25—Chief Executive etc to give effect to decisions of family group conference

This clause requires the Chief Executive and State authorities to give effect to decisions made at family group conferences, subject to the provisos specified.

26—Statements made at family group conference not admissible

This clause provides that things said at family group conferences are not admissible in legal proceedings.

Part 3—Case planning

27—Chief Executive to prepare case plan in respect of certain children and young people

This clause requires the Chief Executive to cause a case plan to be prepared in respect of each child and young person prescribed by the clause. The clause sets out what must be in such plans.

28—Chief Executive etc to give effect to case plan

This clause requires persons and bodies engaged in the administration, operation or enforcement of this measure to exercise their powers and perform their functions so as to give effect to case plans.

A case plan does not, however, create legally enforceable rights or obligations.

Chapter 5—Children and young people at risk

Part 1—Reporting of suspicion that child or young person may be at risk

29—Application of Part

This clause sets out the persons to whom the Part applies, and clarifies that any duty of care a person might otherwise owe to a child or young person is not necessarily met simply by reporting risk under the proposed Part.

30—Reporting of suspicion that child or young person may be at risk

This clause requires persons to whom the proposed Part applies to report, in a manner specified by the Minister, their reasonable suspicions formed in the course of their employment and relating to children and young people who may be at risk.

Part 2—Responding to reports etc that child or young person may be at risk

31—Chief Executive must assess and take action on each report indicating child or young person may be at risk

This clause sets out the processes that must be applied and followed by the Chief Executive following the CE becoming aware that a child or young person may be at risk.

32—Chief Executive may refer matter

This clause enables the Chief Executive to refer reports and notifications of risks to children and young people, and makes procedural provision in relation to such referrals.

33—Chief Executive may investigate circumstances of a child or young person

This clause empowers the Chief Executive to investigate the circumstances of a child or young person.

34—Chief Executive may direct that child or young person be examined and assessed

This clause empowers the Chief Executive to direct that a child or young person be examined and assessed, and makes procedural provision in relation to such examinations and assessments.

The clause creates an offence where a person who has examined or assessed a child and young person fails to provide a written report on the examination or assessment to the Chief Executive.

35—Chief Executive may direct person to undergo certain assessments

This clause empowers the Chief Executive to direct that a person undergo certain assessments relating to drug and alcohol abuse or parenting capacity, and makes procedural provision in relation to such assessments.

Part 3—Removal of child or young person

36—Removal of child or young person

This clause empowers child protection officers to remove children and young people from dangerous situations, and sets out when such removals can happen.

37—Action following removal of child or young person

This clause sets out what action a child protection officer is to take on removing a child or young person under section 36.

38—Custody of removed child or young person

This clause provides that children and young people removed under section 36 are automatically in the custody of the Chief Executive for the specified period.

Part 4—Chief Executive to assume guardianship of child or young person where parent found guilty of certain offences

39—Interpretation

40—Temporary instruments of guardianship

41—Restraining notices

42—Court may extend period

43—Certain information to be provided to Chief Executive

This Part is the current scheme relating to the assumption of guardianship of children and young people where a parent is found guilty of certain offences, relocated from the repealed Act.

Chapter 6—Court orders relating to children and young people

Part 1—Applications for Court orders

44—Who may make application for Court orders

This clause sets out who may apply for Court orders under proposed section 48.

45—When application can be made for Court orders

This clause sets out the circumstances in which an application for Court orders may (and, in the case of subclause (1), must) be made.

The clause also requires the Chief Executive to assess whether or not a reunification is likely between a child or young person and the person from whom they are removed before applying for orders of the kind specified in subclause (5).

46—Parties to proceedings

This clause sets out who the parties are in certain proceedings under the measure.

47—Copy of application to be served on parties

This clause requires a copy of applications made for orders under proposed section 48 to be served on the parties to the application.

Part 2—Orders that can be made by Court

48—Orders that may be made by Court

This clause sets out the orders that can be made under the measure, including orders placing a child or young person under the guardianship or in the custody of the Chief Executive or another person.

Orders under this proposed section cease to have effect once a child or young person turns 18.

49—Consent orders

This clause provides that the Court may make orders under section 48 with the consent of the parties, and in doing so need not consider the matters that would otherwise need to be considered by the Court.

50—Variation, revocation or discharge of orders

This clause sets out that parties to proceedings may apply for the variation or revocation of Court orders, or the discharge of applications.

