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House of Assembly - Fifty-Third Parliament, First Session (53-1)
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Commissioner for Children and Young People Bill

Second Reading

Mr MARSHALL (Dunstan—Leader of the Opposition) (10:38): I move:

That this bill be now read a second time.

This is a very important bill that the Liberal Party brings to the house. There is probably no other issue in South Australia at the moment which has captured the interest of the people of South Australia as much as child protection. I think it is fair to say that people on both sides of the house understand that our child protection system is not working to its optimal. We need to be doing everything we can to fix the system and to assure the people of South Australia that we have ongoing measures in place to ensure the continuous improvement of the system, the monitoring of the system, and that every child and young person living in South Australia can do so in a way which is acceptable to the people of South Australia. That is not the case at the moment.

The origins of this bill go right back to 2003. In 2003, supported by the opposition, the government established an inquiry into child protection in this state, and that inquiry was conducted by the Hon. Robyn Layton QC. One of the primary recommendations of her report to this parliament, to the government and the people of South Australia was the establishment of a commissioner for children and young people. This was in 2003, 11 years ago, when this was a primary recommendation, yet still nothing has been put in place here in South Australia.

Let's fast-forward to the Debelle inquiry. When the Debelle report was released, I distinctly remember the government standing on the steps of the parliament here saying that they would bring in new legislation to fulfil the recommendation made by the Hon. Robyn Layton—at that stage, 10 years earlier—to establish a commissioner for children and young people, and that the government would do it by the end of 2013. Let me tell you: that did not happen.

I congratulate the government that it did at least produce a draft bill before the end of last year. They put this out for consultation in July of last year. In October, when the response to that draft bill came in, it was overwhelmingly unsatisfied with the model the government put forward, mainly because they thought this commissioner, which had taken 10 years to get to this point, was toothless.

So, we made it very clear that this would be unacceptable and that, if we were elected in the March general election, we would immediately move to establish a commissioner for children and young people in this state and this commissioner would have investigative powers. We went to the election with that, the government did not fulfil its obligation to introduce its own bill, so earlier this year my colleague the Hon. Stephen Wade in the other place introduced our bill.

I am very pleased to say that this bill has passed the other place, and that is why it finds itself in this chamber today. I am not going to speak at length because quite frankly I think the contributions made in the other place have been substantial. I would like to see this bill brought to a vote today, because I think it is a very important development in our overall child protection framework here in South Australia.

However, I will highlight some of the key differences between our bill and the government's own bill it has responded with. They had plenty of time to introduce their bill; they did not do it. They only introduced it after we, in frustration, brought our own bill to the parliament. In fact, interestingly, the government introduced their bill on the afternoon of the budget.

I do not think any member of this parliament can ever remember a time when the government has introduced its legislative framework after the budget has come down on budget day. They have been caught short, they have been embarrassed by the Liberal Party again taking the lead in this important area. They have had a casual attitude towards child protection for an extended period of time. They have been caught out and it is now time for some movement.

Let's have a look at what the differences are between what we are offering, what has already passed the other place and what the government has put forward. Firstly, our commissioner for children and young people will importantly be an independent statutory officer. This is somebody who is not going to be reporting to the government of the day: this is somebody who is going to be reporting to the Parliament of South Australia.

We have strong stakeholder support for this, and why wouldn't we? Think about it. You are putting a commissioner in place to provide ongoing comment and advocacy on behalf of children and young people in this state, to provide for systems improvement recommendations—of course, that person must be independent of the government of the day, and this is a critical part of the legislation which we put forward today.

The second, and possibly the one that has received the most attention, is that we would like to see our commissioner for children and young people have investigative powers. Overwhelmingly, stakeholders have said that, if you have a commissioner without the powers of investigation, this person will just be another government bureaucrat, and that is not what we need in South Australia.

The government I think quite disingenuously has said that this will cost the taxpayers a fortune, it will set up a separate bureaucracy, with the commissioner having to make detailed investigations into tens of thousands of complaints each and every year. That is complete rubbish, and the government knows it. It is just part of this scare tactic the government has been running.

