Children and Young People (Safety) (Miscellaneous) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 18 September 2018.)

The Hon. C. BONAROS (17:35): I rise to speak on the Children and Young People (Safety) (Miscellaneous) Amendment Bill 2018. The bill purports to make technical and transitional amendments that will ensure a smooth transition from the Children's Protection Act 1993 to the Children and Young People (Safety) Act 2017 from 22 October this year. It seeks to do the following. It corrects a reference to section 18 of the Marriage Act. It provides for a regulation-making power to describe the circumstances in which a reunification assessment is not required under section 54 of the act, and it clarifies that the information disclosure provisions at section 142 of the act also apply to information gathered under the Children's Protection Act.

It clarifies that where a child is removed pursuant to section 41 of the Children and Young People (Safety) Act, and cannot be returned home or into the care of another person, the child will remain in the chief executive's custody until the end of the fifth business day following the day on which the child was removed. It amends section 92 to enable the status quo to be maintained for long-term guardians who are currently responsible for determining contact arrangements for children in their care. It amends section 95 to broaden the scope of people who may apply to the Contact Arrangements Review Panel.

It amends section 161 to allow the chief executive to refer money received on behalf of children and young people to the Public Trustee to administer until the child or young person attains 18 years of age. It amends schedule 1 of the act to allow for the staged repeal of the Children's Protection Act 1993. It provides transitional arrangements for custody and guardianship orders made pursuant to section 38 of the Children's Protection Act, and it provides transitional arrangements concerning the management of children's money.

SA-Best accepts that many of these amendments are necessary to enable the proper operation of the Children and Young People (Safety) Act 2017 when it fully commences on 22 October 2018. We are also cognisant of the time frames and deadline of 22 October where phase 2 of the act comes into effect. We will not prevent the passage of the bill but we cannot agree to clause 6 of the bill. To reiterate, clause 6 provides for a regulation-making power to describe the circumstances in which a reunification assessment is not required under section 50 of the Children and Young People (Safety) Act.

Labor has filed an amendment which seeks to enshrine in legislation the proposed regulation which provides the exemption to section 50(4). We understand that Labor will not be progressing with this amendment following advice received from stakeholders. That is because, unlike the advice we originally received, clause 6 is not merely a technical amendment and goes against the intent of the bill, which is merely to make technical and transitional amendments only. We have reached out to both SACOSS and the Law Society who have kindly provided us with copies of their advice in relation to this bill and, in particular clause 6. I quote from the Law Society's correspondence as follows:

There has been no information provided to the Society that supports the proposed amendment to section 50(4) of the act at this time. In particular, the Society is unaware of any empirical data which suggests that the requirements of section 50(4) are unworkable, or that in a significant number of cases the Department of Child Protection are unable to make an assessment as to the likelihood of reunification.

I appreciate the intent of the opposition and the shadow minister in particular when drafting this amendment. In fact, had it not been for the drafting of the amendment, we would probably be none the wiser regarding the potential ramifications associated with this particular provision. Where appropriate, SA-Best will always give preference to substantive changes being incorporated into an act, rather than regulations. That is evidenced by a bill that I introduced in this place a couple of weeks ago, amending the same piece of legislation that we are dealing with today.

Given this and given the breadth of clause 6, as currently drafted, which differs vastly to the advice we received from the government at our briefing, I again indicate, just for the record, that we will not support that particular clause. I have relayed our position to the government and the opposition in the hope that we can continue to work on this between sitting weeks, if that is what the government wishes to do. It is not unreasonable for us to pass the rest of the bill today, especially given the 22 October deadline, and for the government to go back to the drawing board to ensure we get any changes to reunification provisions 100 per cent right.

I will add that we also welcome the undertakings given in the chamber by the Minister for Human Services earlier this week, confirmed by minister Sanderson, that there will be a complete review of the act, commencing in October 2019. There are many other salient points that were raised by the Hon. Tammy Franks earlier this week in relation to the bill before us and the Children and Young People (Safety) Act 2017 at the time the bill was debated, particularly in relation to early intervention. I agree with many of the points made by the honourable member and defer to her on those matters, given her history in this place when the debate first occurred.

Obviously, I was not in this place at the time, but I understand the bill, in its original form, was the subject of much heated debate. The fact that we are here considering further changes—and I have intentionally spelt out those changes during this contribution—highlights all too well that we cannot fall into the habit of rushing legislation through this place, especially when it comes to issues involving child protection. With those words, I look forward to any further comments by the Hon. Tammy Franks on this matter as well, and I indicate SA-Best's support for the bill—save and except for clause 6.

