Bills

Children's Protection Law Reform (Transitional Arrangements and Related Amendments) Bill

Introduction and First Reading

Received from the House of Assembly and read a first time.

Second Reading

The Hon. K.J. MAHER (Minister for Employment, Minister for Aboriginal Affairs and Reconciliation, Minister for Manufacturing and Innovation, Minister for Automotive Transformation, Minister for Science and Information Economy) (00:13): I move:

That this bill be now read a second time.

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

Leave granted.

The Children's Protection Law Reform (Transitional Arrangements and Related Amendments) Bill 2017 (the Bill) makes the transitional arrangements and consequential amendments necessary to commence the Child Safety (Prohibited Persons) Act 2016 (the Prohibited Persons Act) and the Children and Young People (Safety) Act 2017 (the Safety Act). Neither the Safety nor Prohibited Persons Acts include transitional arrangements or consequential amendments to existing legislation. Therefore, before these two Acts can commence, further legislation must be passed.

The Prohibited Persons Act will strengthen background checks for people wanting to work or volunteer with children under 18 years old. It creates a stronger legislative scheme, ensuring that a person who is assessed as being of high risk to the safety of children will be prohibited from working or volunteering with them, and that it is an offence to allow this to occur. The Prohibited Persons Act will also eliminate the current two-tiered arrangement, whereby some organisations relied on a National Criminal History Check instead of a check undertaken through the Department for Communities and Social Inclusion's Screening Unit (the DCSI SU).

The Safety Act will provide the necessary powers for the Chief Executive of the Department for Child Protection (the DCP) to protect children and young people from harm and to make provision for the alternative care of children and young people under the custody or guardianship of the Chief Executive, amongst other measures. Once commenced, the Safety Act will repeal the Children's Protection Act 1993 (the CP Act). The Bill also provides an opportunity to make a number of refinements to the Safety Act at the request of the DCP.

To support the commencement of the Prohibited Persons Act, the Bill provides for transitional arrangements whereby a DCSI SU screening will be recognised as a working with children check under the Prohibited Persons Act for a period of three years from the date it was done. This approach is supported by the recent initiative whereby persons who have undertaken a DCSI SU screening check are subjected to continuous monitoring, so that criminal convictions and child protection data is matched on a daily basis to the DCSI SU database. This recognition does not preclude the prescribed screening unit (the DCSI SU) from undertaking a working with children check and from finding the person to be a 'prohibited person' but it will mean that that a person who has had a DCSI SU screen is not required to re-apply for a working with children check until three years from the date of the DCSI SU screen.

People in the community who currently rely on a criminal history check to volunteer or work with children will also be actively encouraged to obtain a DCSI SU screen prior to the commencement of the Bill.

The registration of teachers is undertaken via the Teachers Registration and Standards Act 2004 (the TRS Act) by the Teachers Registration Board (the TRB).

In order to be employed as a teacher, a person must be registered under the TRS Act. The Bill makes amendments to require any person wanting to be registered as a teacher to have undertaken a working with children check and not be a prohibited person. However, in order to stagger the need for registered teachers to undertake a working with children check, this requirement will only apply at the time that a person applies for registration the first time or is renewing their registration, with registration occurs every three years.

Similar transitional arrangements have been put in place for the other persons, who will not be required to undertake a working with children check on commencement, but will be able to reply on a current criminal history check for a period of 3 years or until their accreditation or registration expires, including:

persons who are employed in a children's services centre under the Children's Services Act 1985;

registered health practitioners as defined under the Health Practitioner Regulation National Law (South Australia);

employees in training centres established under the Family and Community Services Act 1972 (the FACS Act) or the Youth Justice Administration Act 2016;

persons who are the holder of a current accreditation for a passenger transport service operated by the person granted under section 27 of the Passenger Transport Act 1994, the holder of a current accreditation for a driver of a public passenger vehicle granted under section 28 of the Passenger Transport Act 1994 or the holder of a current accreditation for an operator of a centralised booking service granted under section 29 of the Passenger Transport Act 1994.

To support the commencement of the Safety Act, a number of transitional provisions are required.