51—Adjournments

This clause requires proceedings under the measure to be dealt with expeditiously, with due regard to the degree of urgency of each particular case, and makes provisions for adjournments of proceedings accordingly.

52—Court not bound by rules of evidence

This clause provides that the Court is not bound by the rules of evidence but must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal form.

53—Standard of proof

This clause provides that the standard of proof in proceedings under the measure is the civil standard, ie matters are to be proved on the balance of probabilities. However, this standard does not apply in criminal proceedings.

54—Onus on objector to prove order should not be made

This clause provides that, in proceedings on an application to the Court for orders relating to a child or young person who is, pursuant to an order of the Court, under the guardianship, or in the custody, of the Chief Executive or another person or persons, if a person (other than a child or young person in specified circumstances or the Crown) objects to the making of an order by the Court, the onus is on the person to prove to the Court that the order should not be made.

55—Orders for costs

This clause allows the Court to make orders for costs where an application is dismissed.

56—Non-compliance with orders

This clause creates an offence for a person to contravene or fails to comply with a Court order that has been served on them.

Part 3—Child or young people to be heard in proceedings

57—Views of child or young person to be heard

This clause confers on children and young people a right to be heard in proceedings under the measure that relate to them, subject to the limitations in the clause.

Part 4—Representation of children and young people

58—Legal practitioners to comply with this section when representing child or young person

This clause sets out requirements that must be satisfied by legal practitioners acting for children and young people under the measure. Of particular note is that the lawyer must, to the extent that it is consistent with the legal practitioner's duty to the court to do so, act in accordance with any instructions given by the child or young person and, to the extent that the child or young person has not given instructions, must act in accordance with the legal practitioner's own view of the best interests of the child or young person.

59—Limitations on orders that may be made if child or young person unrepresented

This clause limits the ability of the Court to hear an application for orders under the measure where the child or young person to whom the application relates is unrepresented.

The clause also sets out when applications can be heard despite the child or young person being unrepresented.

Part 5—Miscellaneous

60—Conference of parties

This clause enables the Court to require the parties to proceedings under the measure to confer purpose of determining what matters are in dispute, or resolving any matters in dispute, and makes procedural provision in respect of conferences.

61—Right of other interested persons to be heard

This clause confers a right to be heard in proceedings before the Court on the persons specified.

62—Court may refer a matter to a family group conference

This clause allows the Court to adjourn proceedings under measure for the purpose of referring specified matters to a family group conference for consideration and report to the Court by the conference.

63—Effect of guardianship order

This clause provides that, where the Court places a child or young person under the guardianship of the Chief Executive or any other person or persons under the measure, the Chief Executive or the other person or persons is, or are, the lawful guardian, or guardians, of the child or young person to the exclusion of the rights of any other person.

Chapter 7—Children and young people in care

Part 1—Approved carers

Division 1—Preliminary

64—Interpretation

This clause defines the term 'out of home care'.

65—Chief Executive may establish different categories of approved carers

This clause enables the Chief Executive to establish different categories of approved carers for the purposes of the measure.

Division 2—Approval of carers

66—Out of home care only to be provided by approved carers

This clause creates an offence for a person to provide out of home care unless they are an approved carer, or are otherwise authorised to do so under the measure.

67—Approval of carers

This clause sets out the process by which the Chief Executive is to approve approved carers under the measure.

68—Ongoing reviews of approved carers

This clause requires the Chief Executive to ensure that approved carers are the subject of regular assessment, and that training and other support is provided to them.

69—Cancellation of approval

This clause sets out the circumstances in which the Chief Executive may revoke the approval of an approved carer.

70—Certain information to be provided to Chief Executive

This clause requires approved carers to provide the information specified in the clause to the Chief Executive, with an offence created for those who fail to do so.

71—Delegation of certain powers to approved carer

This clause enables the Chief Executive to delegate specified powers to approved carers.

Division 3—Temporary placement of child or young person where approved carer not available

72—Temporary placement of child or young person where approved carer not available

This clause enables the Chief Executive to place a child or young person who is removed under this Act, or who is in the custody or under the guardianship of the Chief Executive, in the care of a person despite that person not being an approved carer if the Chief Executive is satisfied of the matters referred in subclause (1). Such placements must be temporary, exceptional arrangements and must be regularised as soon as it is reasonably practicable to do so.