To any speakers from the government side who want to speak after me I say: be aware that we reject these claims, the stakeholders reject these claims, and the people of South Australia reject these claims. The Liberal Party is not in any way, shape or form recommending, nor is the legislation before the house in any way suggesting, that the commissioner for children and young people will take over the role of the police as the primary agency in terms of investigating child protection issues. So, I make that point.

Clause 23 of the bill before us at the moment specifically deals with matters which (and I highlight here 'may') may be investigated by the commissioner, like they are going to be investigating each and every issue raised. Also, it goes on to say that the commissioner must not investigate matters unless they are satisfied they are not being investigated by the police or the Coroner. So, there will not be a massive additional workload for this commissioner to look at all issues in South Australia. But from time to time we believe the commissioner needs to have the opportunity to look at issues that have been overlooked, or systems failures overall, in South Australia, and to leave out that investigative power is completely unsatisfactory.

Other states of Australia already have commissioners. In fact, I think we are the only state now without a commission, the only state in Australia without a commission. Other states have commissioners who have these investigative powers, and from time to time they conduct detailed investigations, report to their parliament and highlight their findings to the parliament and in the media to draw attention to problems and breakdowns, and that is exactly what we need here in South Australia.

The third major difference between our proposed legislation and the government's is in the area of accountability to the parliament. Our legislation provides for an annual report to be given to the Parliament of South Australia; again, it is part of this overall theme we have that a commissioner should be independent of the government of the day, independent of the minister, and they should be reporting to the parliament.

People have lost confidence in this government's ability to handle the crucial area of child protection in South Australia. The government should want this, it should actually be saying, 'This will be fantastic because it will be an independent audit on our performance.' It should not want to have this spectre hanging over it, this spectre and public perception of incompetence in this area. It should want it cleared up, and a commissioner would be the perfect person to do it. It will only be the perfect person to do it if they have the powers of investigation to allow them to arrive at their recommendations and the ability to conduct their office independent of the government of the day and report directly to the parliament.

I thank Stephen Wade for the enormous amount of work he has put into the development of this bill. I thank the stakeholders who have made many representations, very carefully considered, sensible and reasonable suggestions, on the bill that we should have here before us. We did not pluck this bill out of thin air. It is based upon the government's draft legislation, so that was the basis for it, but we have augmented that with very considered feedback from stakeholders, as well as our own Liberal policy. So, thank you to Stephen Wade, thank you to the stakeholders, and thank you to the Legislative Council for their careful consideration of the bill and passing it, and now it is here before us today.

The government really has to consider what it is going to do here. We would like to have a respectful debate, a vote and a resolution on this piece of legislation. The government should not be using its numbers in the parliament to play politics with such a critical issue as child protection. This is an issue which needs resolution, and I respectfully ask this chamber today to move this through to a vote so that we can move forward on this important area. I commend the bill to the house.

Ms DIGANCE (Elder) (10:51): When the government consulted the public on our draft legislation for the Child Development and Wellbeing Bill, some key feedback emerged. In addition to a children's commissioner, people wanted an overarching legislative framework for children and young people that would address their protection, their development and their wellbeing. In fact, they wanted a framework that would enable society to support and nurture them so these children could flourish and grow to be the best they could be. They wanted a child development council to ensure children's concerns were front and centre across government and the community involved in informing the nature of local services. As its title suggests, the opposition's proposed private member's bill seeks to deliver on just one of those aims.

It seeks to establish a children's commissioner only. It establishes this commissioner with powers so punitive it would set out to investigate and punish. It comes from a model of thinking that is disciplinary and disempowering, displaying a belief that parents of children need to have the big stick brought down on them. It is simplistic in nature, not realising the enormous complexity of what it is to be human and what it is to have a baby, a child or children.