As mentioned, a number of refinements are proposed to the Safety Act in the Bill, in addition to related amendments to other Acts, for reasons I will now explain.

The Bill amends the Births, Deaths and Marriages Registration Act 1996 (the BDMR Act) by inserting a new provision which will apply specifically to children and young people under the guardianship of the Chief Executive of the DCP. Section 25 of the BDMR Act sets out how parents can apply to register a change of a child's name. Currently under section 25 of the BDMR, parents may apply to the Registrar if:

(a) the child's birth is registered in the State; or

(b) (i) the child was born outside Australia; and

(ii) the child's birth is not registered in another State or Territory; and

(iii) the child has been resident in the State for at least 12 consecutive months immediately before the date of the application.

Section 25(2) of the BDMR Act prescribes the grounds for changing a child's name if there is only one parent provided that:

(a) the applicant is the sole parent named in the registration of the child's birth under this Act or any other law; or

(b) there is no other surviving parent of the child; or

(c) the Court approves the proposed change of name.

Section 25(3) of the BDMR Act states that the Court may, on application by a child's parent, approve a proposed change of name for the child if satisfied that the change is in the child's best interests.

The amendment in the Bill seeks to exclude the operation of section 25 of the BDMR Act and establishes a separate scheme for children and young people under the guardianship of the Chief Executive. I am advised that this amendment is necessary as the current provisions of the Safety Act (yet to commence operation) and the CP Act are ambiguous in relation to whether the Minister or the Chief Executive can make such an application and whether the Court has power to make such an order.

I am advised by the DCP that children and young people under guardianship of the Minister and/or their long term guardians or carers make a formal request of the DCP to change the child's name approximately twice a year. Typically, such a request is made by the child or young person in question (with the support of their guardian), who is aggrieved and saddened by the fact that they do not share the same surname as their guardian and the guardian's family unit. This amendment makes sense to further strengthen the existing measures that promote permanence and a sense of belonging for children and young people under long term guardianship.

The amendment to section 25 of the Births Deaths and Marriages Registration Act 1996 proposes to equip the Chief Executive with an own motion power and/or upon application of the guardian or guardians of the child or young person to the Chief Executive to change the child's name. The Chief Executive may, by notice in writing, direct the Registrar to register a change of the name of a child in relation to whom the section applies. This is a discretionary power of the Chief Executive and when deciding whether to exercise this power by own motion or in response to an application by a guardian, the Chief Executive must consider it whether it is appropriate and in the best interests of the child to do so and must take reasonable steps to notify the parents of the proposed change of name; and have any regard to the any submission made by a parent of the child in respect of the proposed change of name. The same power will also be given to the Court, when considering long term guardianship applications to ensure this matter can be dealt with at the same time if required.

As mentioned, a number of refinements are proposed to the Safety Act in the Bill, which I will now explain. Section 107 of the Safety Act currently states that 'a person must not be employed in a licensed children's residential facility unless the person has undergone a psychological or psychometric assessment of a kind determined by the Chief Executive.' Contravention of section 107 of the Safety Act by an individual or employer attracts a significant monetary penalty.

Pursuant to section 103(d) of the Safety Act, a residential facility or a training centre established by the Minister pursuant to section 36 of the FACS Act is expressly excluded from the definition of 'children's residential facility' set out in section 103 of the Safety Act, thereby omitting these staff from the scope of such testing. To correct this inconsistency, a new provision is required to be added to the Safety Act to capture persons employed in a residential care facility established by the Minister under section 36 of the FACS Act and to make it an offence to employ a person without having undergone such testing. A mirror provision is proposed to be inserted into the Youth Justice Act 2016, to capture persons employed in training centres, where a number of young people under the guardianship of the Minister are also detained..

Another reform measure contained in the Bill is to clarify that that once a long term guardianship order is made pursuant to sections 89 to 91 of the Safety Act, a long term guardian will not be subject to the requirement to obtain a WWCC. This amendment has been drafted to ensure that an exemption from a WWCC is tied to a prescribed child only, so that if the said child leaves the care of that guardian and assumes care of another child under the guardianship of the Chief Executive, a WWCC will again be required.

