HANSARD
SITTING CALENDAR
SEARCH
LIVE BROADCAST
Hansard Dynamic Member Index
House of Assembly - Fifty-Third Parliament, Second Session (53-2)
2017-02-14 Daily Xml
Contents
Pdf Xml

Bills

Children and Young People (Safety) Bill

Introduction and First Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Industrial Relations, Minister for Child Protection Reform, Minister for the Public Sector, Minister for Consumer and Business Services, Minister for the City of Adelaide) (11:09): Obtained leave and introduced a bill for an act to protect children and young people from harm; to provide for children and young people who are in care; and for other purposes. Read a first time.

The SPEAKER: Is it seconded?

Ms Sanderson: No.

The SPEAKER: The member for Adelaide does not need to interject that it is not seconded.

Mr Gardner: Nobody has seconded it, sir.

The SPEAKER: Well, someone has seconded it, as it turns out. The member for Torrens has seconded it. It is somewhat unusual for anyone to oppose a first reading, but the member for Adelaide is welcome.

Second Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Industrial Relations, Minister for Child Protection Reform, Minister for the Public Sector, Minister for Consumer and Business Services, Minister for the City of Adelaide) (11:10): I move:

That this bill be now read a second time.

The Children and Young People (Safety) Bill 2017 is a landmark piece of legislation that repeals the Children's Protection Act 1993 and creates a new child protection framework to implement recommendations made by the Child Protection Systems Royal Commission in its report 'The life they deserve'.

The status quo is not an option, and this bill provides a scheme where the protection of children and young people from harm is at the very centre of the child protection system and is above all other priorities. It is the paramount consideration for those charged with the administration, operation and enforcement of this legislation.

Child abuse and neglect negatively affect a child's development, including the physical, psychological, cognitive, behavioural and social aspects of a child's development. They can result in attachment difficulties, trauma, physical health problems and learning difficulties. The negative effects of child abuse and neglect can be long-lasting and intergenerational. Young people and adults who were abused or neglected during childhood commonly experience mental health problems, and there is a strong association between sexual abuse and substance abuse.

It is a difficult task for the state of South Australia, or indeed any jurisdiction, to determine the appropriate threshold or trigger that should cause the state to step in and protect a child or a young person from harm or the risk of harm. This difficulty is acknowledged by the Guardian for Children and Young People, who noted in a recent annual report:

Intervention by the State is not without its difficulties and finding exactly the 'right' balance between when to intervene and when not to intervene is very challenging, as is the way in which it can be accurately expressed in legislation to cover the appropriate circumstances. Determining when the State should be authorised to investigate, modify or terminate an individual child's relationship with his or her parents is full of dilemmas.

Two major factors come into play: the rights and safety of the child and the rights of the family to be intrinsically involved in the resolution of the issues for mutual benefit. The love and care that can be provided within a family unit, in all its many varied forms, is the best and safest place for a child or young person to thrive and to gain strength. Sadly, in those cases where the jurisdiction of the Department for Child Protection is invoked, the state must step in and fulfil this role for varying lengths of time.

As the case studies in the royal commission report and the recent coronial inquests into the untimely and tragic deaths of Chloe Valentine and Ebony Napier attest, in the past there has at times been too great an emphasis placed on ensuring the preservation of the immediate family unit, with an unacceptable level of risk for a child being tolerated to achieve this.

This bill seeks to enshrine in legislation to make clear to all involved in its operation, enforcement and administration that the safety of the children and young people is the centre of the decisions made. This bill does not seek to amend the current scheme to achieve this. Instead, it provides for transformational change for child protection and within the Department for Child Protection. The bill is a framework to support those who work closest to the children and young people and empower the department to make decisions with children and young people at the centre and in their best interests.

This bill is just one of a number of reforms that this government is leading to address child abuse and neglect. Other reforms in the important areas of early intervention and prevention are being led as part of 'A fresh start', the government's response to the Child Protection Systems Royal Commission.

By way of background, on 15 August 2014, Justice Margaret Nyland received a commission from the Governor to conduct an inquiry into South Australia's child protection systems. On 5 August 2016, Commissioner Nyland provided the royal commission report to the Governor. The report contained 260 recommendations to the government, some of which require legislative reform. This bill implements part or all those legislative reform recommendations, namely, recommendations 47, 56, 63, 67, 69, 70, 95 to 101, 134, 135, 137, 153, 154, 160, 180, 198 and 242.

This bill represents one component of a suite of legislation implementing recommendations from the royal commission and reforming child protection systems in South Australia. This legislation includes the Children and Young People (Oversight and Advocacy Bodies) Act 2016, which establishes the Commissioner for Children and Young People, and the Child Safety (Prohibited Persons) Act 2016, which creates a new regime to govern working with children checks. The other related legislation is the Public Sector (Data Sharing) Act 2016 which, once in operation, will facilitate a greater capacity to share data between government and non-government agencies, thereby further strengthening a proactive capacity in the Department for Child Protection to intervene where required and in an appropriate and timely way.

I now turn to discuss key features of this bill. Chapter 2 of the bill sets out the guiding principles for the purposes of the legislation. Specifically, in chapter 2, part 1, the parliamentary declaration about the value and importance of children and young people sets a tone and provides a theme for the entirety of the legislation.

Clause 7 of the bill proceeds to make it unequivocally clear to all involved in the administration, operation and enforcement of the legislation, which includes the court, that the paramount consideration is to protect children and young people from harm. This is underpinned by clause 8, which sets out other needs of children and young people to be considered, including the need to be heard and have views considered, the need for love and attachment, the need for self-esteem and the need to achieve their full potential. However, throughout the bill, you will see that other considerations to be taken into account in its operation will always be subject to the primary objective: the safety of children and young people.

Chapter 2, part 3, sets out the principles to be applied in terms of intervention and the placement of a child or young person at risk of harm. The principles of intervention place emphasis on timely action and decision-making, stating that in the case of young children decisions and action should be made and taken as early as possible in order to promote permanence and stability for the child.

The principles also indicate that, wherever possible, adequate consideration should be given to the views expressed by the child or young person. Clause 9(3) of the bill makes clear, however, that none of the principles of intervention can displace the paramount consideration set out in clause 7 of the bill, which is the need to ensure that children and young people are safe from harm.

The placement principles set out in clause 10 of the bill confirm that a child or young person removed pursuant to the legislation should be placed in a safe, nurturing, stable and secure environment, preferably with someone known to the child or young person. Clause 11 of the bill carries across but further refines the Aboriginal and Torres Strait Islander Child Placement Principle. Importantly, the principle continues to advocate for Aboriginal and Torres Strait Islander children to be placed with their own extended families, with members of their communities or, if neither of those placements can be found, with other Aboriginal or Torres Strait Islander families.

Currently, custody and guardianship is a function undertaken by the minister under the Children's Protection Act 1993. This bill vests the guardianship of children and young people in the Chief Executive of the Department for Child Protection. Conferring this responsibility upon the chief executive also better aligns the South Australian system with systems in other jurisdictions. In accordance with the undertaking given by the government during the passage of the Children and Young People (Oversight and Advocacy Bodies) Act 2016, chapter 2 and part 4 of the bill appropriately includes the Charter of Rights for Children and Young People in Care, which is currently located in the Children's Protection Act.

Chapter 4 of the bill sets out some of the options that can be used when a child or young person is at risk but the risk is of a nature or type that does not warrant the child's removal. These provisions deal with the establishment of assessment and referral networks, convening of family group conferences and case planning. As was identified and recommended by the royal commission, either the chief executive or the court may convene a family group conference. This is necessary as a number of child protection matters may never progress to seeking court orders for various reasons. It is in these cases that the chief executive has access to a family group conference as a mechanism of early intervention to attempt to address and prevent further escalation of a child protection matter.

The Youth Court will, as is currently the case, also have the power to convene a family group conference should that be required. It is important to note here that this chapter is not an exhaustive list of all avenues of early intervention and prevention. These are only a small number which require legislative force for various reasons, including information sharing. The government has acknowledged the importance of early intervention and prevention to address child abuse and neglect in its response to the Child Protection Systems Royal Commission, and is continuing reform in this area in partnership with non-government organisations.

Chapter 5 of the bill identifies when risk arises and what should be done, commencing with reporting obligations. Part 1 reiterates that it is the duty of everyone to safeguard and promote the outcomes set in clause 4(2) of the bill but retains the existing requirements under the Children's Protection Act 1993 that certain persons must report their suspicion that a child or young person is at risk. These persons must report any suspicion formed in the course of their employment if they have reasonable grounds for their suspicion, with failure to do so attracting a significant penalty.