Mr Marshall: Oh, give me a break. You are saying the opposition doesn't know about—

Ms DIGANCE: Steven, you are speaking to me. Thank you, I appreciate it.

The DEPUTY SPEAKER: Order! No, stop, sit down.

Ms DIGANCE: Sorry, Deputy Speaker.

The DEPUTY SPEAKER: No, I will not have it. I will leave the chamber. If you cannot sit and listen in silence as we listened to you—

Mr Marshall: This is offensive.

The DEPUTY SPEAKER: Well, it is offensive.

Mr Marshall: Are you listening to it and not ruling on it?

The DEPUTY SPEAKER: It is offensive, now please do not argue about it. I want everybody to be quiet and listen to each other today. If you have a problem with the debate, please rise and make a point of order, but do not yell across the chamber. No interjections at all.

Ms DIGANCE: It is simplistic in nature, not realising the enormous complexity of what it is to be human and what it is to have a baby, a child or children. It is a reactive bill, not proactive. This flies in the face of the Layton report, which specifically excluded the functions of deciding individual complaints and grievances.

Members interjecting:

The DEPUTY SPEAKER: Order!

Ms DIGANCE: It burdens the commissioner with being a lone advocate for children and young people, and it ties up time and resources—you need to hear this—duplicating activities of SAPOL, the health and community complaints commissioner, and the Ombudsman, to name a few.

In its core role of advocating for children and young people, this commissioner model will be completely hamstrung, restricted to responding after abuse has already occurred. Having dumped provisions like the child development council and the outcomes framework in the government bill, it fails to capitalise on the state and local government agencies and the wider community's ability to make a difference in the lives of children and young people.

While our bill entrenches the wellbeing of children and young people as a priority throughout government and actively works to create an environment where children's wellbeing and their healthy development is everyone's business, the private member's bill from those opposite has no such provision. Our bill establishes the child development council—

Members interjecting:

The DEPUTY SPEAKER: Order!

Ms DIGANCE: —and the outcomes framework—

An honourable member interjecting:

The DEPUTY SPEAKER: Order!

Ms DIGANCE: —which requires state and local government agencies to demonstrate—

Mr GARDNER: Point of order!

The DEPUTY SPEAKER: You have a point of order, member for Morialta. I hope it will not be frivolous.

Mr GARDNER: I would like to draw your attention to 118. The member is arguing for a bill that is also in the same session but which is not presently before the house.

The DEPUTY SPEAKER: I will draw that to her attention.

Ms DIGANCE: Thank you, Deputy Speaker. Our bill establishes the child development council and outcomes framework which require—

An honourable member interjecting:

The DEPUTY SPEAKER: She is talking about her bill.

Mr GARDNER: Correct, in contravention of the point of order: standing order 118.

The DEPUTY SPEAKER: You are asked not to speak about the bill.

Ms DIGANCE: Thank you, Deputy Speaker.

The DEPUTY SPEAKER: You can talk about a concept, but not the bill.

Ms DIGANCE: In the concept of our bill, the framework—

Mr Marshall interjecting:

Ms DIGANCE: —and the council were supported—

The DEPUTY SPEAKER: No, order!

Ms DIGANCE: —in the most recent consultation.

Members interjecting:

The DEPUTY SPEAKER: Order! We do not need your help. You are not to refer to the bill because it is on the table.

Ms DIGANCE: I will move on from there. When I spoke previously on this issue, I highlighted a story about a young woman, whose life's misfortune saw her as a single mother who lived alone with her toddler and a newborn baby. I spoke of her lack of extended family or direct support and how she was not coping and suffered postnatal depression. On the first visit, the signs of distress were apparent with a scene of poor hygiene of the children and herself. This was a young mother categorised at risk, and the welfare of her children was at tipping point whereby temporary removal of the children was imminent.

In this situation, there were two pathways: simply removing the children and disempowering this young mother or working with her, supporting her, building her self-esteem and helping her with parenting skills. Gladly, the latter path was chosen and the family unit flourished and grew robust as underlying issues were addressed. I remind you of this story as it demonstrates and illustrates the merits of an encompassing bill that does not just look at a children's commissioner. It looks at a focus on collaboration of professionals and community, building and reinforcing the strength of human spirit, believing that change is possible.