The Hon. K.J. MAHER (Leader of the Opposition) (17:42): I rise today to speak on this bill and indicate that I am the lead speaker on behalf of the opposition. The opposition will be supporting this bill, with the exception of clause 6, which, from the indications in the amendments filed by the Minister for Human Services, will be opposed by the government. The majority of this bill aims to correct minor errors and misalignments to provide for the smooth transition for the Children and Young People (Safety) Act 2017 and the Children's Protection Act.

Labor supports these minor rats and mice changes; however, clause 6 was a fundamental change with significant ramifications regarding the requirement for the chief executive to undertake a reunification assessment prior to seeking an order from the court. Labor is not seeking to stand in the way of ensuring necessary updates to the act prior to the implementation of its second phase, which is due to commence on 22 October 2018. However, we believe that the proposed government change to clause 6 was not well thought out and that no consultation had been done within the sector in relation to this fundamental change. I note that, before the government saw the light and decided not to proceed with that clause, there were amendments moved by the Labor opposition in relation to clause 6. I indicate that, obviously, Labor will not be moving those amendments.

I thank the Minister for Child Protection's department and ministerial staff for doing their best to provide briefings on the bill, particularly for the Labor shadow minister for child protection, the member for Badcoe. I note that the chief executive of the Department for Child Protection is required to undertake a reunification assessment prior to seeking an order from the Youth Court, or when a child or young person has been removed. This government's bill would have provided an exemption to this requirement where a child is removed pursuant to section 41 of the act. The condition to such an exemption would have been detailed in yet-to-be announced regulations.

The Labor shadow minister had been informed that the intent of the regulations would have been to allow the Youth Court an exemption from providing the family with a reunification report in emergency removal situations, but only where the department may not have current or sufficient information about a child or their family and circumstances to complete a reunification assessment.

The department said this exemption was required as it was not possible to prepare such a report within five days where the department had little or no contact with the family or child prior to the emergency removal of the child. However, Labor understands and is sympathetic towards the reasons behind it. It is not reflected in the clause or any associated proposed regulation. Clause 6 that would have been moved, we submitted, and its associated regulation would allow for a much broader application than I have just outlined.

We understand that it would have allowed almost all removals to be carried out under section 41, meaning that exemption could be applied to almost all removals, not just the so-called emergency or urgent situations. This exemption would have represented a very significant departure from recommendation 70(c) of the Nyland royal commission that states that the department should assess the realistic possibility of reunification at the time of the commencement of care and protection proceedings.

I note that there was much consultation that the opposition undertook with peak bodies and interested groups in relation to this and that overwhelmingly there was not support for clause 6 in the bill. We commend the bill to the house, noting that clause 6 will not be part of the bill.

The Hon. J.M.A. LENSINK (Minister for Human Services) (17:46): I thank honourable members for speaking to this amendment bill, notably the Hon. Tammy Franks, the Hon. Connie Bonaros and the Hon. Kyam Maher, on this important issue of child protection. The amendment bill is not seeking to make substantive policy changes to the act at this time. The amendments are about enabling the operational intent of the act as passed by parliament last year to be realised and to enable a smooth transition to the act at its scheduled commencement in October.

We recognise the feedback and concerns that have been raised by members. In response, I can advise, as honourable members have foreshadowed in their speeches and clearly are aware from the amendment that has been circulated, that it is the government's intention to delete clause 6 from the bill, regarding the circumstances in which a reunification assessment would not be required to be undertaken. This step has been taken in the interests of passing this legislation, not delaying the scheduled commencement of the act and the important reforms that it will bring to child protection.

In particular, two specific matters were raised by the Hon. Tammy Franks: firstly, regarding consultation on the amendment bill; no external consultation was undertaken or feedback sought to develop the amendment bill with the exception of confirming that the Public Trustee was supportive of the proposed change in clause 14. The amendment bill addresses technical and transitional issues to support the operational intent of the Children and Young People (Safety) Act 2017. The issues were identified by the department and by the Crown Solicitor's Office as they have been preparing for implementation of the new act on 22 October 2018.

Early intervention: in the early intervention space there is a range of mechanisms that have been introduced in response to the recommendations of the Nyland royal commission. These include establishing the Commissioner for Children and Young People and the Child Development Council. Both these entities are currently involved in the development of a charter for children and a child development outcomes framework. The government is currently in the process of appointing a commissioner for Aboriginal children and young people.

