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House of Assembly - Fifty-Third Parliament, First Session (53-1)
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Child Development and Wellbeing Bill

Committee Stage

In committee.

(Continued from 16 September 2014.)

Clause 6.

Ms SANDERSON: I move:

Amendment No 2 [Sanderson–1]—

Page 5, lines 2 to 4—Delete clause 6 and substitute:

6—Declaration

The Parliament of South Australia—

(a) recognises the competencies and rights of children and young people in our community; and

(b) commits to protecting, respecting and promoting the rights of children and young people.

This clause strengthens the declaration of the legislation by not only recognising the rights of children and young people but commits to protecting and promoting their rights. It explicitly states that parliament 'commits to protecting, respecting and promoting the rights of children and young people' and I am very pleased that the minister has agreed to amend that between the houses, I believe, from our discussions.

The Hon. J.M. RANKINE: The government is rejecting this clause, particularly subclause (a) as it is identical to the government's bill. However, we will look at introducing a government amendment in the upper house, similar to wording in subclause (b), to help strengthen the wording of the declaration in the government bill.

Amendment negatived; clause passed.

Clause 7.

Ms SANDERSON: My next amendment is to clause 13.

The CHAIR: You have an amendment No. 3.

Ms SANDERSON: I am dropping it.

The CHAIR: Not proceeding.

Clause passed.

Clauses 8 to 12 passed.

Clause 13.

Ms SANDERSON: I move:

Amendment No 4 [Sanderson–1]—

Page 9 line 4 to page 12 line 20—Delete Part 4 and substitute:

Part 4—Commissioner for Children and Young People

Division 1—Commissioner for Children and Young People

13—Establishment of Commissioner for Children and Young People

(1) There will be a Commissioner for Children and Young People.

(2) The Commissioner is not a Public Service employee.

(3) If the Commissioner was, immediately before his or her appointment, employed in the Public Service, the Commissioner retains existing and accruing rights in respect of leave.

(4) The Commissioner is a senior official for the purposes of the Public Sector (Honesty and Accountability) Act 1995.

14—Independence of Commissioner

The Commissioner is independent of direction or control by the Crown or any Minister or officer of the Crown.

15—Appointment of Commissioner

(1) The Commissioner will be appointed by the Governor on the recommendation of the selection panel for a term not exceeding 5 years and on conditions determined by the Governor.

(2) The Commissioner is, at the end of a term of appointment, eligible for reappointment but cannot hold office for terms (including any term as acting Commissioner) that exceed 7 years in total.

(3) The Minister must, in respect of each appointment of the Commissioner (other than a reappointment), establish a panel (the selection panel) consisting of such number of persons as the Minister thinks fit and who, in the Minister's opinion, collectively have sufficient qualifications or experience to enable the panel to choose an suitable person to be appointed as the Commissioner.

(4) The selection panel established in respect of a particular appointment is responsible for—

(a) advertising the position of Commissioner; and

(b) assessing the applications received for the position; and

(c) recommending to the Governor 1 or more of the applicants for appointment to the position.

(5) Subject to this Act, the selection panel may determine its own procedures.

(6) The regulations may make further provisions in relation to the selection panel.

16—Removal etc of Commissioner

(1) The Governor may, on the address of both Houses of Parliament, remove the Commissioner from office.

(2) The Governor may suspend the Commissioner from office for—

(a) contravention of a condition of appointment; or

(b) misconduct; or

(c) failure or incapacity to carry out official duties satisfactorily.

(3) If the Governor suspends the Commissioner from office, a full statement of the reason for the suspension must be laid before both Houses of Parliament within 7 days after the suspension if Parliament is then in session or, if not, within 7 days after the commencement of the next session of Parliament.

(4) If, at the end of 20 sitting days after the statement is laid before Parliament, neither House of Parliament has presented an address to the Governor requiring the Commissioner to be restored to office, the Commissioner is removed from office.

(5) If within 20 sitting days after the statement is laid before Parliament either House of Parliament presents an address to the Governor requiring the Commissioner to be restored to office, the Commissioner is restored to office.

(6) The office of Commissioner becomes vacant if the holder—

(a) dies; or

(b) completes a term of office and is not reappointed; or

(c) resigns by written notice to the Governor; or

(d) becomes an insolvent under administration within the meaning of the Corporations Act 2001 of the Commonwealth; or

(e) is convicted of—

(i) an indictable offence against the law of this State; or

(ii) an offence against the law of this State that is punishable by imprisonment for a term of at least 12 months; or

(iii) an offence against the law of another jurisdiction that, if committed in this State, would be an offence of a kind referred to in a preceding paragraph; or

(f) is sentenced to imprisonment for an offence (whether against a law of this State or another jurisdiction); or

(g) is removed from office by the Governor under this section.

(7) Except as is provided by this section, the Commissioner may not be removed or suspended from office, nor will the office of the Commissioner become vacant.

17—Appointment of acting Commissioner

(1) The Minister may appoint a person (who may be a Public Service employee) to act as the Commissioner during any period for which—

(a) no person is for the time being appointed as the Commissioner; or

(b) the Commissioner is absent from, or unable to discharge, official duties.