Part 2 sets out the nature of the assessment to be done with respect to reports received pursuant to clause 28 or by other means. Of note is that clause 29 confirms that an assessment must be done on each and every report. Importantly, clauses 30 and 31 of the bill provide greater powers for the Chief Executive of the Department for Child Protection, powers which previously required a court order. This is the ability to investigate the circumstances of a child or young person at risk and directing that a child or young person be professionally examined or assessed. This allows the department to begin assessment of a child early and not to be delayed by the court process.

Chapter 5, part 3, of the bill outlines the threshold for the removal of a child or young person providing that a child protection officer may remove a child or young person if they believe on reasonable grounds that the child or young person has suffered serious harm or there is a significant possibility they will suffer serious harm and it is necessary to remove them to protect them as there is no reasonably practical alternative. Part 3 also sets out the action to be taken once a child or young person has been removed.

Chapter 5, part 4, of the bill authorises the removal, and the chief executive's temporary guardianship, of a child born to an offender who has been found guilty of a 'qualifying offence'. These measures have been preserved and carried across from the Children's Protection Act 1993 as they arose from recommendations of the Coroner in the inquest into the death of Chloe Valentine. Chapter 6 of the bill prescribes the court processes in terms of who may make applications to the Youth Court, when the application can be made and the orders that can be made. It also provides for the legal representation of children and young people and the obligations of legal practitioners in accordance with the royal commission's recommendation 69.

Of further note is clause 51 of the bill which reverses the onus of proof so that the objector must satisfy the court, on the balance of probabilities, that the order should not be made. This arises from royal commission recommendation 154. Clause 51(2) clarifies that this does not apply to the child or young person to whom the proceedings relate or to the Crown. The government is strongly of the view that this is appropriate and necessary as a fundamental key to underpin the stability and permanency of placements made of children and young people under the guardianship of the chief executive.

The rationale for this, put simply, is the need to place children and young people who have been removed from their parents or caregivers by the Department for Child Protection at the centre of all decision-making. Matters which are the subject of orders pursuant to the current Children's Protection Act 1993 and in the future under this bill, are of a serious nature, often with children and young people having already experienced trauma or harm. The government will not allow the further trauma of instability and uncertainty regarding their placement to add further distress to not only the child or young person but their carers.

Provisions relating to foster care and foster care agencies are currently in the Family and Community Services Act 1972, which will now be addressed in chapter 7 of the bill. Specifically, chapter 7, part 1 of the bill will define 'out of home care' and the process of approval for 'approved carers' (formerly described as 'foster carers'), and when this approval can be cancelled by the chief executive.

Of note is that the application process in chapter 7, part 1, of the bill connects with the Child Safety (Prohibited Persons) Act 2016. Due to the nature of child protection, there will be instances where a child or young person must be urgently removed from the custody and/or guardianship of their parents or caregivers. Clause 69 of the bill provides a mechanism for this to be done, on a short-term, temporary basis, without infringing upon existing statutory requirements both under the bill and the Child Safety (Prohibited Persons) Act 2016.

Chapter 7, part 1, division 4, also gives effect to royal commission recommendations 99 and 100, by conferring upon approved carers entitlements to be provided with certain information and to participate in decision-making processes. Importantly, children and young people are also afforded the right to certain information about their placement with a carer.

Chapter 7, part 3, of the bill addresses the transition to long-term guardianship orders for approved carers, currently known and referred to as 'other person guardian' status or 'OPG'. Under these provisions, after two years of caring for a child or a young person, approved carers can apply to the chief executive for an application to be made to the Youth Court placing the child or young person under the approved carer's guardianship.

Once an assessment has been made and the approved carer is determined to be suitable, pursuant to clause 83 of the bill, there is a mandatory requirement that the chief executive apply to the court for such orders to give effect to the proposed long-term guardianship arrangement. As stated previously, should any person object to such an application being made, clause 51 of the bill will place the burden of proof on them as to why the order should not be made. This of itself should give greater comfort and certainty to approved carers to proceed with making long-term guardianship order applications to the chief executive and to obtain the much-needed certainty with regard to the placement of the child or young person in their care.

Part 4 of chapter 7 of the bill deals with contact arrangements for children and young people, providing, in line with royal commission recommendation 73, that contact arrangements are to be determined by the chief executive who must have regard to particular considerations, depending upon whether reunification is likely. Clause 85 of the bill provides for contact arrangements to be determined by the chief executive. There will also be a mechanism for review of these decisions pursuant to clause 87 of the bill by the Contact Arrangements Review Panel (established under clause 86).

Finally, part 8 of chapter 7 of the bill deals with the provision of assistance to young people between 16 and 26 years of age who are leaving, or have left, a care placement. This includes assistance to find accommodation, employment and support services. This is a significant step forward in assisting care leavers to make the transition from care to the adult world and providing them with a good start to adult life.

Chapter 8 of the bill reinstates child safe environments. Of note is the overwhelming community support received during consultation on the draft bill that these measures be reinstated and further refined to reflect current practice. Child abuse can occur in a variety of circumstances; however, research shows that abuse is more likely to take place in organisations that have, amongst other characteristics, inadequate guidelines, gaps between policy and practice, unwillingness to listen to the child or young persons, and poor or limited access to information.

Legislative provisions, such as those contained in chapter 8 of the bill, cause prescribed organisations to develop child protection policies, which will act as a guide to persons when a matter of concern arises. It also serves as a statement of the organisation's commitment to child safety in this state.

Royal commission recommendation 137 recommends that the government 'legislate for the development of a community visitors' scheme for children in all residential and emergency care facilities'. Chapter 9 of the bill gives effect to this recommendation. Chapter 10 of the bill, which relates to the transfer of certain orders and proceedings between South Australia and other jurisdictions, has largely been carried across from the existing Children's Protection Act 1993.

Chapter 11 of the bill addresses a range of administrative matters associated with child protection, including the powers and functions of the chief executive of the department and of child protection officers. Chapter 11, part 3, of the bill implements royal commission recommendations regarding information gathering and sharing. Part 4 of chapter 11 of the bill imposes additional reporting obligations upon the chief executive with respect to various matters, including progress in the implementation of royal commission recommendations, the allocation of caseworkers and the management of case plans. These reports must be submitted to the relevant minister annually and must be made public as soon as reasonably practicable.

Chapter 12 of the bill sets out two mechanisms for review of decisions made under the bill: internal review of a decision made by the chief executive or a child protection officer (the scope of which will be defined by regulations) and an external review by the South Australian Civil and Administrative Tribunal (SACAT). As to the latter, clause 149 confers upon SACAT jurisdiction to review certain prescribed decisions made by the chief executive in chapter 7 of the bill. For the sake of clarity, an applicant as defined seeking a review from SACAT must first exhaust the internal review of the original decision.

Many will note that this bill does not contain any consequential or transitional provisions. This will be addressed in a separate bill to be introduced into this place in the very near future. The provisions in this bill require consequential amendments to a number of statutes before coming into operation. These include the Family and Community Services Act 1972, the Youth Court Act 1993, the Youth Justice Administration Act 2016, the Children and Young People (Oversight and Advocacy Bodies) Act 2016, the Child Safety (Prohibited Persons) Act 2016, the Education and Early Childhood Services (Registration and Standards) Act 2011, the Intervention Orders (Prevention of Abuse) Act 2009, the Births, Deaths and Marriages Registration Act 1996, the Carers Recognition Act 2005, the Coroners Act 2003, the Mental Health Act 2009, the Residential Tenancies Act 1995, the Spent Convictions Act 2009 and the Summary Procedure Act 1921. Extensive transitional provisions will also be required to facilitate the transition from the existing child protection regime under the Children's Protection Act 1993 to the new.

Finally, schedule 1 of the bill addresses a related matter brought to the government's attention. South Australia remains the only jurisdiction not to be proclaimed under section 69ZF of the Family Law Act 1975. Before a proclamation can be made, amendments to the Commonwealth Powers (Family Law) Act 1986 (SA) are required to extend the referral of power to the commonwealth for family law purposes. This is needed, as the current referral of power restricts the jurisdiction of family courts where a child is subject to orders under a child welfare law and prevents a family court from making parenting orders or child maintenance orders until the child welfare order ceases.

This gap in the law is a real and increasing problem for the family and federal circuit courts practising in this jurisdiction. Currently, where an order is in place under a state child welfare law, the state order will take precedence over an order made pursuant to the commonwealth Family Law Act 1975. In practice, this means that when a child is under a guardianship order made pursuant to the Children's Protection Act 1993, the parties need to go back to the Youth Court and make a fresh application to get the state order removed before reapplying to the Family Court or Federal Circuit Court for orders concerning the child, despite the state consenting to the order being removed. This process takes time, which of most concern prolongs the uncertainty of placement for the child or young person in question and constitutes an inefficient use of resources.

