Children and Young People (Safety) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 13 April 2017.)

The Hon. R.L. BROKENSHIRE (15:39): I rise on behalf of Australian Conservatives to speak to the second reading of the bill and advise the house that, in principle, Australian Conservatives will be supporting the bill. However, I advise the house that I have been in contact electronically with all members to let them know that we have tabled amendments to the bill.

The background to the bill is that on 15 August 2014, Justice Margaret Nyland received a commission from the Governor to conduct an inquiry into the state's child protection system. This followed years and years of concern being raised in the parliament, the media and community regarding what was seen as inappropriate and inadequate support for the protection of children.

In fact, the royal commission of Chief Justice Nyland came after two other select committees into this matter—one completed and another one still going. It comes on the back of Robyn Layton QC's report that she provided to this government in 2007 or 2008, and also on the back of Justice Mullighan's inquiry. There have been many inquiries, commissions and reports into the concerns facing the protection of vulnerable children in our state, both vulnerable children generally under the care of their parents and also those under the guardianship of the minister.

On 5 August 2016, the commissioner provided a report to the Governor which contained 260 recommendations. Of those 260 recommendations, I am advised that the government accepted 256. This bill will repeal the Children's Protection Act 1993. The guiding principle is set out early on in the bill about the value and importance of children and young people. Clause 7 of the bill provides that the paramount consideration throughout the entire bill is the protection of children and young people from harm.

Clause 8 then provides further detail canvassing the needs of children and young people, including to have a voice and be heard and have their views considered, for love and attachment, for self-esteem and to achieve their full potential. Other considerations that must be taken into account under the bill are subject to the primary objective of the bill, which is the protection and safety of children and young people.

Regarding drug testing parents of at-risk children, the government gives the chief executive officer the power to compel parents of at-risk children to undergo drug and alcohol tests without needing to obtain a court order. Currently, that CEO would need to obtain a court order. The bill includes an offence for not submitting to drug or alcohol testing, which attracts a penalty of up to six months' imprisonment, something the Australian Conservatives very much support. In fact, we are moving amendments to toughen that up.

The regulations will include the requirement that test results be reported directly to the chief executive, and the chief executive has an obligation that all reports of children at risk of abuse or neglect are, one, assessed and, two, actioned. Again, we have put amendments forward to strengthen these provisions. It also deals with the removal of children. The current measures under the Children's Protection Act of removing and giving temporary guardianship to the chief executive of a child born to an offender found guilty of qualifying offences will be maintained. There are provisions in the bill for an emergency removal of the child where they are at risk of serious harm. Again, I flag that Australian Conservatives has amendments to strengthen that area.

The bill contains provisions dealing with the intervention and placement of a child or children or young person at risk of harm. The principles underpinning intervention include timely action and decision-making. Action should be taken as early as possible in order to promote stability for the child. Clause 11 of the bill confirms that a child or young person removed pursuant to legislation should be placed in a safe, nurturing, stable and secure environment, preferably with someone known to the child or young person, and that the custody and guardianship functions currently undertaken by the Minister for Education and Child Development will instead be undertaken by the chief executive of the Department for Child Protection.

In the committee stage, I flag that we want to explore that further because we do not want to see this take away ultimate responsibility from the minister of the day. We understand that from a practical operational sense they would want this to go to the chief executive, but it should not take away the ultimate responsibility from the minister of the Crown who is responsible for the protection of children on behalf of the government.

There are reporting obligations in responding to reports. There has been criticism from the Law Society, SACOSS and members of SACOSS. In some general criticisms, former South Australian Medical Association president, Dr Michael Rice, states that there are no mechanisms for primary intervention and that help is initiated only after an incident or accident. He goes on to say that prevention is better than cure.

There are issues that we will be looking at in the committee stage regarding female genital mutilation. I know there has been a lot of concern expressed by commissioners responsible for children's protection about this matter. It is certainly a matter that is of huge concern to Australian Conservatives.