(2) The terms and conditions of appointment of the person appointed to act as the Commissioner will be determined by the Minister.

(3) A person acting as the Commissioner is a senior official for the purposes of the Public Sector (Honesty and Accountability) Act 1995.

18—Assistant Commissioners

(1) The Commissioner may appoint as many Assistant Commissioners as the Commissioner thinks necessary.

(2) The terms and conditions of appointment of an Assistant Commissioner will be determined by the Minister after consultation with the Commissioner.

(3) An Assistant Commissioner is a senior official for the purposes of the Public Sector (Honesty and Accountability) Act 1995.

19—Functions of Commissioner

(1) It is a function of the Commissioner to inquire into, report on and keep under review matters related to the rights, development and wellbeing of children and young people at a systemic level.

(2) It is a function of the Commissioner to investigate matters under Part 4B.

(3) The Commissioner also has the following functions:

(a) to promote and advocate for the rights and interests of children and young people in South Australia;

(b) to promote the participation of children and young people in the making of decisions that affect their lives;

(c) to advise, and make recommendations to, Ministers, State authorities and other bodies on matters related to the rights, development and wellbeing of children and young people;

(d) to assist in ensuring that the State, as part of the Commonwealth, satisfies its international obligations in respect of children and young people;

(e) to develop and publish a community engagement plan in accordance with the regulations;

(f) such other functions as may be conferred on the Commissioner by or under this or any other Act or by the Minister.

(4) Without limiting any other provision of this Act, the Commissioner must, as far as is reasonably practicable, engage with (in this order of priority)—

(a) children and young people; and

(b) the parents, families and carers of children and young people; and

(c) any relevant peak bodies and non-government organisations,

in the performance of his or her functions under this Act (other than in relation to an investigation under Part 4B).

20—Delegation

(1) Subject to this section, the Commissioner may delegate a function or power under this Act (other than a prescribed function or power) to an Assistant Commissioner, or any other person or body of persons that is, in the Commissioner's opinion, competent to perform or exercise the relevant function or power.

(2) A delegation under this section—

(a) must be in writing; and

(b) may be conditional or unconditional; and

(c) is revocable at will; and

(d) does not prevent the delegator from acting in any matter.

(3) A function or power delegated under this section may, if the instrument of delegation so provides, be further delegated.

21—Annual report

(1) The Commissioner must, on or before 30 September in each year, prepare and deliver to the Minister a report on the operations of the Commissioner during the previous financial year.

(2) The report must contain the following information:

(a) the number and general nature of complaints received by the Commissioner;

(b) the number and general nature of matters investigated by the Commissioner;

(c) the number and general nature of matters referred to South Australia Police, a State authority or an inquiry agency under this Act;

(d) the extent to which investigations have resulted in prosecutions or disciplinary action;

(e) the number and general nature of occasions on which public statements have been made by the Commissioner;

(f) the number and general nature of recommendations made by the Commissioner;

(g) any information required by the regulations in respect of the community engagement plan referred to in section 19(3)(e);

(h) any other information required by the regulations.

(3) The Minister must, within 12 sitting days after receiving a report under this section, cause a copy of the report to be laid before both Houses of Parliament.

Division 2—Other staff

21A—Employees

(1) The Commissioner may engage employees on terms and conditions determined by the Commissioner.

(2) The employees are not Public Service employees but are to be taken to be public sector employees, employed by the Commissioner, for the purposes of the Public Sector (Honesty and Accountability) Act 1995.

21B—Use of staff etc of Public Service

The Commissioner may, by agreement with the Minister responsible for an administrative unit of the Public Service, make use of the services of the staff, equipment or facilities of that administrative unit.

Part 4A—Commissioner may inquire into matters at systemic level

21C—Commissioner may inquire into matters affecting children and young people at systemic level

(1) The Commissioner may conduct an inquiry under this Part into—

(a) the policies, practices and procedures of a State authority as they relate to the rights, development and wellbeing of children and young people generally, or a particular group of children and young people; and

(b) any other matter declared by the regulations to fall within the ambit of this subsection.

(2) The Commissioner may only conduct an inquiry under this Part if he or she is of the opinion that—

(a) the matter raises an issue of particular significance to children and young people; and

(b) it is in the public interest to conduct the inquiry.

(3) The Commissioner must not conduct an inquiry into a matter if to do so would be likely to impede an investigation or proposed investigation relating to the matter that is being, or is to be, conducted by South Australia Police or an inquiry agency.

(4) Subject to this Act, the Commissioner may conduct an inquiry under this Part in such manner as he or she thinks fit.

(5) The Commissioner must inform the relevant State authority as to the nature and timing of an inquiry under this Part.

(6) A State authority must assist the Commissioner in the conduct of an inquiry as requested by the Commissioner.