Accordingly, section 3 of the Commonwealth Powers (Family Law) Act 1986 is proposed to be amended by schedule 1 of the bill. The amendment will permit the Family Court to make an order in respect of a child subject to a guardianship or custody order under the bill. However, in keeping with the approach taken by other jurisdictions in order to retain control over such child welfare matters, the Family Court will only be able to do so with the consent of the Chief Executive of the Department for Child Protection.

I wish at this point to thank all organisations, agencies both government and non-government and individuals who provided extensive and comprehensive feedback during the public consultation on the draft bill tabled on 29 November 2016. All the feedback received was considered and actioned, where appropriate, for inclusion in the bill and provided invaluable insight into areas of concern for all involved or who have an interest in child protection in South Australia. The proposed legislative reforms to the child protection system are an integral part of a larger package of reforms undertaken in response to the royal commission's recommendations. This bill forms a significant component of such reforms.

Other action will need to include policy and cultural changes within both government agencies and not-for-profit organisations undertaking functions or providing services to children and young people in this state. The introduction of this bill signals a milestone in the reform of child protection in the state of South Australia. The government looks forward to the bill being passed as soon as possible to allow those charged with the enforcement, administration and operation of the legislation to have the certainty that is necessary to commence preparations for the commencement of this legislation. I commend the bill to members and seek leave to have the explanation of clauses inserted without my reading it.

Leave granted.

Explanation of Clauses

Chapter 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

3—Act to bind, and impose criminal liability on, the Crown

This clause provides that the measure binds the Crown, and extends the liability of the Crown to include criminal liability.

Chapter 2—Guiding principles for the purposes of this Act

Part 1—The importance to the State of children and young people

4—Parliamentary declaration

This clause sets out a number of declarations by Parliament in relation to children and young people.

5—Duty to safeguard and promote the welfare of children and young people

This clause expresses the principle underlying this measure that everyone is responsible for the safety of children and young people.

6—Interaction with other Acts

This clause states that this measure is to work in conjunction with the specified Acts, and does not limit other laws.

Part 2—Priorities in the operation of this Act

7—Safety of children and young people paramount

This clause sets out that, in the administration, operation and enforcement of this Act, the paramount consideration must always be to ensure that children and young people are, so far as is reasonably practicable, protected from harm. All other clauses of the measure are subordinated to this clause.

8—Other needs of children and young people

This clause sets out further needs of children and young people that are to be considered in terms of the measure.

Part 3—Principles to be applied in operation of this Act

9—Principles of intervention

This clause sets out the principles of intervention to be applied in respect of the performance of functions and powers under this measure.

The clause makes it clear that the Court is also bound by the requirements under the proposed section.

10—Placement principles

This clause sets out the principles to be applied in respect of placing children and young people removed under this measure, with the preference expressed for placing them with a person with whom they have an existing relationship.

The clause makes it clear that the Court is also bound by the requirements under the proposed section.

11—Aboriginal and Torres Strait Islander Child Placement Principle

This clause sets out the Aboriginal and Torres Strait Islander Child Placement Principle, which is to be observed in placing Aboriginal and Torres Strait Islander children in young people in care under the measure.

Part 4—Charter of Rights for Children and Young People in Care

12—Charter of Rights for Children and Young People in Care

This clause is the same as the provisions relating to the Charter under the repealed Act, relocated into this measure.

Chapter 3—Interpretation

13—Interpretation

This clause defines terms and phrases used in the measure.

14—Meaning of harm

This clause defines what 'harm' is for the purposes of the measure.

15—Meaning of at risk

This clause defines what it is for a child and young person to be 'at risk' for the purposes of the measure.

16—Minister may publish policies

This clause empowers the Minister to publish policies for the purposes of the measure, and makes procedural provision in respect of such policies. The policies are binding on persons or bodies engaged in the administration, operation or enforcement of the measure.

Chapter 4—Managing risks without removing child or young person from their home

Part 1—Child and Family Assessment and Referral Networks

17—Minister may establish Child and Family Assessment and Referral Networks

This clause empowers the Minister to establish Child and Family Assessment and Referral Networks, and makes procedural provision in respect of such networks, including the conferral of functions on them by the measure or the Minister.

Part 2—Family group conferences

18—Purpose of family group conferences

This clause sets out what family group conferences are intended to achieve.

19—Chief Executive or Court may convene family group conference

This clause sets out that either the Chief Executive or Court may convene a family group conference, and when a conference can be convened.

20—Who may attend a family group conference

This clause sets out who is entitled to attend a family group conference, and continues the effect of the current provision in the repealed Act.

21—Procedures at family group conference

This clause sets out the procedures for family group conferences, and continues the effect of the current provision in the repealed Act

22—Review of arrangements

This clause sets out when further conferences are to be convened to review arrangements, and continues the effect of the current provision in the repealed Act.

23—Chief Executive etc to give effect to decisions of family group conference

This clause requires the Chief Executive and State authorities to give effect to decisions made at family group conferences, subject to the provisos specified.

24—Statements made at family group conference not admissible

This clause provides that things said at family group conferences are not admissible in legal proceedings.

Part 3—Case planning

25—Chief Executive to prepare case plan in respect of certain children and young people

This clause requires the Chief Executive to cause a case plan to be prepared in respect of each child and young person prescribed by the clause. The clause sets out what must be in such plans.

26—Chief Executive etc to give effect to case plan

This clause requires persons and bodies engaged in the administration, operation or enforcement of this measure to exercise their powers and perform their functions so as to give effect to case plans.

A case plan does not, however, create legally enforceable rights or obligations.

Chapter 5—Children and young people at risk

Part 1—Reporting of suspicion that child or young person may be at risk

27—Application of Part

This clause sets out the persons to whom the Part applies, and clarifies that any duty of care a person might otherwise owe to a child or young person is not necessarily met simply by reporting risk under the proposed Part.

28—Reporting of suspicion that child or young person may be at risk

This clause requires persons to whom the proposed Part applies to report, in a manner specified by the Minister, their reasonable suspicions formed in the course of their employment and relating to children and young people who may be at risk.

Part 2—Assessment of risk to child or young person

29—Chief Executive must assess and may refer matter

This clause requires the Chief Executive to assess reports and notifications of risks to children and young people, and makes procedural provision in relation to such assessments.

30—Chief Executive may investigate circumstances of a child or young person

This clause empowers the Chief Executive to investigate the circumstances of a child or young person.

31—Chief Executive may direct that child or young person be examined and assessed

This clause empowers the Chief Executive to direct that a child or young person be examined and assessed, and makes procedural provision in relation to such examinations and assessments.

The clause creates an offence where a person who has examined or assessed a child and young person fails to provide a written report on the examination or assessment to the Chief Executive.

Part 3—Removal of child or young person

32—Removal of child or young person

This clause empowers child protection officers to remove children and young people from dangerous situations, and sets out when such removals can happen.

33—Action following removal of child or young person

This clause sets out what action a child protection officer is to take on removing a child or young person under section 32.

34—Custody of removed child or young person

This clause provides that children and young people removed under section 32 are automatically in the custody of the Chief Executive for the specified period.

Part 4—Chief Executive to assume guardianship of child or young person where parent found guilty of certain offences

35—Interpretation

36—Temporary instruments of guardianship

37—Restraining notices

38—Court may extend period

39—Certain information to be provided to Chief Executive

This Part is the current scheme relating to the assumption of guardianship of children and young people where a parent is found guilty of certain offences, relocated from the repealed Act.

Chapter 6—Court orders relating to children and young people

Part 1—Applications for Court orders

40—Who may make application for Court orders

This clause sets out who may apply for Court orders under proposed section 44.

41—When application can be made for Court orders

This clause sets out the circumstances in which an application for Court orders may (and, in the case of subclause (1), must) be made.

The clause also requires the Chief Executive to assess whether or not a reunification is likely between a child or young person and the person from whom they are removed before applying for orders of the kind specified in subclause (5).

42—Parties to proceedings

This clause sets out who the parties are in certain proceedings under the measure.

43—Copy of application to be served on parties

This clause requires a copy of applications made for orders under proposed section 44 to be served on the parties to the application.

Part 2—Orders that can be made by Court

44—Orders that may be made by Court

This clause sets out the orders that can be made under the measure, including orders placing a child or young person under the guardianship or in the custody of the Chief Executive or another person.

Orders under this proposed section cease to have effect once a child or young person turns 18.

45—Consent orders

This clause provides that the Court may make orders under section 44 with the consent of the parties, and in doing so need not consider the matters that would otherwise need to be considered by the Court.

46—Variation, revocation or discharge of orders

This clause sets out that parties to proceedings may apply for the variation or revocation of Court orders, or the discharge of applications.