Striving to be our best is important and that is what we need to do as human beings. It seeks to improve the way all sectors in the community integrate policies, planning and support to help improve outcomes for children and young people. South Australia can only benefit as a fairer and more productive society if we engage a more encompassing bill as opposed to simply looking at the private member's bill which highlights a children's commissioner only. The private member's bill, I would suggest, is a lost opportunity to have a real community-wide impact on improving the lives of children across our state.

The DEPUTY SPEAKER: No-one is speaking on your side? The member for Adelaide.

Mr Marshall interjecting:

The DEPUTY SPEAKER: She is on her feet. I have just given her the call.

Mr MARSHALL: I seek to close the debate.

The DEPUTY SPEAKER: We have speakers on this side and I looked to your side first because I was told she was speaking, so we are now going to Reynell.

Mr Gardner: I told you she wasn't going to.

The DEPUTY SPEAKER: She stood up. I can't help it if she stands up, can I?

Mr Gardner: She's not standing.

The DEPUTY SPEAKER: She's not now, but here she is.

Members interjecting:

The DEPUTY SPEAKER: Order!

Ms HILDYARD (Reynell) (10:58): Thank you, Madam Deputy Speaker. As I have said very firmly in this place before, it is absolutely unquestionable that the development, wellbeing and support of every single one of our South Australian children and young people is the highest and most pressing responsibility for all of us as parliamentarians and, indeed, for every member of our South Australian community.

It is clearly an issue that is firmly in all of our hearts and minds at this time and always, and I have no doubt that we all strive for the very best for every one of our young South Australians, for there is nothing more pressing for the future of South Australia as a community than to look after our children and young people the best we can.

It is imperative that we enshrine in law our collective intention to do this, and enshrine in law processes that reinforce our collective responsibility to protect children. We can, however, only achieve our collective goal to keep our children well, safe and supported by respectfully collaborating, by employing our finest collective thinking through relentlessly putting the needs of our children and young people first, and educating, empowering and protecting every young South Australian.

We must rigorously measure those collective efforts and the results achieved by focusing on outcomes and, in contrast to what is before us, this is what our bill does. It focuses on measuring and achieving outcomes with an outcomes framework—

Mr GARDNER: Point of order, ma'am.

The DEPUTY SPEAKER: Yes, I draw the member for Reynell's attention to not quoting the bill.

Ms HILDYARD: Sure; no problem, madam Deputy Speaker, I will move on. For a bill that purports to have, at its heart, the wellbeing of children and their development, the outcomes for them are not measured nor focused on in this bill. Instead, this private member's bill is disturbingly reminiscent of the Independent Commissioner Against Corruption (ICAC) Act 2012.

What is even more frightening is that it appears to go even further in places than ICAC, creating serious criminal offences with few of the legal protections specifically included in legislation such as the ICAC Act. It contains an offence with a maximum penalty of one year's imprisonment or $25,000 for misbehaving before or wilfully insulting the commissioner or an investigator.

Exactly what this means, or who judges whether a person is misbehaving or insulting, is not clear. Whilst none of us want to see a commissioner insulted, I think we can agree that imprisoning someone for this appears extreme, and indeed detracts from the collective focus firmly being placed on children and young people it is our responsibility to keep safe, nurtured, educated and empowered.

Whilst no other state has investigative powers in this arena, this private member's bill allows the commissioner to enter any land or building, public or private, and carry out any inspection he or she considers relevant. Even the ICAC Act requires the authority of the Supreme Court for that commissioner to enter private buildings. The ICAC Act also stipulates requirements for the issuing of such a warrant and the grounds on which a warrant can be issued—neither of which appear to be contained in this bill.