21D—Recommendations

(1) The Commissioner may, on completing an inquiry under this Part, or in response to issues observed by the Commissioner in the course of an inquiry under this Part, recommend to a State authority that the State authority—

(a) change practices, policies or procedures in a specified way or review practices, policies or procedures to achieve specified outcomes; or

(b) conduct, or participate in, specified educational programs or educational programs designed to achieve specified outcomes; or

(c) take such other specified action as may be specified by the Commissioner.

(2) If the Commissioner is not satisfied that a State authority has complied with the recommendations of the Commissioner, the Commissioner must inform the State authority of the grounds of the Commissioner's dissatisfaction and give the State authority an opportunity to comment within a specified time.

(3) If, after considering any comments received from the State authority within the specified time, the Commissioner is still not satisfied, the Commissioner may submit a report to the Minister setting out the grounds of dissatisfaction, together with any comments from the State authority.

(4) The Minister must, on receiving a report under subsection (3), prepare a report to Parliament setting out—

(a) the Minister's response to the Commissioner's report; and

(b) if any action has been taken, or is proposed to be taken, (whether by the Minister, a State authority or any other person or body) in relation to a recommendation to which the Commissioner's report relates—details of that action or proposed action; and

(c) if no action is to be taken (whether by the Minister, a State authority or any other person or body) in relation to a recommendation to which the Commissioner's report relates—the reasons for not taking action; and

(d) any other information required by the regulations.

(5) The Minister must, within 12 sitting days after receiving a report under this section, cause a copy of both the report and the Minister's report under subsection (4) to be laid before both Houses of Parliament.

21E—Report of inquiry

(1) The Commissioner must, on completing an inquiry under this Part, prepare and deliver to the Minister a report on the inquiry (including, if appropriate, details of any recommendations made under section 21D in respect of the inquiry).

(2) The Minister must, on receiving a report under subsection (1), prepare a report to Parliament setting out—

(a) the Minister's response to the Commissioner's report; and

(b) if any action has been taken, or is proposed to be taken, (whether by the Minister, a State authority or any other person or body) in relation to the Commissioner's report—details of that action or proposed action; and

(c) if no action is to be taken (whether by the Minister, a State authority or any other person or body) in relation to the Commissioner's report—the reasons for not taking action; and

(d) any other information required by the regulations.

(3) The Minister must, within 12 sitting days after receiving a report under this section, cause a copy of both the report and the Minister's report under subsection (2) to be laid before both Houses of Parliament.

Part 4B—Investigation of complaints

Division 1—Preliminary

21F—Matters that may be investigated under Part

(1) Subject to this Act, the Commissioner may (on receipt of a complaint under this Part or on his or her own initiative) investigate matters of the following kinds under this Part:

(a) a matter affecting, or related to, the rights, development and wellbeing of a child or young person or more than 1 child or young person;

(b) a matter involving an interaction between a State authority and a child or young person, or class of children and young people, or the family of a child or young person;

(c) a matter referred to the Commissioner by the Minister, a House of Parliament, a committee of a House of Parliament or a joint committee of both Houses of Parliament,

however, the Commissioner must not investigate a matter unless he or she is satisfied that—

(d) any procedures for resolving matters of the relevant kind under a specific Act have been used appropriately but without resolution of the matter; and

(e) the matter raises an issue of particular significance to children and young people; and

(f) it is in the public interest to conduct the investigation.

(2) The Commissioner must not investigate—

(a) an allegation that a specified person has, or may have, committed a criminal offence; or

(b) a matter that could be, but has not yet been, the subject of an inquest under the Coroners Act 2003 (unless the State Coroner has determined not to hold an inquest into the matter); or

(c) any other matter, or class of matters, declared by the regulations to fall within the ambit of this subsection.

(3) Without limiting subsection (2), the Commissioner must not investigate a matter if to do so would be likely to impede an investigation or proposed investigation relating to the matter that is being, or is to be, conducted by South Australia Police or an inquiry agency.

21G—Investigations where proceedings before judicial body or inquiry agency

The Commissioner or an investigator may perform functions or exercise powers in respect of a particular investigation despite proceedings that may be before a court or inquiry agency but, in that case, the Commissioner or investigator must endeavour to avoid, as far as practicable, prejudice to any person affected by the proceedings.

21H—Commissioner may require Commissioner of Police etc to provide report

(1) The Commissioner of Police must, so far as it is practicable to do so, comply with a written request from the Commissioner to provide a report on the investigation of a matter that is related to a complaint under this Part.

(2) An inquiry agency must, so far as it is practicable to do so, comply with a written request from the Commissioner to provide a report on the investigation of a matter by the inquiry agency that is related to a complaint under this Part.

Division 2—Complaints

21I—Complaints

(1) A complaint for the purposes of this Part—

(a) must relate to a matter that can be investigated by the Commissioner under this Part; and

(b) must be made in a manner and form determined by the Commissioner; and

(c) must be accompanied by such information as may be required by the Commissioner.

(2) The Commissioner may refuse to accept or investigate a complaint if the Commissioner is of the opinion that the complaint is frivolous, vexatious, misconceived or lacking in substance or involves a trivial matter.

(3) The Commissioner must take reasonable steps to ensure that a complainant receives an acknowledgement of the complaint and is informed as to the action, if any, taken in respect of the complaint.