Division 4—Information and involvement in decision-making

73—Interpretation

This clause defines the term 'placement agency' for the purposes of the Division.

74—Approved carers to be provided with certain information prior to placement

This clause requires a placement agency to provide prospective approved carers with whom the placement agency is considering placing a child with information the enables the approved carer to make a fully informed decision as to whether to accept the placement.

75—Children and young people to be provided with certain information prior to placement

This clause requires a placement agency that is considering placing a child or young person with an approved carer to provide to the child or young person the prescribed information in relation to the approved carer.

76—Approved carers to be provided with certain information

This clause requires a placement agency that has placed a child or young person with an approved carer to provide to the approved carer information of the specified kind (being information that is in the agency's possession).

77—Approved carers entitled to participate in decision-making process

This clause clarifies that, subject to the provisions of proposed Chapter 2 of the measure, an approved carer in whose care a child or young person is placed is entitled to participate in any decision-making process decision relating to the health, safety, welfare or wellbeing of the child or young person.

78—Non-compliance with Division not to invalidate placement

This clause clarifies that a refusal or failure to comply with a requirement under the proposed Division does not, of itself, invalidate a placement of a child or young person with an approved carer.

Part 2—Children and young people in Chief Executive's custody or guardianship

79—Chief Executive's powers in relation to children and young people in Chief Executive's custody or guardianship

This clause sets out the powers that the Chief Executive may exercise in relation to a child or young person who is in their custody or under the guardianship. The clause makes further procedural provision in respect of the exercise of powers under the proposed section.

80—Review of circumstances of child or young person under long-term guardianship of Chief Executive

This clause requires the Chief Executive to cause a review of the circumstances of each child or young person prescribed under the proposed section to be carried out at least once in each 12 month period.

81—Direction not to communicate with, harbour or conceal child or young person

This clause empowers the Chief Executive to give directions of the kind specified if the Chief Executive believes it is reasonably necessary to prevent harm being caused to certain children and young people, or to prevent them from engaging in, or being exposed to, conduct of a criminal nature. A failure to comply with such a direction is an offence.

82—Offence of harbouring or concealing absent child or young person

This clause creates an offence for a person to harbour or conceal, or prevent the return of, a child or young person who is absent from a State care placement (or to assist another person to do so).

83—Unlawful taking of child or young person

This clause creates an offence for a person to encourage a child or young person to leave a place in which they were placed under the measure, or to take a child or young person from such a place, or to harbour or conceal a child or young person who has left or been taken from such a place.

Part 3—Transition to long-term guardianship

84—Certain approved carers may apply to Chief Executive to seek long-term guardianship order

This clause makes arrangements such that an approved carer in whose care a child or young person has been for a period of at least 2 years (or such shorter period as the Chief Executive may determine) may apply to the Chief Executive for an application to be made to the Court in accordance with this Part for an order placing the child or young person under the approved carer's guardianship.

The clause also requires the Chief Executive to assess the suitability of such applicants to be guardians of the relevant child or young person.

85—Long-term care plan to be prepared

This clause requires that, where an assessment under proposed section 84 suggests that an applicant is a suitable guardian for a child or young person, the Chief Executive must cause a long-term care plan to be prepared in respect of the child or young person, and provide a copy of the plan to the Court in the relevant application.

86—Chief Executive to apply to Court for order to place child or young person under long-term guardianship

This clause requires the Chief Executive, in the circumstances specified, to apply to the Court for such orders under proposed section 48 as the Chief Executive considers necessary or appropriate to give effect to proposed long-term guardianship arrangement.

Part 4—Contact arrangements in respect of children and young people

87—Application of Part

This clause sets out the children and young people to whom the proposed Part applies.

88—Contact arrangements to be determined by Chief Executive

This clause confers on the Chief Executive the function of determining contact arrangements in respect of children and young people to whom the proposed Part applies.

The clause also makes procedural provision in respect of the making of determinations under the proposed Part.

89—Contact Arrangements Review Panel

This clause requires the Minister to establish a Contact Arrangements Review Panel to review contact arrangements made under the proposed Part. The Panel is to have the jurisdiction and powers set out in the regulations.

90—Review by Contact Arrangements Review Panel

This clause provides a right of review of contact arrangements to a person allowed contact with a child or young person under contact arrangements under the proposed Part, and sets out procedures and powers of the Contact Arrangements Review Panel in respect of such reviews.