Essentially, this private member's bill has much in common with the ICAC Act, with a key difference: it fails to include the protections granted by that act. This bill seeks to establish a heavy-handed, narrow, punitive model of commissioner which, in the absence of any proper costings from the opposition, is estimated to cost more than $40 million. That is a big investment for a flawed model with concerning provisions which appear to do little to actually improve children's lives.

It fails to include an outcomes framework for the state, provisions which attracted strong support in executive consultations. The council and the outcomes framework in best practice should be underpinned by a community approach to children's wellbeing and development that I have previously described in this house, and also ensure efforts are backed up by research and data. This is an approach championed by neuroscientists, researchers and economists, including the late Dr Clyde Hertzman; former thinker in residence, the late Professor Fraser Mustard; and Nobel Laureate, Professor James Heckman.

A focus on measuring effort and outcomes is also strongly supported by the community sector, which plays an integral role in supporting and protecting our youngest South Australians. Having a council and outcomes framework would ensure that state and local government agencies are held to account by requiring them to demonstrate exactly how they are working to improve outcomes for children and young people. Surely, measurable goals and formal reporting protocols are a critical feature of all that we do in this place and all that we aspire to do.

In essence, whilst the best approach is to employ a whole-of-community approach focusing on children's wellbeing and development, this private member's bill is manifestly both narrowly targeted and heavily weighted towards punishment and intervention in the aftermath of abuse. It does not focus on prevention or on education and community involvement, and certainly not on understanding whether any measures and outcomes are actually achieved. We can certainly do better than this for the wellbeing of children in South Australia and we will do so. Surely the emphasis on any legislation enacted in this area should be on what can be done to make South Australia the best possible place to raise children, not only a method of punishing those who fail to do so.

The Hon. P. CAICA (Colton) (11:05): I also rise to speak on this private member's bill. At the very least it appears to me to be hacked together with provisions drawn from both the government's Child Development and Wellbeing Bill, and I will not detail that bill given what has occurred earlier, and the ICAC Act. It appears to me in its frenzy to establish a commissioner, the opposition has stitched together a model weighed down by the obligation to decide on complaints and grievances.

I would also point out, and I heard it again on the wireless this morning—it was a nice interview between the Treasurer and the leader—the term 'an old, tired, 12-year Labor government'. I notice the opposition leader nodding his head, obviously in agreement with what he said this morning but, having a look at this, it would seem to me that what we have is a tired, thoughtless, non-progressive, in fact lazy, 12-year opposition.

This particular bill manifests itself as that and, as I said, it is weighed down, and certainly in a frenzy to establish a commission that has been cobbled together. I reinforce this point, and not many, despite their post-election rhetoric—

Mr Marshall: When are you going to make your first point, you are 1½ minutes in?

The Hon. P. CAICA: I have made my first point.

Mr Marshall: What was your first point?

The Hon. P. CAICA: My first point is that what we have is a lazy, tired, 12-year opposition that will find itself a tired, lazy, 16-year opposition in the year 2018. My other point is that they have cobbled together in a frenzy something that is not going to work and not going to deliver.

Mr TARZIA: Point of order, sir: 128. This seems irrelevant to the debate at hand.

The SPEAKER: I think the member for Colton was saying it was a bill that was 'cobbled together in a frenzy'. Whether one can cobble in a frenzy, I do not know, but I think he was addressing what he saw as the demerits of the bill. I cannot uphold that point of order.

The Hon. P. CAICA: Thank you, sir, and I will always defer to your far more superior use of the English language. The point that I was leading to, my third or fourth point, for the benefit of the leader, is that prior to the election in the very thin, if you like, pre-election policy commitments that were made by the tired, old, 12-year opposition was that $600,000 (I think it was or thereabouts) would be provided for the establishment of a child commissioner. I might be wrong here but I think it was $600,000, and I am not quite sure what could have been achieved with $600,000, let alone the proposed investigative—

The Hon. J.M. Rankine interjecting:

The SPEAKER: The Minister for Education will not heckle the member for Colton, out of her seat, and she is called to order.