21J—Other action that may be taken on receipt of complaint

(1) On receiving a complaint under this Part, the Commissioner may do 1 or more of the following:

(a) if the Commissioner is of the opinion that the matter could be the subject of a prosecution—refer the matter to South Australia Police for further investigation;

(b) if the Commissioner is of the opinion that the matter could result in disciplinary action against a public officer for whom a State authority is responsible—refer the matter to the State authority for further investigation and potential disciplinary action (and, if the Commissioner considers it appropriate, the Commissioner may give directions or guidance to the State authority in respect of the matter);

(c) refer the matter to an inquiry agency for further investigation.

(2) The Commissioner may refer a matter whether or not he or she has commenced or completed an investigation under this Part.

(3) The Commissioner must, before referring a matter to a State authority or inquiry agency, take reasonable steps to obtain the views of the agency or authority as to the referral.

(4) The Commissioner may disclose to the South Australia Police, a State authority or an inquiry agency (as the case requires) any information that the Commissioner has in respect of a matter referred under this section.

(5) Subject to this Act, the referral of a matter under this section does not, of itself, prevent the Commissioner from performing his or her functions in relation to a child to whom the matter relates.

(6) Nothing in this section prevents a matter from being referred to South Australia Police, an inquiry agency or any other person or body at any time (whether by the Commissioner or any other person).

(7) In this section—public officer means—

(a) a person appointed to an office by the Governor; or

(b) a person who constitutes a statutory authority or who is a statutory office holder; or

(c) a person who is a member of the governing body of a statutory authority; or

(d) an officer or employee of a statutory authority or statutory office holder or a Public Service employee assigned to assist the statutory authority or statutory office holder; or

(e) the chief executive of an administrative unit of the Public Service; or

(f) a Public Service employee (other than a chief executive); or

(g) a police officer; or

(h) an officer or employee appointed by the employing authority under the Education Act 1972; or

(i) an officer or employee of a local government body; or

(j) any other public sector employee; or

(k) a person performing contract work for a State authority or the Crown; or

(l) any other person declared by regulation to be a public officer for the purposes of this Act;

Division 3—Investigations

21K—Principles and procedures

(1) Subject to this Act, in conducting an investigation under this Part—

(a) the Commissioner is not bound by the rules of evidence and may inform himself or herself as he or she thinks fit; and

(b) the Commissioner must act according to equity, good conscience and the substantial merits of the case and without regard to legal technicalities and forms.

(2) The regulations may make further provision in respect of an investigation under this Part (including, to avoid doubt, by limiting the powers of the Commissioner or an investigator).

(3) Subject to this Act, the Commissioner may conduct an investigation under this Part in such manner as he or she thinks fit.

21L—Powers of Commissioner for purposes of investigations

(1) The Commissioner may, for the purposes of an investigation under this Part, by notice in writing, require a specified person to appear before the Commissioner to give evidence relating to the investigation.

(2) The Commissioner may, for the purposes of an investigation under this Part, by notice in writing, require a specified person—

(a) to produce a specified document or other thing that is relevant to an investigation for examination; or

(b) to give the Commissioner such information in his or her possession as the Commissioner may reasonably require.

(3) The Commissioner may enter any land or building and carry out any inspection that the Commissioner considers relevant to an investigation under this Part.

(4) The Commissioner may, for the purposes of an investigation under this Part, take evidence on oath or affirmation and for that purpose require a person to make an oath or affirmation (which may be administered by the Commissioner or a person authorised by the Commissioner for the purpose) to answer truthfully any questions put by the Commissioner.

(5) The Commissioner may retain any document or thing produced for such reasonable period as he or she thinks fit, and may make copies of any document.

(6) The Commissioner may require a person to produce a document or other thing for the purpose of determining whether or not it is a document or thing that the Commissioner has power to compel the person to produce.

(7) A notice under this section must comply with any requirements set out in the regulations in respect of a notice of the relevant kind.

(8) Without limiting this section, the Commissioner has such other powers as may be necessary, expedient or incidental to performing the functions of the Commissioner under this Part.

21M—Limiting action by certain State authorities

(1) The Commissioner may, by written notice, require a State authority (other than a prescribed State authority) to refrain from taking specified action for a specified period in respect of a particular matter being investigated by the Commissioner under this Part or to conduct a joint investigation with the Commissioner in respect of a particular matter (and the State authority must comply with the requirement even if the State authority is otherwise required or authorised to take action under another Act).

(2) The Commissioner must consider any comments of the State authority with respect to the terms of the notice.

(3) In this section—prescribed State authority means—

(a) South Australia Police; and

(b) a State authority that is an inquiry agency; and

(c) any other State authority prescribed by the regulations for the purposes of this paragraph.

21N—Injunction to refrain from conduct pending investigation

(1) The Supreme Court may, on application made by the Commissioner, grant an injunction restraining a person from engaging in conduct that is the subject of, or affects the subject matter of, an investigation or proposed investigation by the Commissioner under this Part.