One of the consequential amendments of the Bill is to delete section 74 of the FACS Act, a provision addressing assistance to persons caring for children, as a result of this matter being dealt with at 112 of the Safety Act. Since the passage of the Safety Act, some have expressed concern that s112 of the Safety Act is not broad enough to capture the breadth of payments made currently by the DCP to support children and young people, which includes carers continuing to care for children who are 18 and over for example. The Bill corrects this.

Another amendment is required to section 164 of the Safety Act, which addresses confidentiality for persons engaged or formerly engaged in the administration, operation or enforcement of the Safety Act. It is proposed to amend section 164 to include an exception which allows the Chief Executive to authorise disclosure of personal information.

A final amendment to the Safety Act concerns liability. As the Safety Act does not contain a provision providing blanket immunity to the Crown, there is a possible argument that the Crown would nevertheless be vicariously liable for the negligent acts of an employee who is responsible for the operation, enforcement or administration of the Safety Act. In order to mitigate this, the Bill amends section 58 of the Safety Act to expressly prescribe that no liability in tort attaches to the Crown, the Minister, the Chief Executive or any other employees of the Department.

Finally, the Commonwealth has identified that the Child Sex Offenders Registration Act 2006 requires amendment to capture four Commonwealth offences related to child exploitation material, namely section 233BAB of the Customs Act 1901 (Cth) and sections 273.5 to 273.7 (inclusive) of the Criminal Code Act 1995 (Cth).

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

4—Interpretation

This clause defines terms used in the measure.

Part 2—Transitional provisions relating to Child Safety (Prohibited Persons) Act 2016

5—Interpretation

6—Expiry of Part

7—Certain applications for assessments of relevant history taken to be application for working with children check

8—Recognition of certain assessments of relevant history as working with children checks

9—Transitional provisions—teachers

10—Transitional provisions—persons employed under Children's Services Act 1985

11—Transitional provisions—health practitioners

12—Transitional provisions—foster parents

13—Transitional provisions—licensed foster care agencies

14—Transitional provisions—licensed children's residential facilities

15—Transitional provisions—employees in training centres etc

16—Transitional provisions—passenger transport services

17—Evidentiary provision

These clauses make transitional provisions in respect of the commencement of the Child Safety (Prohibited Persons) Act 2016.

Part 3—Transitional provisions relating to Children and Young People (Oversight and Advocacy Bodies) Act 2016

18—Interpretation

19—Expiry of Part

20—Continuation of members of Child Death and Serious Injury Review Committee

21—Continuation of chair as presiding member

These clauses make transitional provisions in respect of the commencement of the Children and Young People (Oversight and Advocacy Bodies) Act 2016.

Part 4—Transitional provisions relating to Children and Young People (Safety) Act 2017

22—Interpretation

23—References to working with children checks and the Child Safety (Prohibited Persons) Act 2016 etc

24—Chief Executive to be guardian of certain children and young people

25—Chief Executive to have custody of certain children and young people

26—Continuation of voluntary custody agreements

27—Continuation of approved foster parents as approved carers

28—Continuation of licensed foster care agencies

29—Continuation of licence to maintain children's residential facilities

30—Notifications of abuse or neglect and investigations etc under repealed Act to continue

31—Continuation of family care meetings under repealed Act

32—Orders relating to access to child or young person to continue as determination of Chief Executive

33—Continuation of certain delegations under Family and Community Services Act 1972

34—References to Families SA

35—Application of Chapter 7 Part 8 of Children and Young People (Safety) Act 2017 to certain children and young people

36—Certain policies and procedures taken to satisfy Chapter 8 of Children and Young People (Safety) Act 2017

37—Certain persons the subject of interim registration taken to be approved carers under Children and Young People (Safety) Act 2017

38—Certain commercial carers taken to be approved carers under Children and Young People (Safety) Act 2017

These clauses make transitional provisions in respect of the commencement of the Children and Young People (Safety) Act 2017.