Part 5—Voluntary custody agreements

91—Voluntary custody agreements

This clause enables parents or guardians of a child or young person to enter a short term (ie up to 6 months in total) voluntary custody agreement in respect of the child or young person with the Chief Executive, placing the child or young person in the custody of the Chief Executive. The clause makes procedural provision with respect to such agreements.

Part 6—Foster care agencies

92—Interpretation

93—Foster care agencies to be licensed

94—Licence to carry on business as foster care agency

95—Cancellation of licence

96—Record keeping

97—Ongoing reviews of approved carers by agency

This Part is the current scheme relating to foster care agencies relocated from the Family and Community Services Act 1972.

Part 7—Licensed children's residential facilities

98—Interpretation

99—Children's residential facilities to be licensed

100—Licence to operate children's residential facility

101—Cancellation of licence

102—Record keeping

103—Child protection officer may inspect licensed children's residential facility

104—Chief Executive to hear complaints

This Part reflects the current scheme relating to Licensed children's residential facilities relocated from the Family and Community Services Act 1972.

Part 8—Provision of assistance to care leavers

105—Chief Executive to assist persons leaving care

This clause requires the Chief Executive to assist the child or young person in making their transition from care by preparing, in consultation with the child or young person, a plan setting out steps to make the transition easier.

106—Minister to arrange assistance for eligible care leavers

This clause requires the Minister to cause assistance of the kind contemplated by the proposed section to be offered (and, where accepted, to be provided) to certain care leavers for the purposes of making their transition from care as easy as is reasonably practicable.

Part 9—Miscellaneous

107—Agreement for funeral arrangements of children and young people in care

This clause requires the Chief Executive to assist specified parties to reach an agreement about funeral arrangements for children and young people who were in care at the time of their death.

Chapter 8—Providing safe environments for children and young people

108—Certain organisations to ensure environment is safe for children and young people etc

This clause requires organisations prescribed under the proposed section to provide what were, under the repealed Act, known as 'child safe environments'. The clause sets out steps the organisation must take to comply with the section, and creates an offence for non-compliance with those requirements.

109—Policies and procedures to be reviewed

This clause requires prescribed organisations to review the policies and procedures prepared or adopted under section 108 at least once in every 5 year period.

Chapter 9—Child and Young Person's Visitor scheme

110—Interpretation

This clause defines the term 'prescribed facility' used in the proposed Chapter.

111—Child and Young Person's Visitor

This clause enables the Minister to establish a visitor scheme in respect of children and young people.

112—Functions and powers

This clause sets out the functions and powers of the Child and Young Person's Visitor, should one be established.

113—Reporting obligations

This clause requires the Child and Young Person's Visitor to provide reports to the Minister on their work, and also enables the Child and Young Person's Visitor to prepare special reports on relevant matters, and requires both kinds of reports to be laid before Parliament.

Chapter 10—Transfer of certain orders and proceedings between South Australia and other jurisdictions

Part 1—Preliminary

114—Purpose of Chapter

115—Interpretation

Part 2—Administrative transfer of child protection order

116—When Chief Executive may transfer order

117—Persons whose consent is required

118—Chief Executive to have regard to certain matters

119—Notification to child and guardians

120—Limited period for review of decision

Part 3—Judicial transfer of child protection order

121—When Court may make order under this Part

122—Type of order

123—Court to have regard to certain matters

124—Duty of Chief Executive to inform the Court of certain matters

Part 4—Transfer of child protection proceedings

125—When Court may make order under this Part

126—Court to have regard to certain matters

127—Interim order

Part 5—Registration of interstate orders and proceedings

128—Filing and registration of interstate documents

129—Notification by Registrar

130—Effect of registration

131—Revocation of registration

Part 6—Miscellaneous

132—Appeals

133—Effect of registration of transferred order

134—Transfer of Court file

135—Hearing and determination of transferred proceeding

136—Disclosure of information

137—Discretion of Chief Executive to consent to transfer

138—Evidence of consent of relevant interstate officer

This Chapter is the current scheme relating to the transfer of orders and proceedings between the State and other jurisdictions, simply relocated from the repealed Act.

Chapter 11—Administrative matters

Part 1—Functions of Chief Executive etc

139—Functions of the Chief Executive

This clause sets out the functions of the Chief Executive under the measure.