47—Adjournments

This clause requires proceedings under the measure to be dealt with expeditiously, with due regard to the degree of urgency of each particular case, and makes provisions for adjournments of proceedings accordingly.

48—Court not bound by rules of evidence

This clause provides that the Court is not bound by the rules of evidence but must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal form.

49—Standard of proof

This clause provides that the standard of proof in proceedings under the measure is the civil standard, ie matters are to be proved on the balance of probabilities. However, this standard does not apply in criminal proceedings.

50—Onus on objector to prove order should not be made

This clause provides that if a person (other than the relevant child or young person or the Crown) objects to the making of an order by the Court, the onus is on the person to prove to the Court that the order should not be made.

51—Orders for costs

This clause allows the Court to make orders for costs where an application is dismissed.

52—Non-compliance with orders

This clause creates an offence for a person to contravene or fails to comply with a Court order that has been served on them.

Part 3—Child or young people to be heard in proceedings

53—Views of child or young person to be heard

This clause confers on children and young people a right to be heard in proceedings under the measure that relate to them, subject to the limitations in the clause.

Part 4—Representation of children and young people

54—Legal practitioners to comply with this section when representing child or young person

This clause sets out requirements that must be satisfied by legal practitioners acting for children and young people under the measure. Of particular note is that the lawyer must, as far as is reasonably practicable, act in accordance with any instructions given by the child or young person and, to the extent that the child or young person has not given instructions, must act in accordance with the legal practitioner's own view of the best interests of the child or young person.

55—Limitations on orders that may be made if child or young person unrepresented

This clause limits the ability of the Court to hear an application for orders under the measure where the child or young person to whom the application relates is unrepresented.

The clause also sets out when applications can be heard despite the child or young person being unrepresented.

Part 5—Miscellaneous

56—Conference of parties

This clause enables the Court to require the parties to proceedings under the measure to confer purpose of determining what matters are in dispute, or resolving any matters in dispute, and makes procedural provision in respect of conferences.

57—Right of other interested persons to be heard

This clause confers a right to be heard in proceedings before the Court on the persons specified.

58—Court may refer a matter to a family group conference

This clause allows the Court to adjourn proceedings under measure for the purpose of referring specified matters to a family group conference for consideration and report to the Court by the conference.

59—Effect of guardianship order

This clause provides that, where the Court places a child or young person under the guardianship of the Chief Executive or any other person or persons under the measure, the Chief Executive or the other person or persons is, or are, the lawful guardian, or guardians, of the child or young person to the exclusion of the rights of any other person.

Chapter 7—Children and young people in care

Part 1—Approved carers

Division 1—Preliminary

60—Interpretation

This clause defines the term 'out of home care'.

61—Chief Executive may establish different categories of approved carers

This clause enables the Chief Executive to establish different categories of approved carers for the purposes of the measure.

Division 2—Approval of carers

62—Out of home care only to be provided by approved carers

This clause creates an offence for a person to provide out of home care unless they are an approved carer, or are otherwise authorised to do so under the measure.

63—Approval of carers

This clause sets out the process by which the Chief Executive is to approve approved carers under the measure.

64—Ongoing reviews of approved carers

This clause requires the Chief Executive to ensure that approved carers are the subject of regular assessment, and that training and other support is provided to them.

65—Cancellation of approval

This clause sets out the circumstances in which the Chief Executive may revoke the approval of an approved carer.

66—Certain information to be provided to Chief Executive

This clause requires approved carers to provide the information specified in the clause to the Chief Executive, with an offence created for those who fail to do so.

67—Delegation of certain powers to approved carer

This clause enables the Chief Executive to delegate specified powers to approved carers.

Division 3—Temporary placement of child or young person where approved carer not available

68—Temporary placement of child or young person where approved carer not available

This clause enables the Chief Executive to place a child or young person who is removed under this Act, or who is in the custody or under the guardianship of the Chief Executive, in the care of a person despite that person not being an approved carer if the Chief Executive is satisfied of the matters referred in subclause (1). Such placements must be temporary, exceptional arrangements and must be regularised as soon as it is reasonably practicable to do so.

Division 4—Information and involvement in decision-making

69—Interpretation

This clause defines the term 'placement agency' for the purposes of the Division.

70—Approved carers to be provided with certain information prior to placement

This clause requires a placement agency to provide prospective approved carers with whom the placement agency is considering placing a child with information the enables the approved carer to make a fully informed decision as to whether to accept the placement.

71—Children and young people to be provided with certain information prior to placement

This clause requires a placement agency that is considering placing a child or young person with an approved carer to provide to the child or young person the prescribed information in relation to the approved carer.

72—Approved carers to be provided with certain information

This clause requires a placement agency that has placed a child or young person with an approved carer to provide to the approved carer information of the specified kind (being information that is in the agency's possession).

73—Approved carers entitled to participate in decision-making process

This clause clarifies that, subject to the provisions of proposed Chapter 2 of the measure, an approved carer in whose care a child or young person is placed is entitled to participate in any decision-making process decision relating to the health, safety, welfare or wellbeing of the child or young person.

74—Non-compliance with Division not to invalidate placement

This clause clarifies that a refusal or failure to comply with a requirement under the proposed Division does not, of itself, invalidate a placement of a child or young person with an approved carer.

Part 2—Children and young people in Chief Executive's custody or guardianship

75—Chief Executive's powers in relation to children and young people in Chief Executive's custody or guardianship

This clause sets out the powers that the Chief Executive may exercise in relation to a child or young person who is in their custody or under the guardianship. The clause makes further procedural provision in respect of the exercise of powers under the proposed section.

76—Review of circumstances of child or young person under long-term guardianship of Chief Executive

This clause requires the Chief Executive to cause a review of the circumstances of each child or young person prescribed under the proposed section to be carried out at least once in each 12 month period.

77—Direction not to communicate with, harbour or conceal child or young person

This clause empowers the Chief Executive to give directions of the kind specified if the Chief Executive believes it is reasonably necessary to prevent harm being caused to certain children and young people, or to prevent them from engaging in, or being exposed to, conduct of a criminal nature. A failure to comply with such a direction is an offence.

78—Offence of harbouring or concealing absent child or young person

This clause creates an offence for a person to harbour or conceal, or prevent the return of, a child or young person who is absent from a State care placement (or to assist another person to do so).

79—Unlawful taking of child or young person

This clause creates an offence for a person to encourage a child or young person to leave a place in which they were placed under the measure, or to take a child or young person from such a place, or to harbour or conceal a child or young person who has left or been taken from such a place.

Part 3—Transition to long-term guardianship

80—Certain approved carers may apply to Chief Executive to seek long-term guardianship order

This clause makes arrangements such that an approved carer in whose care a child or young person has been for a period of at least 2 years (or such shorter period as the Chief Executive may determine) may apply to the Chief Executive for an application to be made to the Court in accordance with this Part for an order placing the child or young person under the approved carer's guardianship.

The clause also requires the Chief Executive to assess the suitability of such applicants to be guardians of the relevant child or young person.

81—Long-term care plan to be prepared

This clause requires that, where an assessment under proposed section 80 suggests that an applicant is a suitable guardian for a child or young person, the Chief Executive must cause a long-term care plan to be prepared in respect of the child or young person, and provide a copy of the plan to the Court in the relevant application.

82—Chief Executive to apply to Court for order to place child or young person under long-term guardianship

This clause requires the Chief Executive, in the circumstances specified, to apply to the Court for such orders under proposed section 44 as the Chief Executive considers necessary or appropriate to give effect to proposed long-term guardianship arrangement.

Part 4—Contact arrangements in respect of children and young people

83—Application of Part

This clause sets out the children and young people to whom the proposed Part applies.

84—Contact arrangements to be determined by Chief Executive

This clause confers on the Chief Executive the function of determining contact arrangements in respect of children and young people to whom the proposed Part applies.

The clause also makes procedural provision in respect of the making of determinations under the proposed Part.

85—Contact Arrangements Review Panel

This clause requires the Minister to establish a Contact Arrangements Review Panel to review contact arrangements made under the proposed Part. The Panel is to have the jurisdiction and powers set out in the regulations.

86—Review by Contact Arrangements Review Panel

This clause provides a right of review of contact arrangements to a person allowed contact with a child or young person under contact arrangements under the proposed Part, and sets out procedures and powers of the Contact Arrangements Review Panel in respect of such reviews.

Part 5—Voluntary custody agreements

87—Voluntary custody agreements

This clause enables parents or guardians of a child or young person to enter a short term (ie up to 6 months in total) voluntary custody agreement in respect of the child or young person with the Chief Executive, placing the child or young person in the custody of the Chief Executive. The clause makes procedural provision with respect to such agreements.