Members interjecting:

The Hon. P. CAICA: That is not the first time—but, anyway, $600,000 proposed prior to the election for the establishment of a child commissioner is not going to go anywhere. Following review over the past two years—and this is a very important point which I hope is not lost on the Leader of the Opposition—no state or territory in Australia has investigative functions for their commissioner. Queensland was the last to remove them and did so recently.

The point that I make here is that continually the Leader of the Opposition is not only calling this government a tired, old government but also talks about the progressive nature of the Liberal governments on the eastern seaboard and everywhere—those progressive governments—well, they appear to be only progressive when it suits them, because Queensland, as I said, was the last to remove these provisions and it did so recently and no other state or territory in Australia has investigative—

Mr Marshall interjecting:

The Hon. P. CAICA: Gee he's rude, sir, but that is not for me to judge, that is for you as the Chair, but you are getting very loud lately, Leader of the Opposition.

The SPEAKER: Quite.

The Hon. P. CAICA: Yes, right, sir; I will move on. Quite frankly, as I said, and I will say it again, no state or territory in Australia has investigative functions for their commissioners. Queensland, that progressive Liberal government on the eastern seaboard, was the last to remove them and did so recently. This model is outdated and out of step with current practices, which focus on improving the conditions in the lives of children and young people, rather than on investigation and punishment in the aftermath of abuse.

We still do not know how much this model will cost. We can only go by the example of the old Queensland model, which was jettisoned, as I mentioned earlier, which included investigative functions and had a budget, sir, would you believe, of $40 million and hundreds of staff. Of course, this progressive opposition would do things differently than their progressive counterparts who are always being cited on the eastern seaboard.

That is a massive amount of investment in a commissioner who does little to promote prevention of child abuse, fails to ensure state and local government are making children's wellbeing a priority in their policies and, importantly, fails to promote a community-wide approach to children's wellbeing and development, which was perfectly articulated by the member for Reynell in her contribution.

Alarmingly, these resources will be tied up in investigation and, despite the words of the deputy leader in his contribution earlier, duplicating the work of SA Police and a range of other bodies, including the Guardian for Children and Young People, the Health and Community Service Complaints Commissioner, the Independent Commissioner against Corruption and the Ombudsman.

The role of advocating for children and young people must be broader than investigation and punishment. It must lead a community-wide approach to child safety, development and wellbeing. It must be an impetus for better outcomes for children from the beginning of their lives and demand everyone—and I mean everyone—take responsibility for this matter.

The Hon. S.E. CLOSE (Port Adelaide—Minister for Manufacturing and Innovation, Minister for Automotive Transformation, Minister for the Public Sector) (11:11): I move:

That the debate be adjourned.

The house divided on the motion:

Ayes 21

Noes 18

Majority 3

AYES
Bedford, F.E. Bettison, Z.L. Bignell, L.W.K.
Caica, P. Close, S.E. Digance, A.F.C. (teller)
Gee, J.P. Hamilton-Smith, M.L.J. Hildyard, K.
Hughes, E.J. Key, S.W. Koutsantonis, A.
Mullighan, S.C. Odenwalder, L.K. Piccolo, A.
Picton, C.J. Rankine, J.M. Rau, J.R.
Snelling, J.J. Vlahos, L.A. Wortley, D.
NOES
Chapman, V.A. Gardner, J.A.W. (teller) Goldsworthy, R.M.
Griffiths, S.P. Knoll, S.K. Marshall, S.S.
McFetridge, D. Pederick, A.S. Pengilly, M.R.
Pisoni, D.G. Sanderson, R. Speirs, D.
Tarzia, V.A. Treloar, P.A. van Holst Pellekaan, D.C.
Whetstone, T.J. Williams, M.R. Wingard, C.
PAIRS
Brock, G.G. Bell, T.S. Kenyon, T.R.
Redmond, I.M. Weatherill, J.W. Evans, I.F.


Motion thus carried; debate adjourned.

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