Children and Young People (Oversight and Advocacy Bodies) (Commissioner for Aboriginal Children and Young People) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 26 August 2021.)

The Hon. C. BONAROS (16:35): I rise on behalf of SA-Best to speak in support of the Children and Young People (Oversight and Advocacy Bodies) (Commissioner for Aboriginal Children and Young People) Amendment Bill 2020. I think we are all very pleased, finally, to be here now some three years after the appointment of the Commissioner for Aboriginal Children and Young People, that the office will be given the functions and powers to undertake this extremely important role.

I would like to thank the Commissioner for Aboriginal Children and Young People, Ms April Lawrie, the Commissioner for Children and Young People, Ms Helen Connolly, and the Guardian for Children and Young People, Ms Penny Wright, for sharing their views, their expertise, their knowledge, their understanding and experiences with me in relation to this bill.

Those discussions confirmed my strongly held views that we need the Commissioner for Aboriginal Children and Young People and it also confirmed my views that the commissioner should have the same powers and functions as her colleague the Commissioner for Children and Young People. I think it is critically important the commissioner is empowered to provide high level and independent oversight and advocacy for Aboriginal children and young people in South Australia.

At long last, the Commissioner for Aboriginal Children and Young People will be able to conduct her own motion, independent inquiries and formal investigations into issues that are brought to her attention. She will be able to advise and make recommendations to government ministers and to their departments. I am sure that Commissioner Lawrie is very eager to do just this, particularly given the long wait that she has had in terms of this bill actually passing this place. I am grateful to the commissioner for the work that has been done to date without the powers that we all, I think, agree she has so desperately needed.

I see both commissioner roles and that of the guardian as critical to ensuring the safety, development and wellbeing of Aboriginal children in this state. My discussions with the commissioners, the guardian and members of the Aboriginal community across the state have also highlighted to me the need for the amendments that I have filed to make the lines of communication and collaboration between the commissioners and the guardian very clear and unambiguous. Those amendments also provide for a regular review of the role, which is always, in my view, a good thing.

As members in this place know, and as many other members in this place are, I am very passionate about the advocacy of the rights of children—and especially Aboriginal children—and I have spoken many times in this place about how appalled we should all be at the statistics reported across a range of key indicators of Aboriginal children and young people's health, at their education, and at their social and economic wellbeing in South Australia.

I think we should all be particularly alarmed about the obscenely large number of Aboriginal children in out-of-home care. It is completely unacceptable that some 36.7 per cent of all children in care are Aboriginal. That is one in 11 Aboriginal children. And of those, only 31 per cent are in Aboriginal families and kinship groups.

These numbers are shocking, but what is even worse is that the number of Aboriginal children in out-of-home care is growing exponentially every year. I, along with others, have spoken in this place previously about the systemic failures of the child protection system in this state and, I think it is fair to say, will continue to do so until there is real, measurable and sustainable improvement in this area.

The only certainty is that if we continue to do nothing we are at serious risk of a second stolen generation and the associated generational trauma and loss that this causes. They are not my words, Mr President, they are the words of countless families that I have spoken to, particularly over the last six months but previous to that also. They are the words of families who have sat down and shared traumatic stories with me that have rocked me to my core. I think we all owe it to those families to make sure that we do better.

I am equally concerned about the number of Aboriginal children and young people in the juvenile justice system—they are 22.7 times more likely to be in detention than non-Aboriginal children—particularly since the data shows that this is also getting worse and not better. I am particularly concerned that the Guardian for Children and Young People, Ms Penny Wright, has chosen to resign from the role that she has in terms of the oversight of our Youth Training Centre, not because she does not have the genuine will to see that through but because this government has failed to appropriately resource that role to enable her to undertake the work she needs to do.

That is a failure of this government and of this parliament. We knew when we implemented that role the importance it had. We know that we continue to implement OPCAT legislation in this place, and the last thing we want is the realisation that we are doing that in name and name only and are not backing it up with the resources and funds that are required to actually undertake that role and create the difference that is intended. I think that is something that will be the subject of much wider discussion in this place very soon.

We know the interaction with juvenile justice often leads to longer term incarceration and has a huge impact on the trajectory of all children but especially Aboriginal children and young people whose lives are caught up in that system. We know that we are not doing enough to divert young people or to implement strategies that we know are capable of changing that downward trajectory that that interaction with the juvenile justice system leads to.

We also know that outcomes across a broader range of health and education indicators are worse than ever. They are not improving, as Commissioner Lawrie, Dr Roger Thomas and the guardian, Ms Penny Wright, have all reported. We really need to be paying much more attention to those reports. There is no point in preparing report after report and tabling them in this place if they are not going to result in any real action.