Part 6—Foster care agencies

88—Interpretation

89—Foster care agencies to be licensed

90—Licence to carry on business as foster care agency

91—Cancellation of licence

92—Record keeping

93—Ongoing reviews of approved carers by agency

This Part is the current scheme relating to foster care agencies relocated from the Family and Community Services Act 1972.

Part 7—Licensed children's residential facilities

94—Interpretation

95—Children's residential facilities to be licensed

96—Licence to operate children's residential facility

97—Cancellation of licence

98—Record keeping

99—Child protection officer may inspect licensed children's residential facility

100—Chief Executive to hear complaints

This Part is the current scheme relating to Licensed children's residential facilities relocated from the Family and Community Services Act 1972.

Part 8—Provision of assistance to care leavers

101—Chief Executive to assist persons leaving care

This clause requires the Chief Executive to assist the child or young person in making their transition from care by preparing, in consultation with the child or young person, a plan setting out steps to make the transition easier.

102—Minister to arrange assistance for eligible care leavers

This clause requires the Minister to cause assistance of the kind contemplated by the proposed section to be offered (and, where accepted, to be provided) to certain care leavers for the purposes of making their transition from care as easy as is reasonably practicable.

Part 9—Miscellaneous

103—Agreement for funeral arrangements of children and young people in care

This clause requires the Chief Executive to assist specified parties to reach an agreement about funeral arrangements for children and young people who were in care at the time of their death.

Chapter 8—Providing safe environments for children and young people

104—Certain organisations to ensure environment is safe for children and young people etc

This clause requires organisations prescribed under the proposed section to provide what were, under the repealed Act, known as 'child safe environments'. The clause sets out steps the organisation must take to comply with the section, and creates an offence for non-compliance with those requirements.

105—Policies and procedures to be reviewed

This clause requires prescribed organisations to review the policies and procedures prepared or adopted under section 104 at least once in every 5 year period.

Chapter 9—Child and Young Person's Visitor scheme

106—Interpretation

This clause defines the term 'prescribed facility' used in the proposed Chapter.

107—Child and Young Person's Visitor

This clause enables the Minister to establish a visitor scheme in respect of children and young people.

108—Functions and powers

This clause sets out the functions and powers of the Child and Young Person's Visitor, should one be established.

109—Reporting obligations

This clause requires the Child and Young Person's Visitor to provide reports to the Minister on their work, and also enables the Child and Young Person's Visitor to prepare special reports on relevant matters, and requires both kinds of reports to be laid before Parliament.

Chapter 10—Transfer of certain orders and proceedings between South Australia and other jurisdictions

Part 1—Preliminary

110—Purpose of Chapter

111—Interpretation

Part 2—Administrative transfer of child protection order

112—When Chief Executive may transfer order

113—Persons whose consent is required

114—Chief Executive to have regard to certain matters

115—Notification to child and guardians

116—Limited period for review of decision

Part 3—Judicial transfer of child protection order

117—When Court may make order under this Part

118—Type of order

119—Court to have regard to certain matters

120—Duty of Chief Executive to inform the Court of certain matters

Part 4—Transfer of child protection proceedings

121—When Court may make order under this Part

122—Court to have regard to certain matters

123—Interim order

Part 5—Registration of interstate orders and proceedings

124—Filing and registration of interstate documents

125—Notification by Registrar

126—Effect of registration

127—Revocation of registration

Part 6—Miscellaneous

128—Appeals

129—Effect of registration of transferred order

130—Transfer of Court file

131—Hearing and determination of transferred proceeding

132—Disclosure of information

133—Discretion of Chief Executive to consent to transfer

134—Evidence of consent of relevant interstate officer

This Chapter is the current scheme relating to the transfer of orders and proceedings between the State and other jurisdictions, simply relocated from the repealed Act.

Chapter 11—Administrative matters

Part 1—Functions of Chief Executive etc

135—Functions of the Chief Executive

This clause sets out the functions of the Chief Executive under the measure.

136—Powers of delegation

This clause is a standard power of delegation in respect of the functions and powers of the Minister and the Chief Executive.

Part 2—Child protection officers

137—Child protection officers

This clause sets out who is a child protection officer under the measure.

138—Primary function of child protection officers

This clause clarifies that the primary function of child protection officers under the measure is the removal of children and young people from situations in which they are at risk of harm.

139—Powers of child protection officers

This clause sets out the powers of child protection officers under the measure.

140—Child protection officer may require information etc

This clause empowers child protection officers to require a person or body (whether a State authority or otherwise) to provide specified information and documents, and to answer questions or provide written reports. Failure to comply with the requirement is an offence.

Part 3—Information gathering and sharing

141—Chief Executive may require State authority to provide report

This clause empowers the Chief Executive to require a State authority to prepare and provide a report on certain matters, where to do so would assist the performance of functions under the measure. The clause sets out what is to happen should a State authority not comply with the requirement.

142—Sharing of information between certain persons and bodies

This clause provides that the persons and bodies specified in the clause may, for the purposes specified, exchange information and documents with each other. This applies despite limitations imposed under other Acts, but information so dealt with cannot be disclosed except in accordance with the regulations.

143—Certain persons to be provided with documents and information held by the Department

This clause allows certain persons to apply to the Chief Executive to be provided with documents and information of a specified kind relating to a prescribed person, being a person who was at some point in care.

144—Internal Review by Chief Executive

This clause confers on an applicant for documents or information under proposed section 143 a right of review by the Chief Executive of a decision to refuse to provide the relevant documents or information.

145—Interaction with Public Sector (Data Sharing) Act 2016

This clause clarifies the relationship of the proposed Part to the Public Sector (Data Sharing) Act 2016.

Part 4—Additional reporting obligations of Chief Executive

146—Additional annual reporting obligations

This clause requires the Chief Executive to report to the Minister on the matters specified, and for the report to be laid before Parliament and published on a website.

Chapter 12—Reviews of decisions under Act

Part 1—Internal review

147—Internal review

This clause establishes an internal review process able to be accessed by persons who are aggrieved by decisions of the Chief Executive or child protection officers under the measure.

Part 2—Review of decisions by South Australian Civil and Administrative Tribunal

148—Review of decisions by South Australian Civil and Administrative Tribunal

This clause confers jurisdiction on the SACAT to review specified administrative decisions under this measure.

149—Views of child or young person to be heard

This clause requires a child or young person to whom proceedings relate to be given a reasonable opportunity to state their views about their care to the South Australian Civil and Administrative Tribunal.

Chapter 13—Miscellaneous

150—Hindering or obstructing a person in execution of duty

This clause creates an offence for a person to hinder or obstruct the Chief Executive, a child protection officer or any other person in the performance of a function, or exercise of a power, under the measure.

151—Payment of money to Chief Executive on behalf of child or young person

This clause enables the Chief Executive to receive money on behalf of a child and young person, and makes procedural provision in respect of such monies.

152—Restrictions on publication of certain information

This clause creates an offence for a person to publish a report of a family group conference, or of any statement made or thing done at a family group conference.

153—Protection of identity of persons who notify Department

This clause creates an offence for a person who receives a report or notification under the measure that a child or young person may be at risk to disclose the identity of the informant.

154—Confidentiality

This clause creates an offence for a person engaged or formerly engaged in the administration of measure to divulge or communicate personal information obtained (whether by that person or otherwise) in the course of official duties except in the circumstances specified.

155—Victimisation

This clause creates an offence for a person to victimise another because that other person provides, or intends to provide, information under the measure.

156—Protections, privileges and immunities

This clause provides that no civil liability attaches to the Crown, the Minister, the Chief Executive, a child protection officer or any other person for any act or omission in good faith in the exercise or purported exercise of powers or functions under the measure, and clarifies the status of various privileges and immunities for the purposes of the measure. This includes vicarious liability.

157—Evidentiary provision

This clause allows the information specified to be given in legal proceedings by way of allegation in an information.

158—Service

This clause sets out how notices and documents under the measure are to be served on a person.

159—Review of Act

This clause requires the Minister to cause a review of the operation of this measure to be conducted, and a report on the review to be prepared and submitted to the Minister. The report is then to be laid before Parliament.

160—Regulations

This clause is a standard regulation-making power.

Schedule 1—Repeal and related amendment

Part 1—Preliminary

1—Amendment provisions

This clause is formal.

Part 2—Repeal of Children's Protection Act 1993

2—Repeal of Children's Protection Act 1993

This clause repeals the current Children's Protection Act 1993.

Part 3—Amendment of Commonwealth Powers (Family Law) Act 1986

3—Amendment of section 3—Reference of certain matters relating to children

This clause makes an amendment to the principal Act to enable the Family Court to make orders in relation to children and young people under guardianship under this measure or the repealed Act without the State needing to first revoke the guardianship order.