(2) The Supreme Court must not grant an injunction under this section unless it is satisfied—

(a) that the conduct sought to be restrained is likely to impede the investigation or proposed investigation; or

(b) that it is necessary in the public interest to do so.

21O—Recommendations—State authorities

(1) The Commissioner may, on completing an investigation under this Part, recommend to a State authority that the State authority—

(a) change practices, policies or procedures in a specified way or review practices, policies or procedures to achieve specified outcomes; or

(b) conduct, or participate in, specified educational programs or educational programs designed to achieve specified outcomes; or

(c) take such other specified action as may be specified by the Commissioner.

(2) A recommendation under subsection (1) may relate to the subject matter of the investigation or any other matter related to children and young people arising out of the investigation.

(3) If the Commissioner is not satisfied that a State authority has complied with the recommendations of the Commissioner, the Commissioner must inform the State authority of the grounds of the Commissioner's dissatisfaction and give the State authority an opportunity to comment within a specified time.

(4) If, after considering any comments received from the State authority within the specified time, the Commissioner is still not satisfied, the Commissioner may submit a report to the Minister setting out the grounds of dissatisfaction, together with any comments from the State authority.

(5) The Minister must, on receiving a report under subsection (4), prepare a report to Parliament setting out—

(a) the Minister's response to the Commissioner's report; and

(b) if any action has been taken, or is proposed to be taken, (whether by the Minister, a State authority or any other person or body) in relation to a recommendation to which the Commissioner's report relates—details of that action or proposed action; and

(c) if no action is to be taken (whether by the Minister, a State authority or any other person or body) in relation to a recommendation to which the Commissioner's report relates—the reasons for taking no action; and

(d) any other information required by the regulations.

(6) The Minister must, within 12 sitting days after receiving a report under this section, cause a copy of both the report and the Minister's report under subsection (5) to be laid before both Houses of Parliament.

21P—Recommendations—other persons or bodies

(1) The Commissioner may, on completing an investigation under this Part, recommend to a person or body that the person or body change practices, policies or procedures in a specified way or review practices, policies or procedures to achieve specified outcomes.

(2) A recommendation under subsection (1) may relate to the subject matter of the investigation or any other matter related to children and young people arising out of the investigation.

21Q—Report of investigation

(1) The Commissioner may, on completing an investigation under this Part, if he or she considers it appropriate, prepare and deliver to the Minister a report on the investigation (including, if appropriate, details of any recommendations made under section 21O or 21P in respect of the investigation).

(2) The Minister must, on receiving a report under subsection (1), prepare a report to Parliament setting out—

(a) the Minister's response to the Commissioner's report; and

(b) if any action has been taken, or is proposed to be taken, (whether by the Minister, a State authority or any other person or body) in relation to the Commissioner's report—details of that action or proposed action; and

(c) if no action is to be taken (whether by the Minister, a State authority or any other person or body) in relation to the Commissioner's report—the reasons for taking no action; and

(d) any other information required by the regulations.

(3) The Minister must, within 12 sitting days after receiving a report under this section, cause a copy of both the report and the Minister's report under subsection (2) to be laid before both Houses of Parliament.

Part 4C—Offences

21R—Offence to refuse etc to comply with requirement

A person who is required under this Act to give evidence before, or to produce a document or other thing to, the Commissioner or an investigator and—

(a) refuses or fails without reasonable excuse to do so; or

(b) refuses or fails to make an oath or affirmation when required to do so under this section; or

(c) refuses or fails without reasonable excuse to answer any question put to the person by the Commissioner or an investigator, or as may otherwise be required under this Act; or

(d) gives false or misleading evidence to the Commissioner or an investigator; or

(e) misbehaves before, or wilfully insults, the Commissioner or an investigator in the exercise of official duties, is guilty of an offence.

Maximum penalty: $25 000 or imprisonment for 1 year.

21S—Obstruction

A person who—

(a) alters, destroys, conceals or fabricates a document or other thing knowing that it is or is likely to be required by the Commissioner or an investigator for the purposes of this Act; or

(b) otherwise hinders or obstructs the Commissioner, an investigator or a person assisting the Commissioner or an investigator in the performance of a function or exercise of a power under this Act,

is guilty of an offence.

Maximum penalty: $25,000 or imprisonment for 1 year.

21T—False or misleading statements in complaint or report etc

A person must not—

(a) make a statement for the purposes of this Act knowing that it is false or misleading in a material particular (whether by reason of the inclusion or omission of a particular); or

(b) make a complaint under this Act knowing that there are no grounds for the making of the complaint.

Maximum penalty: $25,000 or imprisonment for 1 year.

Part 4D—Investigators

21U—Investigators

(1) The Commissioner may appoint suitable persons to be investigators for the purposes of this Act.

(2) An appointment may be made subject to conditions specified in the instrument of appointment.

(3) The Commissioner may, at any time, revoke an appointment of a person or vary or revoke a condition of appointment or impose a further condition of appointment.

(4) An investigator must be issued with an identity card—

(a) containing the person's name and a photograph of the person; and

(b) stating that the person is an investigator under this Act.