Part 5—Amendment of Births, Deaths and Marriages Registration Act 1996

39—Amendment of section 25—Application to register change of child's name

40—Insertion of section 25A

41—Amendment of section 38A—Notification by court appointed guardians

These clauses make related amendments to the Births, Deaths and Marriages Registration Act 1996 consequent upon the enactment of the Child Safety (Prohibited Persons) Act 2016, the Children and Young People (Oversight and Advocacy Bodies) Act 2016 and the Children and Young People (Safety) Act 2017.

Part 6—Amendment of Carers Recognition Act 2005

42—Amendment of section 5—Meaning of carer

This clause makes a related amendment to the Carers Recognition Act 2005 consequent upon the enactment of the Child Safety (Prohibited Persons) Act 2016, the Children and Young People (Oversight and Advocacy Bodies) Act 2016 and the Children and Young People (Safety) Act 2017.

Part 7—Amendment of Child Safety (Prohibited Persons) Act 2016

43—Amendment of section 5—Interpretation

44—Amendment of section 8—Meaning of assessable information

These clauses make related amendments to the consequent upon the enactment of the Child Safety (Prohibited Persons) Act 2016, the Children and Young People (Oversight and Advocacy Bodies) Act 2016 and the Children and Young People (Safety) Act 2017.

Part 8—Amendment of Child Sex Offenders Registration Act 2006

45—Amendment of Schedule 1—Class 1 and 2 offences

This clause makes a related amendment to the Child Sex Offenders Registration Act 2006 consequent upon the enactment of the Child Safety (Prohibited Persons) Act 2016, the Children and Young People (Oversight and Advocacy Bodies) Act 2016 and the Children and Young People (Safety) Act 2017.

Part 9—Amendment of Children and Young People (Oversight and Advocacy Bodies) Act 2016

46—Insertion of section 13A

47—Amendment of section 26—Functions and powers of Guardian

48—Amendment of section 37—Functions of the Committee

These clauses make related amendments to the Children and Young People (Oversight and Advocacy Bodies) Act 2016 consequent upon the enactment of the Child Safety (Prohibited Persons) Act 2016, the Children and Young People (Oversight and Advocacy Bodies) Act 2016 and the Children and Young People (Safety) Act 2017.

Part 10—Amendment of Children and Young People (Safety) Act 2017

49—Amendment of section 28—Chief Executive to prepare case plan in respect of certain children and young people

50—Amendment of section 32—Chief Executive must assess and take action on each report indicating child or young person may be at risk

51—Amendment of section 33—Chief Executive may refer matter

52—Amendment of section 53—Orders that can be made by Court

53—Amendment of section 90—Long-term care plan to be prepared

54—Amendment of section 103—Interpretation

55—Insertion of Chapter 7 Part 7A

56—Insertion of section 112A

57—Amendment of section 163—Protection of identity of persons who report to or notify Department

58—Insertion of section 166A

59—Amendment of section 170—Regulations

60—Amendment of Schedule 1—Repeal and related amendment

These clauses make related amendments to the Children and Young People (Safety) Act 2017 consequent upon the enactment of the Child Safety (Prohibited Persons) Act 2016, the Children and Young People (Oversight and Advocacy Bodies) Act 2016 and the Children and Young People (Safety) Act 2017.

Part 11—Amendment of Coroners Act 2003

61—Amendment of section 3—Interpretation

This clause makes a related amendment to the Coroners Act 2003 consequent upon the enactment of the Child Safety (Prohibited Persons) Act 2016, the Children and Young People (Oversight and Advocacy Bodies) Act 2016 and the Children and Young People (Safety) Act 2017.

Part 12—Amendment of Criminal Law Consolidation Act 1935

62—Amendment of section 5—Interpretation

63—Amendment of section 49—Unlawful sexual intercourse

64—Amendment of section 50—Persistent sexual exploitation of a child

65—Amendment of section 57—Consent no defence in certain cases

66—Amendment of section 63B—Procuring child to commit indecent act etc

These clauses make related amendments to the Criminal Law Consolidation Act 1935 consequent upon the enactment of the Child Safety (Prohibited Persons) Act 2016, the Children and Young People (Oversight and Advocacy Bodies) Act 2016 and the Children and Young People (Safety) Act 2017.