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (11:36): I rise to speak on the Children and Young People (Safety) Bill 2017. I indicate that I will not be the lead speaker; the member for Adelaide will undertake responsibility for the management of the bill. I rise to make a contribution in respect of two matters. One is the manner in which this bill has been brought to the house, which we have now had for 6½ minutes as it was delivered by the staff. It comes after the government has spent over a decade of gross mismanagement and neglect of the protection of children in this state.

There has been a monumental failure to the children of our state which has been repeatedly confirmed in inquiries, reports and royal commissions culminating, in about August last year, with the Nyland royal commission. Kicking and screaming, the government brought some legislative amendment to enable the establishment of a commissioner for children. We had been asking for that for three years. There had been a massive objection to that person having responsibility with investigative powers to protect our children.

Throughout the time since that last report, we have worked with the government as best we can not just to try to advance and progress the legislative framework, which is necessary to comply with the recommendations accepted by the government from the Nyland commission, but also to address the programs and funding that need to be considered in how we best manage it. So far, we have had press releases from the government. We had an indication in the dying days of the parliament last year that the government would table a draft bill, notwithstanding that we had an extra week available to sit last year and the government chose not to.

The matter was put off for consultation until, I think, 27 January. That was two weeks ago. Regrettably, only today are we handed a copy of the bill which the government now asks the parliament to deal with. I consider that to be not just immature conduct by the Attorney-General and totally disrespectful to the parliament but also very concerning given that, last Wednesday, the Attorney-General's office advised the opposition that there were a number of bills they wished to progress this week for which they sought priority. In response to the specific question, 'Are you bringing forward the child protection bill?'—asked, frankly, in full expectation that the government would do so, to ensure that this important issue would be canvassed, traversed and of course voted upon—the answer was no.

The first notice we had from the government was the Attorney advising the leader late last week—I think it was on Friday—that he could have a briefing on the proposed draft bill. Fine, excellent, thank you very much; I understand one has been scheduled for 1 o'clock today. However, minutes before we came into the parliament we find that not only is the government going to table it and hold us up for a half-hour speech by the Attorney until we even finally get a copy of it but he now wants us to debate it.

There are aspects of this bill—in its draft form, and assuming they are still there—that raise some concern for me. I am very concerned that tacked onto this bill is the remedying of a defect in our statutory child protection law with the Family Law Act which, frankly, has been sitting around for a very long time. It has just been tacked on today. It is a matter which does need to be remedied, but doing it on a formula of having a chief executive make a decision about whether they have consent will, frankly, just add another layer of bureaucracy instead of the one we have.

However, we will have a look at it, and we are happy to have a look at it to try to make sure that we best manage those sorts of issues, but the fact that we are the only jurisdiction in Australia that still has not attended to this just shows how lazy and inept someone is in the Attorney-General's Department in respect of the management of these issues. It should have been dealt with a long time ago.

The second thing I want to say—because I am sure our lead speaker will go through a number of the aspects of where we think there is an agreed improvement or where there is some legislative reform that needs to be added to—is that I want to address the omissions. For me, there is a clear and stark omission yet again, after we have received the Nyland royal commission report and following the inquiry by His Honour the late Ted Mullighan QC, former judge of the Supreme Court, into child protection and care. Both recommended that there be a 'secure, therapeutic care model supported by legislation to permit children to be detained in a secure therapeutic care facility but with an order of the Supreme Court required before a child is so detained', etc.

I was reading from recommendation 152 of the Nyland royal commission report, which reflects almost word for word the concerns raised by His Honour Mr Ted Mullighan and his recommendation that you cannot leave children on the streets: it is too dangerous. We have to do something about that, and I find it unconscionable that here we are again mopping up this decade of completely inept management of the protection of children.

We have had two former Supreme Court judges, two people who would have to be seen as premier in their expertise and experience in relation to child protection, both saying to the government of South Australia, 'This is a necessary step if you are going to protect children, particularly those who either have parents who are unwilling or unable to look after them or those who are at large on the streets.'

How many times does the government have to hear this? Why does it not consider it? Has the government considered the option and rejected it? If so, why? I will tell the house why, and I think the parliament needs to reflect on this: the government always looks for the cheap, easy option. Providing secure, therapeutic care and providing security and safety for children in this environment, recommended by two royal commissioners but ignored by this government, will save lives—but it costs money. That is what this is all about.

I say it again: it is utterly disgraceful that the government has not only come in with an expectation that we debate this bill but it also has not made any commitment—in the brief perusal of this final draft—towards secure, therapeutic care. The government is walking around with blinkers on and hoping. It is a little bit like electricity: it knows there is a major problem, the lights have gone out a few times and everyone is in the dark and they are pretty shitty about it, but it wants to look at the cheap option.

Give the public reassurance that they are not going to have any more blackouts, that everything is going to be fine, and just keep your fingers crossed, but do not actually do anything about it. Make all the promises in the world. I say to the Attorney: do not treat this parliament with such contempt and disrespect.

The Hon. J.R. Rau: Like you.

The DEPUTY SPEAKER: Order!

Ms CHAPMAN: Understand the importance of the protection of children as the highest priority for those of us in leadership who need to make decisions on behalf of protecting these children. Do not come in here and treat us in a contemptuous way, which reflects the real view about the priority for the protection of these children. If they really cared about this, they would have prepared that draft as soon as the consultation was finished, sent us a copy of the draft, sat down and talked with us to make sure that we will not go through what will now be an endless program of debate and, more particularly, of questioning and going through the process. That should not be happening on this parliament floor; it should have happened before.

Look what happened when the Attorney-General was in charge of the planning bill. What a fiasco! He comes in and throws down a draft, and we have hundreds of our own amendments before we even get the bill out of this house, let alone by the time it reaches the Legislative Council. This is legislation being made in areas that now have the highest priority—namely, the protection of our children—on the run and in the dark, but that is where they have put us. We will work through this because on this side of the house it is really important to us that we get it right. However, it is scandalous that the government comes in and treats the parliament with such contempt.

Mr PEDERICK (Hammond) (11:46): I rise to speak on the Children and Young People (Safety) Bill 2017. I reflect on the comments of the deputy leader and I agree: the planning bill was an absolute disgrace, and this is a disgrace, the way it has been introduced to the parliament without going through the proper processes so that we, on this side of the house, can properly brief ourselves on what is coming before us.

I note that in the planning bill we were in the committee stage, and we were at clause 50, when there were significant reforms put into the bill around planning legislation that affects everyone from Kapunda to Goolwa and in between, including the Rural City of Murray Bridge. It has been done sloppily. The deputy leader is absolutely right that child protection is first and foremost the priority, but we must get it right. For legislation like this to be put in front of our noses on the first sitting day, without prior briefings, is disgraceful. However, we will go through the process of debating this bill.

In regard to a legislative change I made—with support from the Minister for Education, the Attorney-General and their officers—to the Statutes Amendment (Rights of Foster Parents, Guardians and Kinship Carers) Bill 2016, I note that it was a long process because I had to find some people who would work with me, and I appreciate that. I came up with about nine different amendments, and I acknowledge the staff and the two officers, especially the close contact I had with one of the Attorney's staff, to make sure that I could achieve something that the parliament would agree to.

I note that part of the bill regarding the rights of foster-parents, guardians and kinship carers was an amendment to the Family and Community Services Act 1972 (namely, clause 85—Agreement for funeral arrangements of child under care) has come into this legislation under part 9, Miscellaneous, clause 103—Agreement for funeral arrangements of children and young people in care.

I am very pleased to see that as part of the legislation, but I would like clarification from the Attorney. I note his comments in his speech about the amendments to another raft of legislation associated with this piece of legislation. There is going to be talk about ratifying pieces around the amendment of the Births, Deaths and Marriages Registration Act 1996. This was also a very important piece of the Statutes Amendment (Rights of Foster Parents, Guardians and Kinship Carers) Bill 2016. Under 'Notification by court appointed guardians':

(1) A person may give notice to the Registrar that a person named in the notice was a court appointed guardian (other than a parent) of a person who has died at the time of the death.

(2) A notice under subsection (1) must—

(a) be given as soon as reasonably practicable after the death of the deceased; and

(b) be in writing in a form approved by the Registrar; and

(c) include a copy of the order of the Youth Court of South Australia placing the child under the guardianship of the person named in the notice; and

(d) include the information required by the Registrar.

(3) The Registrar may require a person giving notice under subsection (1)—

(a) to provide further specified information or documents within a specified time; and

(b) to verify, by statutory declaration, information provided for the purposes of the notice.