I will go into detail during the committee stage on the four amendments that Australian Conservatives have put up. I will be happy to go into detail on the reasons we have put them up. We look forward to listening to and reading debate and input from other colleagues and other parties, but it is time that we get very serious about urgently doing more to protect vulnerable young children in South Australia. To be fair, the government has made an attempt to improve the situation and therefore we do support the general principle of that. However, we will be listening intently during the committee stage and observing amendments intensely and asking colleagues to do the same with our amendments.

The Hon. J.E. HANSON (15:46): I rise to speak in support of the bill. While I am fairly new to this place, I acknowledge a lot of the comments from Hon. Mr Brokenshire with regard to the history of the bill. The bill is a complete overhaul of the current Children's Protection Act. It is one of a number of reforms to the child protection system that are being delivered by this government. The bill supports the government's response to the Child Protection Systems Royal Commission and provides the foundation for a new and reforming Department for Child Protection.

Importantly, it makes clear the role of the department and its employees when children and young people and families have come to the attention of the department. This begins, in clause 7, with the easily understood paramount consideration of protecting children and young people from harm. This paramount consideration was introduced into the Children's Protection Act following a recommendation of the Coroner from the inquest into the death of Chloe Lee Valentine. I am pleased to see it being maintained in the bill.

Importantly, the bill provides a greater focus on children and young people and greater recognition of carers. A number of amendments were filed by government and made in the other place, which further refined and enhanced these aspects of the bill. These included removal of provisions which allowed the chief executive to not investigate a complaint by a child or a young person if that complaint was vexatious or frivolous; removal of imprisonment as a penalty to carers and a significant reduction in the financial penalties applicable; refinement of provisions to ensure that children and young people will not be found guilty of an offence for failing to comply with an order made by the court; and shifting the onus onto the department to provide children or young people leaving care with a transition plan.

I support the increased recognition and rights of carers under the bill, both in terms of foster and kinship recognition. Carers are an integral part of our child protection system and the government acknowledges the importance of supporting carers, listening to carers and involving carers in decision-making. I commend the bill to the council.

The Hon. J.M. GAZZOLA (15:49): I rise to speak in support of the Children and Young People (Safety) Bill 2017. In November 2016, the South Australian government committed to a complete overhaul of the child protection and child wellbeing systems in its response to the Child Protection Systems Royal Commission: A fresh start. As part of this large-scale reform, the Children and Young People (Safety) Bill 2017 was introduced to parliament on 14 February this year, following community consultation in December 2016 and January 2017.

The state government is committed to working with the community and views their dedication to the reform of child protection and child wellbeing systems as integral to its success. That the government received such numerous and comprehensive feedback, and that at times this feedback revealed a strong divide in the community sectors on certain issues, reflects the understandably highly emotive responses to child abuse and neglect in our society.

Child protection is a truly wicked problem and, sadly, no government has as yet created the perfect child protection system. However, the government's reforms for our child protection and child development systems have given us the best possible blueprint for supporting our vulnerable families and ensuring the safety and wellbeing of our children and young people.

The bill is an integral aspect of our reforms as the legislative framework for how the Department for Child Protection will respond to allegations of child abuse and neglect. I support the paramount consideration of the bill being the protection of children and young people from harm. It is the position of this government that at all times the safety of children and young people must be the paramount consideration when applying a law to protect children from further harm.

It is important to note that consultation identified a divide in the community's views regarding this paramount consideration. Some advocated for acting in the child or young person's best interests as the paramount consideration. AnglicareSA advocated in its original submission for the paramount consideration to be further strengthened by removing the qualifying language of 'so far as reasonably practicable'. I am pleased to see this amendment was made in the other place. I commend the bill to the council.

The Hon. T.T. NGO (15:51): I rise to speak in support of the Children and Young People (Safety) Bill 2017. I note the extensive work that underpins the bill. It comes following an exhaustive two-year-long royal commission, including 260 recommendations from Commissioner Nyland. It comes following a significant consultation process, both formal and informal, conducted by the government. It comes following the government's formal response to the royal commission's findings and the release of a draft bill in November 2016 and formal consultation until late January 2017.