In relation to the best interests of the child, including the best interests of the child as part of the paramount consideration, was strongly supported by the Minister for Child Protection at the time when the Children and Young People (Safety) Act 2017 was being debated in parliament. The bill was nearly defeated by the Liberal Party, then in opposition, seeking to have the best interests of a child included; however, the parliament of the day supported the paramount consideration being a child or young person's safety.

The concept of safety as the paramount consideration was introduced into the legislative framework in April 2016 following recommendations of the Coroner about the circumstances of the death of Chloe Valentine. The department has been using safety as the paramount consideration since then. Departmental practice, guidance and training for staff about the new Children and Young People (Safety) Act 2017, which is being delivered currently, is all underpinned by safety being the paramount consideration.

With a few weeks to go before the commencement of the act, the government recognises that it would be unreasonably disruptive to the department to change the primary consideration now. In line with the minister's commitment to review the operation of the act in 12 months' time, it is appropriate that this matter form part of that review. I again thank honourable members for their support of the passage of this bill, noting that the review will be taken in 12 months' time, and commend the bill to the house.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. T.A. FRANKS: I thank the government for their response to some of the questions I raised in the second reading speech, and I remind them of their promise, made in written form to SACOSS, during the state election. I draw their attention to page 9 of the letter sent to SACOSS prior to the state election, namely:

Children and Families

For too long Labor have failed our children and their families by focusing on the acute cases where a child must be removed often after years of chronic neglect leading to a lifetime of complex behavioural issues.

A Liberal government will focus on prevention and early intervention to stem the ever increasing flow of children coming into care. We will approach this with a whole of community and a whole of government response.

We will change the legislation to require acting in 'the best interests of the child' as opposed to 'safety' which is the very low base set by this Labor government. We will also bring children removed from their families back to the guardianship of the Minister and not the CEO. We believe governments should be ultimately responsible not their staff, as envisaged by the Westminster system of government.

Legislative reform to ensure early intervention into children's best interests and addressing gaps in Young People and Safety Act

Early intervention for vulnerable children should be a priority of any Government.

In 2017, we saw the passing of the Children's Protection (Safety) Bill, which failed to implement all of Margaret Nyland's recommendations, nor dealt with any early intervention strategy or needs.

Subsequently, the Government introduced a piece of legislation designed to placate stakeholders and those concerned about early intervention and prevention. This Bill was holistic in nature and provided no real strategy for change, with stakeholders not being properly consulted either.

The Liberal Party understands a strong early intervention strategy is needed in this space, and realise to draft this legislation appropriate consultation must occur with stakeholders and those on the front line of child protection.

The Weatherill Government's failure to adopt successful early intervention strategies has seen the number of vulnerable children taken into commercial care skyrocket, and this must not continue.

My questions to the government at this point, at clause 1, are:

1. Where is the legislation?

2. When will the consultation commence on it?

3. Where is this 'early intervention' piece of legislation, as well as the commitment to further progress, not just in the review and in terms of the Westminster system of government and the responsibility of the minister, but of course the progress of the 'best interests of the child' debate?

For the benefit of the government, that letter to SACOSS was dated 8 March 2018 and forms part of the promises made by the Liberal opposition (now Marshall government), which they have vowed to keep.

The Hon. J.M.A. LENSINK: There are several issues the honourable member has raised, and I may need a few goes in responding. I am sure the honourable member will advise me if I do not provide a fulsome and adequate response.

This particular piece of legislation is not the one anticipated to broadly review the policy, and policy failings generally that need to be addressed, and the problems that were identified—largely, I think, by the department itself—in relation to the legislation passed last year. It is a bit of a fix-up, if you like, and is not intended to be a broad policy review.

In relation to early intervention, it is fair to say there is a range of activities going on. There is an Early Intervention Research Directorate that has been located in the Department of the Premier and Cabinet which has had oversight of a range of programs and which has been conducting reviews with a view to advising government about the best policy framework going forward. There is also a task force across government broadly, because we recognise that child protection is not just the responsibility of the child protection department; for instance, the Office for Women and the role of domestic violence is critical, and a range of policy approaches from Health and Education are also quite critical. That task force is providing advice to cabinet that specifically relates to early intervention.

I am not sure if that adequately answers the honourable member's questions. Clearly there is a review in relation to the matter of the best interests of the child versus safety, and in my summing up I quite clearly advised that is going to be part of that consideration.

The Hon. T.A. FRANKS: Very specifically, the promise from the Marshall opposition, now the government, was a piece of legislation on early intervention. Will the government commit to that and give us a time frame?