I get down to where we discussed, in this piece of legislation, clause 5, amendment of section 39 of the Births, Deaths and Marriages Registration Act 1996:

(3) If the Registrar has received a notice under section 38A, the Registrar must include the name of the guardian of the deceased named in the notice in the entry of the Register relating to the death of the deceased.

I am pleased to see one part of the legislation acknowledged. The births, deaths and marriages registration part may still be a stable under that act, but I would like some reassurance of that from the minister. As I said, we must make sure that our children must come first and foremost. I believe there are over 3,000 children in the care of the minister, who spend their time in accommodation other than foster care, and that is a tragedy.

There are many difficulties with foster carers. As I have mentioned in this place before, the minister and the Minister for Education would be well aware of good, solid foster carers. In making these comments, I am not going to reflect on guilt or otherwise, but it can be many years after an alleged offence, when a former foster-child can lay charges, make allegations and put families through hell for at least two years before they even have the opportunity to present themselves in court.

The next place these people go for assistance is to their local member. I am sure other members have probably had examples of that. It is extremely distressing for everyone involved. I reiterate that the care and protection of the children must be foremost in our minds, and we must get that absolutely right. We must also acknowledge that there are many people who, out of the goodness of their hearts, take on the job of looking after children under foster care and then find themselves in one heck of a position.

Yes, I am assuming that some people are found guilty, although I do not have a list of offences in front of me. However, for those who go through the process and are then found innocent, especially in small communities, it is worse than debilitating. People can end up taking their life, and that is not a good outcome for anyone. I stress that the protection and the care of children are paramount, but somehow, when cases like these present, they at least need to be fast-tracked in the court system, if there is such a process, so that guilt or otherwise can be proven in a more timely manner because, as it currently stands, people are left swinging in the breeze and it is a terrible situation.

In saying that, I take my hat off to foster carers, the ones who do the job. It is not without its risks, and it is not without its challenges, as I have indicated, and I commend those who are willing to do it and put their hands up. I repeat that I would not put my hand up because of the risk of allegations down the track, and I have said that in this house before. We will see where this legislation progresses. I will be very interested in the contribution of our shadow minister, the member for Adelaide. As I indicated, we must protect the children, first and foremost, but in doing so we do not want a situation where we are looking after more than 6,000 children in motels.

Ms DIGANCE (Elder) (11:56): I rise today to support the passage of the Children and Young People (Safety) Bill 2017. The bill introduced today comes after the release of the Nyland royal commission report on 5 August last year. This preceded months of careful analysis, the acceptance of a number of recommendations and the drafting of a bill that was tabled late last year. After a full two months of public consultation, the government now introduces a further refined bill. There are a number of key features to this bill, and I will now move to highlight some of them.

Firstly, the priorities and principles for each person or body engaged in the administration, operation or enforcement of the legislation will be reset by placing emphasis on timely and efficient decision-making, the importance of stability with regard to placements and giving adequate consideration to the views of the child or young person, where possible. The bill makes absolutely clear, however, that the paramount consideration is to protect children and young people from harm above all other relevant considerations.

Next, custody and guardianship functions currently undertaken by the Minister for Education and Child Development will instead be undertaken by the Chief Executive of the Department for Child Protection. The current measures of removing and giving temporary guardianship to the chief executive of a child born to an offender found guilty of qualifying offences will be maintained. The bill also reverses the onus of proof in all proceedings before the Youth Court already in the custody and/or guardianship of the chief executive. I note that this does not apply to the Crown or the legal representative of children.

This acknowledges the importance of stability and permanence for children and young people and that all decisions made in the operation of the act will be pursuant to the paramount consideration of the child's safety. The bill ensures that there is express provision of legal representation of children and young people and enshrining in law the obligations of legal representatives acting in this capacity. Regulatory measures related to the provision of out-of-home care by approved carers, foster care agencies and licensed residential facilities have moved from the Family and Community Services Act 1972 into this bill.

The bill also ensures that the provision of information of approved carers is required, and enshrined is their right to participate in the decision-making process undertaken by those charged with applying and enforcing the legislation with respect to a child or young person in their care and that the transition to long-term guardianship orders for approved carers currently known, as Other Person Guardians, is streamlined and the current onus of proof is reversed so that the objector will bear the burden of proof as to their objection. This applies to all proceedings before the Youth Court under the act.

Assistance to persons up to the age of 26 years who are leaving care will include assistance to find accommodation, employment and support services, to name a few. It is provided to ensure a better transition from care into independent living. The bill provides for the minister to establish a community visitors' scheme for children and young people in care. The bill also provides certainty in terms of internal and external review procedures, including the internal review of decisions by the chief executive or child protection officer, the scope of which will be defined by regulations and conferring jurisdiction upon the South Australian Civil and Administrative Tribunal to externally review certain decisions.

Schedule 1 of the bill is unrelated to the royal commission recommendations and this is because South Australia remains the only jurisdiction not to be proclaimed under section 69ZF of the Family Law Act 1975. Before a proclamation can be made, amendments to the Commonwealth Powers (Family Law) Act 1986 (SA) are required to extend the referral of power to the commonwealth for family law purposes. This is needed, as the current referral of power restricts the jurisdiction of family courts where a child is subject to orders under a child welfare law and prevents a family court from making parenting orders or child maintenance orders until the child welfare orders cease.

Sadly, no government anywhere can guarantee that all children will be safe at all times. This is distressing but it is a fact. However, this government believes that this bill will provide the necessary framework to the Department for Child Protection to enable its expert practitioners to do all they can to minimise the harm suffered by children in South Australia. While we cannot change the past, we can certainly shape the future.

Ms SANDERSON (Adelaide) (12:01): I note that I am the lead speaker on this very important bill. I reiterate these words from the member for Enfield's speech:

The Children and Young People (Safety) Bill 2017 is a landmark piece of legislation which repeals the Children's Protection Act 1993 and creates a new child protection framework to implement recommendations made by the Child Protection Systems Royal Commission in its report 'The life they deserve'.

In his ministerial statement, he called it the largest piece of legislation and a landmark piece of legislation, yet it is introduced without notice and without warning. We received a copy of the bill in the chamber only 10 to 15 minutes ago. It is absolutely ridiculous that there would be no briefing for such an important piece of legislation.

The briefing, I believe, is offered to the Leader of the Opposition at 1 o'clock today. That is not very useful when we are expected to debate this in the house. We know that in the past, in relation to the development bill, the government made 300 amendments to its own bill and it went on for days and days. This is a ridiculous way to run a government and it is completely unacceptable.

There was absolutely zero consultation on the final bill. Yes, there was a draft bill for which consultation was open until 27 January, and I did have one briefing on that bill. However, as we have seen from other bills, so many amendments are made that, until you get the final bill, you really cannot comment on what has occurred, what consultation has been listened to and what has happened. There could be another 300 amendments coming, for all I know. This difficulty was noted even in the guardian's response to the draft bill. It said:

Factors that have limited the Guardian's capacity to respond fully—

this was to the draft bill—

include that—

there is no explanatory documentation for the proposed clauses and the policy decisions that support them (with the same applying to matters that have not been carried over to the draft)

…it is not clear what will happen to all elements of the Family and Community Services Act 1972

no framework is available outlining what is likely to be incorporated in regulations or perhaps appear as policy and thereby impact upon the exercise of delegations.

Even the Guardian for Children and Young People noted that there was no reasoning behind the draft bill, there was no explanation for what had been kept from the Children's Protection Act, what had come over from the Family and Community Services Act, why things had been dropped, what had been included from the royal commission and why, and what parts were not included and why.

It is ridiculous that we are given the final bill with no notice and with no explanation. We have had two speeches now from the government that certainly highlighted the reversing of the onus of proof, which is a principle that has definitely changed here. I have already had several lawyers raise that as an area of concern, because that is quite a change to a legal practice that is common in many other bills and other legislation. They are concerned about changing that in just one piece of legislation.

The genital mutilation clauses in the Children's Protection Act have been completely removed and there is definitely great concern around that. There was an opportunity to add in forced child marriages, which has not been included in the act, and I have already called for amendments to be made to insert that. There is no mention of foster care to age 21, which is a policy the Liberal Party has already released to support children properly.

There was mention of support to age 25, but that was around employment and housing, whereas a lot of children need a family environment and their foster carers need financial help to be able to feed them and put a roof over their heads. We know that 30 per cent of foster children who have aged out of foster care are homeless within 12 months, so we know the importance of keeping them in the family as long as possible. We also know from studies that it actually is a cost saving over their lifetime if you give them proper care when they are young.