Part 13—Amendment of Education and Early Childhood Services (Registration and Standards) Act 2011

67—Amendment of section 3—Interpretation

68—Amendment of section 13—Meaning of certain terms in Education and Care Services National Law (South Australia) for the purposes of this jurisdiction

69—Insertion of section 13A

70—Amendment of section 22—Composition of Board

71—Amendment section 23—Conditions of membership

72—Amendment of section 27—Registrars of Board

73—Amendment of section 28—Staff of Board

These clauses make related amendments to the Education and Early Childhood Services (Registration and Standards) Act 2011 consequent upon the enactment of the Child Safety (Prohibited Persons) Act 2016, the Children and Young People (Oversight and Advocacy Bodies) Act 2016 and the Children and Young People (Safety) Act 2017.

Part 14—Amendment of Family and Community Services Act 1972

74—Amendment of section 6—Interpretation

75—Amendment of section 8—Delegation

76—Repeal of Part 2 Division 3

77—Repeal of Part 2 Division 5

78—Amendment of section 23—Special welfare funds

79—Amendment of section 36—Establishment of facilities and programmes for children

80—Repeal of Part 4 Division 2 Subdivision 3

81—Repeal of Part 4 Division 2 Subdivision 4

82—Repeal of Part 4 Division 2 Subdivision 8

83—Amendment of section 98—Liability of near relatives for maintenance of child

84—Amendment of section 99—Issue of summons for maintenance

85—Amendment of section 104—Order for payment of preliminary expenses

86—Amendment of section 105—Where order made during pregnancy

87—Amendment of section 111—Power of Chief Executive to accept settlement in full

88—Amendment of section 117—Order for payment of medical and like expenses

89—Amendment of section 142—Evidentiary provision

90—Amendment of section 145—Variation of order against near relative of child

91—Amendment of section 151—Orders may direct mode of payment

92—Amendment of section 156—Order for delivery of attached property

93—Amendment of section 158—Liability of persons contravening order

94—Amendment of section 159—Collection by police of money due to Chief Executive

95—Amendment of section 160—Caveats

96—Amendment of section 161—Warrant to enforce payments under orders

97—Amendment of section 163—Sale under warrant

98—Amendment of section 164—Assurances to purchaser

99—Amendment of section 165—Issue of warrant without previous demand

100—Amendment of section 166—Effect of payment under warrant

101—Amendment of section 176—Application for attachment of earnings order

102—Amendment of section 177—Employer to make payments under order

103—Amendment of section 179—Discharge, suspension or variation of order

104—Amendment of section 180—Cessation of attachment of earnings order

105—Amendment of section 183—Notice to defendants of payments made

106—Amendment of section 189—Payments by Crown etc

107—Amendment of section 195—Proof of payment or non-payment under maintenance order

108—Amendment of section 197—Collector of Maintenance, Deputy Collector of Maintenance and Assistant Collectors of Maintenance

109—Repeal of section 236

110—Amendment of section 236A—Hindering a person in execution of duty

111—Amendment of section 240—Evidentiary provision

112—Amendment of section 242—Chief Executive may require report

113—Repeal of section 250

114—Repeal of section 250A

115—Amendment of section 251—Regulations

These clauses make related amendments to the Family and Community Services Act 1972 consequent upon the enactment of the Child Safety (Prohibited Persons) Act 2016, the Children and Young People (Oversight and Advocacy Bodies) Act 2016 and the Children and Young People (Safety) Act 2017.

Part 15—Amendment of Intervention Orders (Prevention of Abuse) Act 2009

116—Amendment of section 3—Interpretation

117—Amendment of section 10—Principles for intervention against abuse

118—Amendment of section 16—Inconsistent Family Law Act or State child protection orders

119—Amendment of section 20—Application to Court for intervention order

120—Amendment of section 23—Determination of application for intervention order

121—Amendment of section 26—Intervention orders

These clauses make related amendments to the Intervention Orders (Prevention of Abuse) Act 2009 consequent upon the enactment of the Child Safety (Prohibited Persons) Act 2016, the Children and Young People (Oversight and Advocacy Bodies) Act 2016 and the Children and Young People (Safety) Act 2017.