(5) If the powers of an investigator have been limited by conditions, the identity card issued to the investigator must indicate those limitations.

(6) An investigator must, at the request of a person in relation to whom the investigator intends to exercise powers under this Act, produce his or her identity card for the inspection of the person.

21V—Powers of investigators

(1) Subject to this Act, an investigator may, in connection with the administration, operation or enforcement of this Act and at any reasonable time, do 1 or more of the following:

(a) enter and remain in and search any premises or place owned or occupied by a State authority;

(b) seize any item that the investigator believes on reasonable grounds may afford evidence relevant to the investigation;

(c) take photographs or videos;

(d) require a State authority—

(i) to produce a specified document or other thing that is relevant to an investigation for examination; or

(ii) to give the investigator such information in his or her possession as the investigator may reasonably require;

(e) require a person who may be in a position to furnish information relevant to the investigation to answer any question put by the investigator to the best of that person's knowledge, information or belief.

(2) An investigator may be accompanied by such police officers or other persons while exercising powers under this section as may be necessary or desirable in the circumstances.

21W—Guidelines for investigators

(1) The Commissioner must prepare guidelines governing the exercise of powers by investigators for the purposes of this Act.

(2) The Commissioner may vary or substitute the guidelines from time to time.

(3) The guidelines must—

(a) include provisions designed to ensure that persons in relation to whom powers are to be exercised under this Act are provided with appropriate information about their rights, obligations and liabilities under this Act; and

(b) be made available free of charge on the Internet, and at premises established for the receipt of complaints by the Commissioner, for inspection by members of the public.

(4) Contravention of the guidelines constitutes a ground for suspending, dismissing or taking other disciplinary action against the investigator (but the validity of the exercise of a power cannot be questioned on the ground of contravention of the guidelines).

This amendment deals with many clauses. The amendment to clause 13 is really establishing the independence of the commissioner. Clause 14 expressly states the independence of the commissioner from the direction and control of the Crown, the minister or an officer of the Crown. The public want an independent commissioner. It also removes the notion that the commissioner will take directions from the minister. The minister has indicated that they will look at some similar wording regarding strengthening the independence of the commissioner.

Clause 15 concerns the appointment of the commissioner, and our amendments are again to strengthen the independence of the commissioner from the minister even at the appointment stage. Again, the minister has indicated that she will consider perhaps making that consistent with the appointment requirements of the commissioner for children and young people or the Ombudsman regarding that.

Clause 16 removes the responsibility of the removal of the commissioner from the government and places it on both houses of parliament. It makes it absolutely clear that the parliament is responsible for the commissioner's removal and it sets out clearly the steps and reasons for removal and requires a report to parliament to be submitted.

I will not explain clause 17. Going to clause 19, this concerns the investigative powers of the commissioner and also increasing the transparency. The minister has stated previously that none of the other states' commissioners have any investigative powers. The table prepared by the parliamentary library and updated in August 2014 this year (the table that I have) says that the ACT can investigate and decide on individual complaints, that New South Wales has no specific complaints-monitoring function, and that the Northern Territory can investigate individual complaints relating to vulnerable children regarding the provision of services by service providers and also has own-initiative complaints investigative powers.

The minister was right in saying that Queensland now no longer has investigative powers and Tasmania can only investigate individual complaints when requested by the minister, so they can investigate. Western Australia cannot act on individual complaints but is not prevented from investigating or dealing with a matter affecting the wellbeing of children and young people generally which arises through matters relating to an individual, and it monitors trends and complaints.

Certainly the Liberal amendments are designed to look at systemic issues and not in an individual case such as an ombudsman's office would deal with. But, if there is a pattern of issues that arise, the commissioner would have the ability to investigate those fully.

Also in clause 19 there is one issue that I think should definitely be changed. The wording currently says that the commissioner should consult children and young people. That is in paragraph (4) (ii) of the government bill. I believe that should be must consult children and young people.

The amendment to clause 21 clearly sets out the requirement of the annual reporting from the commissioner, what the annual report must include and when it is to be ready by. Stakeholders have requested that an annual report be made expressly clear in the act rather than relying on the Public Service Act at section 12. So whilst the minister has indicated that it is inherent that there be an annual report, I think just for clarity and for anybody reading the bill who does not have a copy of the Public Service Act, it just makes it clearer and it is in keeping with the government's intentions anyway.

Clause 21A entitles the commissioner to engage employees on terms and conditions determined by the commissioner. Again, the minister has indicated that she would consider that perhaps between the houses. Regarding part 4A, 21C expands on clause 16 of the government's bill, which relates to the functions of the commissioner, making it expressly clear what the commissioner can inquire into. In 21D, it allows the commissioner to make recommendations to the state authority. It further allows the commissioner, if they are not happy with the action (or lack of) of the state authority after providing the recommendations, they may submit a report to the minister regarding this.

Proposed new clause 21E then sets out that the commissioner must prepare and deliver to the minister a report on the inquiry. Again, the minister indicated that perhaps regarding 21D(5), she would consider looking at amending that in the upper house, again to align the reporting requirements of the commissioner to those of the Ombudsman and the Guardian for Children and Young People.