So it is my firm view that we need to be doing everything we can to ensure that Aboriginal children and young people achieve their full potential while maintaining their connection to culture, community and family. I do not accept that this bill has been delayed for three years due to COVID or the Dennis review, but at least, finally, now the bill is before us, and I hope that it is passed so that the important work of the Commissioner for Aboriginal Children and Young People can proceed with the legislative framework that is required to give it full effect.

The Hon. S.G. WADE (Minister for Health and Wellbeing) (16:44): I thank all members who have contributed to the second reading debate on this bill and particularly for their support in establishing the important role of Commissioner for Aboriginal Children and Young People in legislation. The bill will establish a strong advocate for the rights and interests of Aboriginal children and young people in South Australia.

I thank members who have proposed amendments to the bill. I will briefly set out the government's position in relation to them. We acknowledge the intent behind the amendments, but it is the government's view that these matters are best dealt with through policy and a business as usual approach, not through legislation. The government is not inclined to support the amendments at this time, and we encourage the council to pass the bill this week.

The Hon. John Darley has filed two amendments to the bill that in each case change the word 'should' to 'will' to clarify that the commissioner will consult and engage with Aboriginal children and their families and communities in the performance of the commissioner's functions. The nature of the role of the commissioner is such that the commissioner consults and engages with Aboriginal children, young people and their families, and the bill provides for this to continue. The amendments are unnecessary and the government will not be supporting them.

The Hon. Frank Pangallo has filed a number of amendments. Amendments Nos 1, 2 and 4 seek to require communication and collaboration between the Commissioner for Aboriginal Children and Young People, the Commissioner for Children and Young People and the Guardian for Children and Young People on matters of common interest, inquiries and other significant work. Although we understand the general intent of these amendments, the government considers that communication between these bodies is a matter best dealt with administratively.

I further note that the scope of the required communication in the amendments is too broad and in some cases may not be appropriate, particularly as it relates to the guardian. In addition, the government believes there should be some discretion with respect to collaboration between the independent roles of the Commissioner for Aboriginal Children and Young People, the Commissioner for Children and Young People and the guardian. Therefore, the government will not be supporting these amendments.

Amendment No. 3 requires a review of the functions and operations of the commissioner to be conducted within six months of the third anniversary of the commencement of the section, with subsequent reviews to be conducted every three years. The government is of the view that this requirement is unnecessary and overly onerous and therefore it will not be supporting this amendment. Again, I thank honourable members for their contributions and commend the bill to the council.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 to 17 passed.

Clause 18.

The Hon. C. BONAROS: On behalf of the Hon. Mr Pangallo, I move:

Amendment No 1 [Pangallo–1]—

Page 7, lines 7 to 10 [clause 18, inserted section 14A]—Delete inserted section 14A and substitute:

14A—Communication and collaboration with CACYP and Guardian

(1) The CCYP must communicate with the CACYP and the Guardian about matters of common interest, inquiries under section 15 and other significant work the CCYP is undertaking.

(2) The CCYP must, in the performance of their functions, collaborate on matters of common interest with the CACYP and the Guardian to such extent as is reasonably practicable.

I have just outlined the reason for this amendment. I think it is fair to say that there is a general theme in the bill that would suggest that there is this open line of communication between the two commissioners and the guardian about matters that pertain to common interests about matters that they may be considering.

The intent of these first two amendments is to ensure that it is not just something that they might do but rather something that they do, because we do know absolutely that there is a lot of overlap in terms of the roles of the commissioners. Certainly, there may come a time where they are operating in silos, and we do not want that to occur, we want an open line of communication where there is a common interest and common goals and lines of inquiry.

All this amendment seeks to do (and I have discussed it with the commissioners in question) is ensure that there is an open line of communication between them so that everybody knows what the other is doing, when appropriate. That is the extent of amendments Nos 1 and 2, in essence.

The Hon. S.G. WADE: I reiterate what I indicated in the summing-up at the second reading stage: first, that amendments Nos 1, 2 and 4, filed in the name of Mr Pangallo but moved by the Hon. Connie Bonaros, are related. The government does not support amendment No. 1 or the related amendments at clauses 25 and 25A, they being amendments Nos 2 and 4.

The amendments require that the Commissioner for Children and Young People, the Commissioner for Aboriginal Children and Young People and the Guardian for Children and Young People must communicate with each other about matters of common interest, Commissioner for Children and Young People inquiries under section 15, Commissioner for Aboriginal Children and Young People inquiries under new section 20M, guardian investigations and inquiries, and other significant work the Commissioner for Children and Young People, the Commissioner for Aboriginal Children and Young People and the guardian are undertaking.