Of course, quite rightly, many groups have a keen interest in this area of policy and, unsurprisingly, many of those groups have different views on what they want to see reflected in the bill. This has led to some vocal criticism. However, I am pleased to report some of the positive feedback received by the government. The Guardian for Children and Young People provided feedback on the 2016 draft of the bill and then provided further feedback on the bill before us in this place. I am pleased to say that the guardian has outlined some particularly positive aspects of the bill, including the inclusion of the Charter of Rights for Children and Young People in Care.

The bill incorporates child safety environment provisions, which feature some helpful new or revised sections that reflect input made during the recent consultation process, especially the inclusion of chapter 8—Providing safe environments for children and young people. These important protective measures apply to prescribed organisations, including, but not limited to, state authorities as well as persons or bodies which provide a service or undertake activities that constitute child-related work.

In addition, the further development of the SACAT clauses requires that children and young people be given a reasonable opportunity to present their views in SACAT proceedings, whether or not a legal practitioner is representing them. This ensures the voices of children and young people are heard on matters relating to their ongoing care and protection. Furthermore, the bill gives support to the Aboriginal and Torres Strait Islander Child Placement Principle through reinsertion of a requirement for the chief executive or the courts to engage and consult with the gazetted Aboriginal or Torres Strait Islander organisation when determining whether to place an Aboriginal or Torres Strait Islander child or young person in care.

Another positive aspect of the bill is the addition of 'neglect' in the definition of harm. It serves to reinforce the fact that neglect is a form of child abuse and therefore falls within the ambit of the bill. The government has provided a robust response to the royal commission's findings and has taken on board some valuable feedback from the community and key stakeholders. I therefore commend the bill to the council.

The Hon. A.L. McLACHLAN (15:55): I rise to speak to the Children and Young People (Safety) Bill. I speak on behalf of my Liberal colleagues. I advise the honourable members that the Liberal opposition will support the second reading of the bill. It is the intent of the Liberal Party to explore the impact of the clauses of the bill in detail and to inform itself from the debate at the committee stage on the implications of the bill as a whole on child protection in South Australia.

Honourable members will be aware this is our practice in all but exceptional circumstances. I make this point as there have been ardent calls from community groups for the bill to be voted down because it is manifestly inadequate and does little to improve upon the extant legislation in force. The Liberal Party believes that it is through debate that ideas can be truly tested and adequately explored. In my reading, I discovered an instructive quote from the Finnish academic Juha Hämäläinen:

Principally, human beings have always understood that children need to be cared for and protected. Paradoxically, child protection activities and the philosophy of the rights of the child are there because this is not or has not been true.

We, as a community, should rightly question why, in the modern era, we continue to fail to meet the needs of our citizens when we have, as compared to the past, all the resourcing and focus on caring for the vulnerable, young and old in our society. We have a government department filled with bureaucrats devoted to it, we have academics devoted to it, we have front-line staff devoted to it, and we have not-for-profits devoted to it, yet we still managed to fail, and now here we are, debating in this chamber another iteration of the legislative framework protecting children.

From my personal perspective, all failures of this magnitude are seated in a lack of leadership—an inability to do what is right and just, as well as taking accountability for real and meaningful action. We have the manifestation of a culture which prides itself on purposefully leaving the hard work to others, not asking questions in case something is revealed and refusing to drive performance and compliance. The behaviour of the ministers of this Labor government bring to mind the proverb of the three wise monkeys: see no evil, hear no evil and speak no evil.

In Western tradition, the proverb refers to a lack of moral responsibility of those who refuse to acknowledge impropriety, look the other way or feign ignorance. The Labor government should be held accountable for the failures in child protection. Its failure to protect children in its care has cut away at its self-proclaimed progressive credentials. The Labor brand no longer stands for the progression of the worker, but the regression of our community values and attributes. If only the collegium of the Labor Party spent less time with their progressive university colleagues and other fellow travellers focusing on social engineering, and more time on the real, complex and difficult issues facing families, parents and children today, we may not have found ourselves on this road.

This is a stain that will never be removed from the record of this Labor government. It will and should overshadow any hubris from this government's members that their regime has contributed or achieved any self-styled progressive ideal. We are here now, debating this bill because the Labor government has failed to provide the leadership required to protect the most vulnerable children in our state. All that remains is to try to develop the best legislative framework going forward that meets the expectations of the people of South Australia: this is what the Liberal Party is endeavouring to achieve.