140—Powers of delegation

This clause is a standard power of delegation in respect of the functions and powers of the Minister and the Chief Executive.

Part 2—Child protection officers

141—Child protection officers

This clause sets out who is a child protection officer under the measure.

142—Primary function of child protection officers

This clause clarifies that the primary function of child protection officers under the measure is the removal of children and young people from situations in which they are at risk of harm.

143—Powers of child protection officers

This clause sets out the powers of child protection officers under the measure.

144—Child protection officer may require information etc

This clause empowers child protection officers to require a person or body (whether a State authority or otherwise) to provide specified information and documents, and to answer questions or provide written reports. Failure to comply with the requirement is an offence.

Part 3—Information gathering and sharing

145—Chief Executive may require State authority to provide report

This clause empowers the Chief Executive to require a State authority to prepare and provide a report on certain matters, where to do so would assist the performance of functions under the measure. The clause sets out what is to happen should a State authority not comply with the requirement.

146—Sharing of information between certain persons and bodies

This clause provides that the persons and bodies specified in the clause may, for the purposes specified, exchange information and documents with each other. This applies despite limitations imposed under other Acts, but information so dealt with cannot be disclosed except in accordance with the regulations.

147—Certain persons to be provided with documents and information held by the Department

This clause allows certain persons to apply to the Chief Executive to be provided with documents and information of a specified kind relating to a prescribed person, being a person who was at some point in care.

148—Internal Review by Chief Executive

This clause confers on an applicant for documents or information under proposed section 147 a right of review by the Chief Executive of a decision to refuse to provide the relevant documents or information.

149—Interaction with Public Sector (Data Sharing) Act 2016

This clause clarifies the relationship of the proposed Part to the Public Sector (Data Sharing) Act 2016.

Part 4—Additional reporting obligations of Chief Executive

150—Additional annual reporting obligations

This clause requires the Chief Executive to report to the Minister on the matters specified, and for the report to be laid before Parliament and published on a website.

Chapter 12—Reviews of decisions under Act

Part 1—Internal review

151—Internal review

This clause establishes an internal review process able to be accessed by persons who are aggrieved by decisions of the Chief Executive or child protection officers under the measure.

Part 2—Review of decisions by South Australian Civil and Administrative Tribunal

152—Review of decisions by South Australian Civil and Administrative Tribunal

This clause confers jurisdiction on the SACAT to review specified administrative decisions under this measure.

153—Views of child or young person to be heard

This clause requires a child or young person to whom proceedings relate to be given a reasonable opportunity to state their views about their care to the South Australian Civil and Administrative Tribunal.

Chapter 13—Miscellaneous

154—Hindering or obstructing a person in execution of duty

This clause creates an offence for a person to hinder or obstruct the Chief Executive, a child protection officer or any other person in the performance of a function, or exercise of a power, under the measure.

155—Payment of money to Chief Executive on behalf of child or young person

This clause enables the Chief Executive to receive money on behalf of a child and young person, and makes procedural provision in respect of such monies.

156—Restrictions on publication of certain information

This clause creates an offence for a person to publish a report of a family group conference, or of any statement made or thing done at a family group conference.

157—Protection of identity of persons who notify Department

This clause creates an offence for a person who receives a report or notification under the measure that a child or young person may be at risk to disclose the identity of the informant.

158—Confidentiality

This clause creates an offence for a person engaged or formerly engaged in the administration of measure to divulge or communicate personal information obtained (whether by that person or otherwise) in the course of official duties except in the circumstances specified.

159—Victimisation

This clause creates an offence for a person to victimise another because that other person provides, or intends to provide, information under the measure.

160—Protections, privileges and immunities

This clause clarifies the status of various privileges and immunities for the purposes of the measure. This includes vicarious liability.

161—Evidentiary provision

This clause allows the information specified to be given in legal proceedings by way of allegation in an information.

162—Service

This clause sets out how notices and documents under the measure are to be served on a person.

163—Review of Act

This clause requires the Minister to cause a review of the operation of this measure to be conducted, and a report on the review to be prepared and submitted to the Minister. The report is then to be laid before Parliament.

164—Regulations

This clause is a standard regulation-making power.

Schedule 1—Repeal of Children's Protection Act 1993

1—Repeal of Children's Protection Act 1993

This clause repeals the current Children's Protection Act 1993.

Debate adjourned on motion of Hon. T.J. Stephens.