The amendments would also provide that the Commissioner for Children and Young People, the Commissioner for Aboriginal Children and Young People and the guardian must, rather than should, in the performance of their functions collaborate with each other on matters of common interest to such extent as is reasonably practicable. The bill as introduced provides for collaboration between the commissioners; however, the amendments add a new requirement for communication and extend the provisions to include the guardian.

The government feels that communication between the three statutory officers is a matter best dealt with administratively. It is concerned that the scope of the requirement in the amendments that the three officers must communicate and collaborate with each other with respect to the particular matters may be so broad as to be unworkable or inappropriate, particularly as the provisions would now apply to the guardian.

The functions of the Commissioner for Children and Young People and the Commissioner for Aboriginal Children and Young People are focused on systemic issues and all children or groups of children, rather than individual advocacy, whereas the guardian has functions that may encompass advocacy for or oversight of individual children under the guardianship or in the custody of the Chief Executive of the Department for Child Protection.

In addition, requiring three independent officers to collaborate in all cases may give rise to unintended consequences, particularly where officers may have diverging views on a particular matter, and therefore some discretion should be retained to deal with circumstances in which collaboration may not be appropriate.

The Hon. E.S. BOURKE: I rise to echo the words of the minister that the opposition will not support this amendment standing in the Hon. Frank Pangallo's name but moved by the Hon. Connie Bonaros, or the following amendments in his name. Whilst we appreciate the intent and principles behind these amendments being moved, we will not support them today as we are looking forward to this bill passing the parliament.

Amendment negatived; clause passed.

Clauses 19 to 24 passed.

Clause 25.

The Hon. J.A. DARLEY: I move:

Amendment No 1 [Darley–1]—

Page 13, line 8 [clause 25, inserted section 20I(3)]—Delete ‘should’ and substitute ‘will’

Amendment No 2 [Darley–1]—

Page 13, line 11 [clause 25, inserted section 20I(3)]—Delete ‘should’ and substitute ‘will’

The minister advised in the second reading explanation that the commissioner is required to consult with and engage Aboriginal children and young people and their families and communities. The amendment to section 20I(3), changing the word 'should' to 'will', reflects the minister's statement and intent in his second reading explanation. It is a key principle of communication for the commissioner and is clearly the intent of the legislation.

The Hon. S.G. WADE: As indicated in my earlier comments at the close of the second reading, the government does not support the two amendments the Hon. John Darley has filed in relation to clause 25, inserted section 20I(3). In each case the amendments change the word 'should' to 'will' to clarify that the Commissioner for Aboriginal Children and Young People will consult with and engage Aboriginal children and young people and their families and communities in the performance of the commissioner's functions under the act and, in particular, will seek to engage those groups of Aboriginal children and young people and their families and communities whose ability to make their views known is limited for any reason.

The very nature of the role of the commissioner is such that the commissioner consults and engages with Aboriginal children and young people and their families, and the bill provides for this to continue. Respectfully, it is the government's view that the proposed amendment is unnecessary.

The Hon. E.S. BOURKE: On behalf of the opposition, I rise to support both amendments in the Hon. John Darley's name. As the general functions and powers of this part of the bill highlight, it is to promote and advocate for the rights and interests of all Aboriginal children and young people, or a particular group of Aboriginal children and young people in South Australia. We feel that the simple change of one word, from 'should' to 'will', will further strengthen these powers and these functions provided to the commissioner.

The Hon. T.A. FRANKS: For the record, the Greens are not supporting this amendment.

The Hon. C. BONAROS: I rise to indicate, on behalf of SA-Best, that we will be supporting the amendments for the reasons that other honourable members have just outlined. In essence, they are not different to what we were trying to achieve, albeit with different—we were talking about children and families as opposed to the commissioners themselves. It might very well be the case that they should consult, but I think this amendment goes some way towards strengthening those provisions to ensure that this actually does occur, and therefore we support it.

Amendments carried.

The CHAIR: Still on clause 25, I go to amendment No. 2 [Pangallo-1] and I call the Hon. Ms Bonaros.

The Hon. C. BONAROS: It is a standalone amendment but I think we know the outcome based on the previous vote.

The CHAIR: Do you wish to proceed or not?

The Hon. C. BONAROS: I might actually, on the basis that there is one point that I think may have been lost on the minister and I would like to make it. I move:

Amendment No 2 [Pangallo–1]—

Page 13, lines 25 to 28 [clause 25, inserted section 20J]—Delete inserted section 20J and substitute:

20J—Communication and collaboration with CCYP and Guardian

(1) The CACYP must communicate with the CCYP and the Guardian about matters of common interest, inquiries under section 20M and other significant work the CACYP is undertaking.

(2) The CACYP must, in the performance of their functions, collaborate on matters of common interest with the CCYP and the Guardian to such extent as is reasonably practicable.