The Hon. J.M.A. LENSINK: At this stage I am unable to provide the honourable member with a time frame on that particular matter.

The Hon. T.A. FRANKS: Despite lacking a time frame, will the government give an assurance that there will be a piece of legislation on early intervention?

The Hon. J.M.A. LENSINK: I hate to do this to the honourable member, but I am advised that is actually a matter within the purview of the Minister for Education and so my adviser is not able to provide advice on that matter.

The Hon. C. BONAROS: The bill before us deals with the issue covered off in a private member's bill that I have introduced, and that is in relation to the loophole regarding the confessional. My advice—which I would like confirmed on the record—is that should that bill be unsuccessful in its passage, that is a matter the government will consider as part of its review going forward.

The Hon. J.M.A. LENSINK: The advice from the department is that that particular matter can be considered as part of that review.

The Hon. C. Bonaros: And will be.

The Hon. J.M.A. LENSINK: And will be, and I am sure the honourable member will advocate for that.

Clause passed.

Clauses 2 to 5 passed.

Clause 6.

The CHAIR: I note that the Leader of the Opposition has indicated in his second reading contribution that he will not move the amendment standing in his name. Can he please confirm that for the Chair?

The Hon. K.J. MAHER: On the basis that clause 6 is being opposed by the government, I am not moving the amendment standing in my name.

The CHAIR: Will the minister confirm that the government will oppose clause 6?

The Hon. J.M.A. LENSINK: That is correct.

The CHAIR: It is my understanding that the government will vote against clause 6.

The Hon. J.M.A. LENSINK: Correct.

The Hon. T.A. FRANKS: For the record, the Greens are very happy that the government will not insist on clause 6 and has decided to withdraw this clause.

Clause negatived.

Clauses 7 to 13 passed.

Clause 14.

The Hon. T.A. FRANKS: Given that this deals with the possibility of a situation where there is a payment of money for the benefit of the child through the chief executive to the Public Trustee, and that this is to be resolved with regulations, what are the potentials for the child to be able to avail themselves of the benefit of the moneys held in trust for the purposes of education prior to the time they turn 18? Will they receive the moneys when they turn 18? There is a lack of detail here. If the government could outline what they expect the regulations with regard to this clause, which is an entirely new clause, to look like, that would be of benefit, I am sure, to the operation of the act.

The Hon. J.M.A. LENSINK: Currently, the act provides for the chief executive to receive funds on behalf of a child or young person in care and provides two mechanisms for holding those funds, either depositing the money in Treasury or with an authorised deposit-taking institution. This amendment removes the option of depositing money in the Treasury and introduces an alternative option of referring the money to be administered by the Public Trustee.

There are a number of circumstances in which a child or young person in care may receive a lump sum of money. These circumstances could include the child or young person receiving a gift or inheritance, victims of crime compensation, native title compensation or royalties. Any funds held on behalf of a child or young person must be returned to the child at the point the chief executive ceases to have responsibility for the affairs of the child or young person, which will be when the child turns 18, or earlier if they leave care at a younger age.

In some instances, the Public Trustee has legal authority to continue to hold the funds on behalf of the child or young person once they attain 18 years of age, for example, if there are limitations with the child's development capacity or a disability and the Public Trustee is appointed by a court or tribunal as administrator. The advice is that, prior to the young person turning 18, matters such as education are paid for by the department. There would only be exceptional circumstances in which those funds could be expended. Prior to exiting care, there would be a transitional care plan, which would have a focus on things such as financial literacy.

The Hon. C. BONAROS: In relation to that last point, these are the transitional arrangements when a child turns 16; is that correct? From 16 through to 18, is it correct that there will be a plan in place to ensure that the child has some financial planning measures put in place pending their 18^th birthday?

The Hon. J.M.A. LENSINK: Yes, that is correct.

Clause passed.

Clause 15.

The Hon. T.A. FRANKS: Your other side has just risen, and this bill has to be implemented by 22 October. That means it does not matter what we do right now—just pointing that out.

The Hon. J.M.A. LENSINK: It is out of my control.

The CHAIR: Minister, given the House of Assembly has risen, do you wish to proceed?

The Hon. J.M.A. LENSINK: Yes. While we are here, I think we should proceed.

Clause passed.

Schedule and title passed.

Bill reported with amendment.

Third Reading

The Hon. J.M.A. LENSINK (Minister for Human Services) (18:10): I move:

That this bill be now read a third time.

Bill read a third time and passed.