The Liberal Party comes to this debate with goodwill. While it will continue to hold this government to account for its grotesque failings, at all times it is conscious of its solemn obligation to develop legislation that is sound and effective and restores community confidence.

I draw honourable members' attention to the litany of reports, inquiries and commissions into the care of our children. We had the Layton report in 2003, followed by the Mullighan inquiry in 2008. That same year there was a select committee into Families SA. That committee reported in 2009. Then there was the Debelle inquiry, which reported in 2013. The same year we had a review by Allen of Families SA, as well as one by Moss on internal record keeping. Finally, there was the Nyland royal commission.

On top of this was a collection of findings by the Coroner in respect of particular tragic cases. The government cannot argue that it was not aware of the deep dysfunction in our government assets that were tasked to affect the will of the government and protect children. I have assumed, probably incorrectly, that there was a desire by this government to actually affect real and lasting outcomes for the vulnerable.

A genuinely progressive child protection education approach should be judged on how effectively it assists children to transcend the circumstances of their birth, and how comprehensively it equips them to take control of their own lives. Having regard to this test, we as a community are sadly observing a failure on a grand and tragic scale. The Labor government has breached its sacred duty to its peoples.

The question before us in this debate is: when should we intervene in the life of a family, and how should we execute that intervention? It is, should be and always will be an extremely difficult and sensitive decision for the state to intervene in the life of a child and the family. The principles that govern these decisions will be the subject of much debate at the committee stage should the bill pass the second reading.

The nurturing of children has occupied the minds of community elders for generations. While the ancient Athenians prided themselves on raising their children, their myths and legends abound with stories of child abuse. It is clear that the moral obligations of parenting was front of mind. All communities, regardless of their cultural foundation or their environment, place great importance on the protection and nurturing of their children. Any response to child abuse and neglect has been marked by a tension between two approaches—an emphasis on rescuing children on the one hand and efforts to support the family on the other.

There are those whose first instinct is to seek to remove the children from homes to protect them from poverty and maltreatment. In contrast, there is the family support approach, which focuses on ameliorating social and environmental factors which contribute to parental stress and maltreatment of the children. Children grow and thrive in the intimacy of the family unit. Parents should be free to raise their children without undue interference from the state. However, where there is family dysfunction, children—unless close to age—are not always able to request community or government assistance. Therefore, the state must, in certain circumstances, breach the intimacy and privacy of the family and seek to protect the child.

The essence of this debate is striking the right and morally grounded balance between the community's obligation to protect a child and place the appropriate value on the benefits of the family unit. There is an increasing movement by many with an interest in these difficult issues that the child's welfare and the welfare of the family go hand in hand and, further, that government policy should also focus on building and educating the family, howsoever defined, as much as on intervention when difficulties merit such government action.

I make this point because, to solve the underlying cause of family dysfunction, legislation alone will not heal the wounds and sadness that still abounds in our community. Only with a strong commitment by the government and our community as a whole can we take the first steps on a long road to create a system that will help our children grow into happy and healthy adults.

The Liberal Party is listening to the community; the Liberal Party is consulting with community groups. We note the strong views of the Attorney in the other place. We note the strong views of community groups that are advocating that the bill should not pass into law, and retain extant laws at the very least. We are considering carefully the joint statement from the following organisations in respect of amendments to the bill: the Law Society of South Australia, the Australian Medical Association, the South Australian Council of Social Services, the Child and Family Welfare Association, the Council of Care of Children, the Youth Affairs Council and the Child Protection Reform Movement.

Honourable members, despite the rancour over issues within the bill, we must remind ourselves that, regardless of our political orientation, we all share the objective that we seek the best legislative framework for the protection of our children in need. I would like to think that we in this chamber are not motivated to protect our children for economic, cultural or social reasons, but rather from a fundamental moral conviction that children need to be loved, cared for and have their needs attended to, an idea so basic that it binds our society and guides us, as individuals, in how we act in our lives.

Debate adjourned on motion of Hon. T.A. Franks.