I do not expect the outcome to be any different but I think it is worth noting that these amendments talk about collaborating on matters of common interest. We are not talking about all matters, we are talking about matters of common interest to such extent as is reasonably practicable. So I think the problems that the minister, on behalf of the government, has outlined are a bit of a furphy. I think it is clear here that where there is a common interest and it is reasonable for the commissioners to do so, then that level of collaboration and communication is being sought.

The Hon. S.G. WADE: With all due respect, I think a matter could be of common interest but they could still—

The Hon. C. Bonaros: As is reasonably practicable.

The Hon. S.G. WADE: My view is the matter could be of common interest, but they could still have diametrically opposed views, so to require them to collaborate on matters where they do not have a shared perspective would undermine the independence of each of the statutory officers. I also stress that proposed section 20J(1) does not just limit itself to matters of common interest. It talks about inquiries under section 20M and significant work the commissioner is undertaking.

Again, as the honourable member, I acknowledge, has indicated, it is of the essence of the bill that there be collaboration, but to make it a statutory requirement, we believe, may well have unintended consequences, including undermining the independence of statutory officers.

Amendment negatived.

The Hon. C. BONAROS: I move:

Amendment No 3 [Pangallo–1]—

Page 17, after line 25—After inserted section 20R insert:

Division 4—Review

20S—Review

(1) The Minister must cause a review of the functions and operations of the CACYP to be conducted and a report on the review to be prepared and submitted to the Minister.

(2) The first review must be conducted within the period of 6 months after the third anniversary of the commencement of this section and subsequent reviews must be conducted every 3 years.

(3) The Minister must, within 6 sitting days after receiving a report of a review under this section, cause copies of the report to be laid before both Houses of Parliament.

This is the provision that relates to a review. I understand that the minister has already placed on the record the reasons why this will not be supported. I have to say I think it is the first time I have ever seen a review provision not supported in this place. I do not know how this is any different from any other review provision, which has become quite standard in new pieces of legislation. We see it incorporated into bills all the time.

The review we are seeking is the standard review provision that we normally see. The first review must be conducted within the period of six months after the third anniversary of the commencement of the section, and subsequent reviews must be conducted every three years. Three to five years is the general rule of thumb in terms of when we as a parliament think a review should take place, because three years is enough time to get over the initial stages of implementing legislation and to have something to actually review, by which point we should be able to identify whether there are any issues that need to be addressed in the legislation.

The next provision is also one of those standard provisions that requires the minister, within six sitting days after the receipt of the report, to ensure that a copy of that report is laid before both houses of parliament. I do not need to explain that. I think everyone accepts that that is an accountability and transparency measure and enables us to analyse the outcomes of those reviews.

I will just say for the record that I think we all know the benefit that these reviews provide, particularly when we are dealing with new legislation. They give us some insight into any issues that the commissioner, or whoever may be in charge of a piece of legislation, has identified. Whether there are any holes in the legislation, whether there are any loopholes that need to be fixed, whether there are any gaps—whatever the case may be—those things usually come to light as a result of a review process. So I am again urging honourable members to support this. It is not any different from review provisions that we see in other pieces of legislation. With those words, I commend the amendment to the chamber.

The Hon. S.G. WADE: As the honourable member indicated, I have indicated earlier that the government does not support this amendment. The amendment requires a review of the functions and operations of the Commissioner for Aboriginal Children and Young People to be conducted within six months of the third anniversary of the commencement of the section, with subsequent reviews to be conducted every three years.

With all due respect to the honourable member, I do see this as novel. It is not unusual for this chamber to put in statutory reviews, but what is unusual is for it to have a recurring review every three years, whether there is an identified need in the next term or not. It is not unusual to have a statutory review at the three-year mark or the five-year mark of the first edition of the act, for want of a better word, to sort out any teething issues and correct them if necessary, but a rolling review, I would put to the council, is novel.

I would also make the point that this review, according to the amendment, relates to the review of the functions and operations of the Commissioner for Aboriginal Children and Young People. This is not a review and a rolling review of all of the statutory entities under this legislation. It does not apply to the Commissioner for Children and Young People, the guardian, the child death and serious injury review committee or the child development council. I hope I have the names close enough for you to recognise them.

I make the point: why would we review the role of this commissioner and not of the whole regime? The government considers the requirement of the review and the way that it is structured is unnecessary and overly onerous.

Amendment negatived; clause as amended passed.

Remaining clauses (26 to 41), schedule and title passed.

Bill reported with amendment.

Third Reading

The Hon. S.G. WADE (Minister for Health and Wellbeing) (17:08): I move:

That the bill be now read a third time.

Bill read a third time and passed.