Part 16—Amendment of Mental Health Act 2009

122—Amendment of section 86—Minister's functions

This clause makes a related amendment to the Mental Health Act 2009 consequent upon the enactment of the Child Safety (Prohibited Persons) Act 2016, the Children and Young People (Oversight and Advocacy Bodies) Act 2016 and the Children and Young People (Safety) Act 2017.

Part 17—Amendment of Residential Tenancies Act 1995

123—Amendment of section 89A—Termination based on domestic abuse

124—Amendment of section 105UA—Termination based on abuse of rooming house resident

125—Amendment of section 112—Restraining orders

These clauses make related amendments to the Residential Tenancies Act 1995 consequent upon the enactment of the Child Safety (Prohibited Persons) Act 2016, the Children and Young People (Oversight and Advocacy Bodies) Act 2016 and the Children and Young People (Safety) Act 2017.

Part 18—Amendment of Spent Convictions Act 2009

126—Amendment of clause 13—Exclusions

127—Amendment of clause 13A—Exclusions may not apply

128—Amendment of Schedule 2—Provisions relating to proceedings before a qualified magistrate

These clauses make related amendments to the Spent Convictions Act 2009 consequent upon the enactment of the Child Safety (Prohibited Persons) Act 2016, the Children and Young People (Oversight and Advocacy Bodies) Act 2016 and the Children and Young People (Safety) Act 2017.

Part 19—Amendment of Summary Offences Act 1953

129—Substitution of section 66V

This clause makes a related amendment to the Summary Offences Act 1953 consequent upon the enactment of the Child Safety (Prohibited Persons) Act 2016, the Children and Young People (Oversight and Advocacy Bodies) Act 2016 and the Children and Young People (Safety) Act 2017.

Part 20—Amendment of Summary Procedure Act 1921

130—Amendment of section 99AAC—Child protection restraining orders

131—Amendment of section 99KA—Special restrictions relating to child protection restraining order proceedings

These clauses make related amendments to the Summary Procedure Act 1921 consequent upon the enactment of the Child Safety (Prohibited Persons) Act 2016, the Children and Young People (Oversight and Advocacy Bodies) Act 2016 and the Children and Young People (Safety) Act 2017.

Part 21—Amendment of Teachers Registration and Standards Act 2004

132—Amendment of section 3—Interpretation

133—Amendment of section 9—Membership of Teachers Registration Board

134—Amendment of section 10—Terms and conditions of membership

135—Amendment of section 21—Eligibility for registration

136—Amendment of section 22—Application for registration

137—Amendment of section 24—Conditions of registration

138—Insertion of section 24A

139—Amendment of section 28—Register

140—Amendment of section 30—Special authority for unregistered person to teach

141—Amendment of section 31—Register

142—Amendment of section 33—Cause for disciplinary action

143—Insertion of section 33A

144—Amendment of section 37—Employer to report dismissal

145—Insertion of section 52A

146—Amendment of section 61—Regulations

These clauses make related amendments to the Teachers Registration and Standards Act 2004 consequent upon the enactment of the Child Safety (Prohibited Persons) Act 2016, the Children and Young People (Oversight and Advocacy Bodies) Act 2016 and the Children and Young People (Safety) Act 2017.

Part 22—Amendment of Youth Court Act 1993

147—Amendment of section 7—Jurisdiction

This clause makes a related amendment to the Youth Court Act 1993 consequent upon the enactment of the Child Safety (Prohibited Persons) Act 2016, the Children and Young People (Oversight and Advocacy Bodies) Act 2016 and the Children and Young People (Safety) Act 2017.

Part 23—Amendment of Youth Justice Administration Act 2016

148—Amendment of section 3—Objects and guiding principles

149—Amendment of section 4—Interpretation

150—Amendment of section 10—Official visitors

151—Amendment of section 14—Training Centre Visitor's functions

152—Amendment of section 43—Community programs

153—Insertion of section 21A

These clauses make related amendments to the Youth Justice Administration Act 2016 consequent upon the enactment of the Child Safety (Prohibited Persons) Act 2016, the Children and Young People (Oversight and Advocacy Bodies) Act 2016 and the Children and Young People (Safety) Act 2017.

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