Part 4B relates to the commissioner's investigative powers; they are not like the powers given to the ombudsman to investigate all complaints. This really expands on the government's clause 19 to require a person to appear before the commissioner, and the commissioner is not just a state authority. It also removes the worrying clause that the minister may exempt a specified person from appearing before the commissioner.

Part 4C essentially enforces all of the powers the given to the commissioner by our amendments, including giving them the capability to assess systemic matters, providing investigative powers and giving them the provision to punish people if they do not do their job appropriately; for example, refusing to give evidence. That is all on amendment No. 4.

The Hon. J.M. RANKINE: The government is rejecting in its entirety amendment No. 4; however, I have had discussions with the member for Adelaide and have indicated to her that there are some areas that we will look at introducing some amendments to strengthen the bill that we have before us today. Essentially, amendment 4 really does change the very nature of the government's bill, and we reject that.

We are happy (and this bill provides) for the commissioner to undertake investigations that are at a systemic level. The whole focus of this bill is about the wellbeing of all children in South Australia and about the development of all children in South Australia. It is not a substitute for the Child Protection Act and it is not a substitute for the powers that the police or other agencies have in South Australia. I have to say that we have done more in strengthening child protection in South Australia than any other government has done.

We have introduced many agencies that protect children. The Guardian for Children and Young People, for example, was not in existence when we came into power. The Child Death and Serious Injury Review Committee was not in existence when we came into power. The Health and Community Services Complaints Commissioner was not in place when we came into power. Of course, we also have the powers of the South Australia Police. These are all bodies that have a role in investigating individual complaints, if you like.

Our commissioner, however, can investigate an individual issue if it is reflected at a systemic level. The member for Adelaide outlined very much the powers of Western Australia, for example, and this bill gives our commissioner very similar powers. To introduce those investigative powers means that we would end up with a massive bureaucracy, with massive resources required; it would completely change the focus from the wellbeing of all children to a child protection agency. I understand why the member for Adelaide may have concerns about that, but again I would highlight that other states have pulled back from that because it is a massive duplication of the resources that are already available.

The annual report provision is one that I have indicated we are happy to insert in the bill. It is required anyway under other pieces of legislation, so we are happy to do that. There is an exemption in here, and that is for very rare cases where something may be the subject of a police investigation, for example. I understand similar provisions exist in the child death and serious injury review legislation, that they cannot commence an investigation until such time as a criminal investigation is underway, so it would be inappropriate for that to occur.

I have indicated that we are happy to look at some items in this amendment, and I am happy to work with the member for Adelaide whilst this legislation is between the houses, but in essence we reject in its entirety this amendment at this time.

Amendment negatived; clause passed.

Clauses 14 to 34 passed.

New clauses 34A and 34B.

Ms SANDERSON: I move:

Amendment No 5 [Sanderson–1]—

Page 17, after line 9—Insert:

34A—Provision relating to mandatory notification under Children's Protection Act

(1) For the purposes of section 11 of the Children's Protection Act 1993, a person will not be taken to have notified the Department (within the meaning of that section) merely because he or she gave evidence, documents or other things to the Commissioner or an investigator under this Act.

(2) Section 13 of the Children's Protection Act 1993 does not apply to the Commissioner or an investigator in the exercise of his or her powers and functions under this Act (however the Commissioner or investigator must take reasonable steps to avoid disclosing the identity of a notifier (within the meaning of that section)).

34B—Protections, privileges and immunities

(1) No liability attaches to the Commissioner, an investigator or any member of the Commissioner's staff for any act or omission in good faith in the exercise or purported exercise of powers or functions under this or any other Act.

(2) Nothing in this Act affects the privileges, immunities or powers of the Legislative Council or House of Assembly or their committees or members.

(3) Nothing in this Act affects any rule or principle of law relating to—

(a) legal professional privilege; or

(b) 'without prejudice' privilege; or

(c) public interest immunity.

(4) A person is excused from answering a question or producing a document or other material in connection with an inquiry or investigation if the person could not be compelled to answer the question or produce the document or material in proceedings in the Supreme Court.

(5) The Commissioner and an investigator have, in connection with an inquiry or investigation under this Act, and in respect of any report prepared as part of an inquiry or investigation under this Act, the same protection, privileges and immunities as a Judge of the Supreme Court.

(6) A person who provides evidence to an inquiry or investigation under this Act has the same protection, privileges and immunities as a witness in proceedings before the Supreme Court.

(7) A legal practitioner who represents a person in connection with an inquiry or investigation under this Act has the same protection, privileges, immunities and obligations as counsel involved in proceedings before the Supreme Court.

(8) In this section—member of the Commissioner's staff includes any person to whom powers or functions have been delegated under this Act.

Proposed new clause 34A seeks to strengthen the notification roles. It means that it will still be mandatory to report and notify all matters, regardless of giving evidence to the commissioner. New clause 34B is to ensure the commissioner, an investigator or any member of the commissioner's staff is protected from being sued. This is very similar to what Mullighan requested in his report. The minister indicated that she might be able to agree to the mandatory reporting requirement, even though a person has given evidence to the commissioner, but I do not think she was happy with 34B.

The Hon. J.M. RANKINE: Yes, we do not accept amendment No. 5. However, I have indicated to the member for Adelaide that subclause (1) of 34A is something that the government would be prepared to have as an amendment because that emphasises and strengthens the mandatory reporting requirements of section 11 of the Children's Protection Act. As a result, a person is not taken to have notified the department merely because they have given evidence to the commissioner about a particular issue. In relation to 34B, we will assess that proposed new clause to see if there are any aspects that are not already captured elsewhere in our bill.

New clauses negatived.

Clause 35 passed.

New clause 35A.

Ms SANDERSON: I move:

Amendment No 6 [Sanderson–1]—

Page 17, after line 30—Insert:

35A—Victimisation

(1) A person who causes detriment to another on the ground, or substantially on the ground, that the other person or a third person has made or intends to make a complaint under this Act or has provided, or intends to provide, evidence or other assistance to the Commissioner in connection with an inquiry or investigation under this Act commits an act of victimisation.

(2) Causing detriment on the ground that a person—

(a) has made a false allegation; or

(b) has not acted in good faith,

does not constitute an act of victimisation.

(3) An act of victimisation under this Act may be dealt with—

(a) as a tort; or

(b) as if it were an act of victimisation under the Equal Opportunity Act 1984,

but, if the victim commences proceedings in a court seeking a remedy in tort, he or she cannot subsequently lodge a complaint under the Equal Opportunity Act 1984 and, conversely, if the victim lodges a complaint under that Act, he or she cannot subsequently commence proceedings in a court seeking a remedy in tort.

(4) If a complaint alleging an act of victimisation under this Act has been lodged with the Commissioner for Equal Opportunity and he or she is of the opinion that the subject matter of the complaint has already been adequately dealt with by a competent authority, he or she may decline to act on the complaint or to proceed further with action on the complaint.

(5) In proceedings against a person seeking a remedy in tort for an act of victimisation committed by an employee or agent of the person, it is a defence to prove that the person exercised all reasonable diligence to ensure that the employee or agent would not commit an act of victimisation.

(6) A person who personally commits an act of victimisation under this Act is guilty of an offence.

Maximum penalty: $10,000.

(7) Proceedings for an offence against subsection (6) may only be commenced by a police officer or a person approved by either the Commissioner of Police or the Director of Public Prosecutions.

(8) In this section—detriment includes—

(a) injury, damage or loss; or

(b) intimidation or harassment; or

(c) discrimination, disadvantage or adverse treatment in relation to a person's employment; or

(d) threats of reprisal.

This new clause relates to victimisation. It deals with people making false allegations and, again, protects a person who wishes to give evidence. Essentially, it makes it an offence to bully a person, such as bullying them into not providing evidence to the commissioner, and it makes it an offence to victimise a person. It clearly sets out that intimidation will not be tolerated in any way.

The Hon. J.M. RANKINE: We do not accept that as it is not applicable in the case of a government bill that does not include investigative powers for the commissioner. The issue of victimisation is already covered in public sector employment legislation.

New clause negatived.

Clause 36 passed.

New clause 36A.

Ms SANDERSON: I move:

Amendment No 7 [Sanderson–1]—

Page 18, after line 11—Insert:

36A—Evidentiary provision

In any legal proceedings, a certificate apparently signed by the Commissioner certifying as to a matter relating to—

(a) the appointment of an investigator; or

(b) a delegation; or

(c) a notice; or

(d) the receipt or non-receipt of a document or other thing,

under this Act constitutes proof, in the absence of proof to the contrary, of the matters so certified.

This proposed new clause sets out that a person appointed by the commissioner as an investigator or a delegation, etc., does not have to prove that they have been appointed by the commissioner. They have a certificate that speaks for itself, unless it is proved otherwise, which will speed up the investigatory process.

The Hon. J.M. RANKINE: It is not accepted because it is not relevant, as the commissioner will not have investigative powers.

New clause negatived.

Remaining clauses (37 and 38), schedule and title passed.

Bill reported with amendment.

Third Reading

The Hon. J.M. RANKINE (Wright—Minister for Education and Child Development) (16:26): I move:

That this bill be now read a third time.

I thank the member for Adelaide for working in such a cooperative manner in relation to progressing this bill. I know there are aspects of it that she wanted amended but understands the importance of this legislation and, hopefully, we can come to some accommodation over the amendments that we put in another place. I also thank my colleagues who spoke on this bill and the departmental staff who have worked very hard in getting this piece of legislation to the house. It has been a long period of time, and there has been a great deal of consultation with the community.

I think the piece of legislation that we are passing today very much reflects the wishes of the community in having a commissioner for children and young people who will be looking at all levels of government and the way they think and act in relation to children, no matter what aspect they are working in. It is a really important piece of legislation recognising the rights of young people in our community.

Bill read a third time and passed.

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