I will read into Hansard some of the general statements and comments on the draft bill because no-one has seen the final bill in order to make a comment on it. There was a joint media release by SACOSS, the AMA(SA), CAFWA, YACSA and the Council for the Care of Children, which stated:

A key issue of concern is that the draft legislation does not put sufficient emphasis on harm prevention. Despite the government's rhetoric about the importance of prevention, the Bill is effectively limited to responding to harm once identified, and has missed a golden opportunity to mandate provisions aimed at keeping children safe from harm. It also fails to address significant challenges for the state's child protection system, for example regarding specific measures to provide for the safety of Aboriginal children and young people, and their over-representation in the system.

A general comment from YACSA states:

While we accept the Bill won't or can't include all of the elements that we believe are essential to underpin a holistic child protection system, we remain concerned that the government is still steadfastly focused on bolstering the response of a crisis driven system rather than seeking to prevent children and young people experiencing abuse and neglect.

YACSA believes that a fundamental shift in focus is required by government from the existing crisis driven response. This response sits at the tertiary end of a system where the child or young person has already experienced (or is likely to experience) abuse or neglect. Government needs to consider the broader social environment of family and community strength and capacity building, the health and wellbeing of families, and the development of happy and healthy children and young people through the funding of prevention and early intervention services. This focus on prevention and early intervention has the potential to reduce the number of children and young people experiencing abuse and neglect in our communities and demands the same attention as the crisis driven response in legislation, policy, regulations and service planning.

AMA(SA) spokesperson Dr Michael Rice says:

The Government has committed to establishing an Early Intervention Research Directorate. But we need to see action right now. Each reform initiative that does not see prevention as a vital part of the picture is a lost opportunity.

The Chair of the Council for the Care of Children, Simon Schrapel, said:

We have a great opportunity to redefine how we protect children from harm but the legislative funding and system changes have fallen short. A failure to adequately invest in better supporting vulnerable families to care for their children will only result in a further ballooning in the number of children coming into and remaining in state care.

Connecting Foster Carers SA said:

The importance of new legislation cannot be understated. Getting it right from the onset will see carers enjoy legal protection, ensure greater stability, reduce the expense to the system through improved recruitment and retention, and less reliance on residential care services to name a few, and work towards achieving the ultimate goal: the best possible outcomes for children and young people.

Connecting Foster Carers SA has provided comments and proposed changes to areas of the bill in an effort to address, protect and improve carers' rights.

The following areas are of particular importance. Connecting Foster Carers SA seeks the right of the carer to be heard to be absolute, subject to the best interests of the child or young person and not discretionary. It is opposed to any risk of carers being imprisoned for any term whatsoever. It is opposed to any risk of carers being fined for any sum whatsoever, and it proposes amendments to allow for urgent hearings at SACAT, the South Australian Civil and Administrative Tribunal, in relation to matters that arise from the new legislation.

Grandparents for Grandchildren SA said:

As the peak body for grandparents carers in SA and unique within Australia, the volunteer staff and board of Grandparents for Grandchildren SA support the draft Children and Young People (Safety) Bill in principle and welcome its introduction. It also strongly supports the Connecting Foster Carers SA submission in response. That said, the bill falls short of adequately addressing the plight of our sector: grandparents who are unregistered in the system and struggling to care for their grandchildren at risk. Connecting Foster Carers SA quite appropriately advocates for those carers, foster and kinship, registered and therefore approved by the department, thus qualifying for financial and substantive support. Grandparents for Grandchildren SA carers have not necessarily achieved that status but have been informally or formally court sanctioned caring for their grandchildren for many years but without recognition or support. It is a fact that the majority of children in care in South Australia and, in fact, Australia, are in the care of their grandparents. The bill therefore needs to be modified throughout in its wording so that all reference to 'carers' means not only those foster and kinship carers registered with the department, but the vast majority that are neither registered nor even recognised.

The Guardian for Children and Young People's response was quite extensive, so I will not at this point read the whole submission into Hansard; however, I will read parts of it:

Elements of an effective child protection system were described in A Fresh Start, the government's recent response to the Nyland Royal Commission. Prevention will always be the best solution and families must be supported as soon as possible with evidence-based services and programs that are targeted to their needs. These services and programs extend beyond the statutory child protection system into our mainstream health, education and other wellbeing services. Noting this strategic context, the draft bill appears to do three things: it updates the Children's Protection Act 1993, adds some elements from the Family and Community Services Act 1972, and enables a number of new initiatives that respond to the Nyland Royal Commission recommendations. As such, while not a thorough revisioning of child protection, it should underpin incremental improvements to the existing system.

I have already noted that there was mention of factors that limited the guardian's capacity to respond fully, in that there was no explanatory documentation for the proposed clauses and the policy decisions that support them. It was not clear what will happen to the rest of the Family and Community Services Act. There was no framework available outlining what is likely to be incorporated in the regulations or perhaps appear as policy, thereby impacting upon the exercise of delegations.

There were areas that were specifically mentioned again by the Guardian for Children and Young People. Unfortunately, breakdowns in critical areas of the child protection system have been tolerated, which raises the questions: how do we know they will not recur? Does the bill provide aggrieved children and young people with adequate recourse to grievance procedures should this happen? Does it avail potential sanctions to help reinforce the accountability of those responsible for resourcing and managing the system?

One of the issues that was repeated many times by people and stakeholders in the industry was that simply transferring pieces of legislation from the existing Children's Protection Act into this new child safety act, when they were being ignored and not used previously, does not mean that they will be upheld just because the name of the legislation has been changed. What else has been put in place to ensure that if it states that there must be an annual review there will be an annual review and that if it states that there must be a case and care plan that there will be a care plan? We know that there has not been one.

In the recent Productivity Commission's report on government services, many statistics were not shown. From what I am hearing, the reason that the figures are not given is that they are so bad that the department does not want them reported. We have had the Auditor-General's damning reports into how many children do not have a caseworker and how many children do not have annual reviews. Simply putting in a requirement for an annual review in a new bill from an old bill does not make children any safer, but we can only hope.

I have had the bill for less than an hour, and I have been in the chamber and so I have been unable to read it. When I have time to read the bill, I will be able to check it and make further comments during the committee stage. The Guardian for Children and Young People also stated that other matters need clarification. Some changes included in or absent from the draft bill will be included in the regulations. Others may not be carried over from previous legislation for policy or other reasons. The absence of explanatory notes for the draft bill means that the reasons are not transparent. The provision of properly informed feedback is therefore difficult in relation to some matters.

Other issues listed by the Guardian for Children and Young People include further matters requiring more consideration based on the draft bill. Of course, I have no idea if this has been listened to and acted upon or if it has been simply ignored. They include 'Protection from liability for voluntary or mandatory modification'. From the draft bill, section 12 of the Children's Protection Act was absent. It also includes 'Confidentiality in relation to notifications of abuse or neglect'. Clause 151 referenced the treatment of a notifier. Section 13 of the Children's Protection Act has been omitted.

In terms of the return-to-home requirement in clause 33 (the numbers have changed in the final bill, so these will not align), the standard of the best interests of the child to the bill's standard is that the child or young person 'be at risk'. In terms of 'Custody of removed child or young person', clause 34 sets a new limit of five working days for the required return home without any reason for the number of days nominated. I note that one lawyer, who works extensively in this area, stated that that is just too long, that lawyers are ready.

There are several lawyers who represent children and families at the last minute. I said, 'Surely, having a bit more time for you to present your case would be of benefit to the parent.' I was assured that it was not, that the existing time period, which I think is 48 hours, was enough because they do this regularly, that they know what they are doing and it is important for the child and the parent that this is dealt with swiftly and that they did not want the children to be held in temporary accommodation, particularly if it is emergency motel accommodation. They wanted this to be swiftly dealt with.

As the guardian has mentioned, no reason was given as to why that was extended out to five days. The investigatory requirement (clause 29(3)): the detail in section 19 of the Children's Protection Act is not carried over to the draft bill, which simply refers to the fact that regulations may make further provisions in relation to an investigation under this section. Compulsory investigation, examination or assessment measures: the implications of the bill's proposed arrangements are difficult to compare to the equivalents in the Children's Protection Act.

Persons or class of persons who/that may be exempted by regulation from the operation of a specified provision or provisions of this act: insufficient detail has been provided. Several others are listed, but I am sure the government has seen them, so it will just be a matter of what has been listened to and what has not, because there are no explanatory notes with the bill that say what amendments were made, why they were made and on what it was based.

Now I will read the proposals that were not supported by the guardian, and they include aspects of referral of notifications to a state authority. Whilst acknowledging the constructive intent of clause 28, the proposed section 28(7), 'Capacity for the chief executive to give directions or guidance in relation to a matter to the state authority to which the matter is referred' is not supported as currently constructed. It is not appropriate for the chief executive to give direction to an independent statutory officer, such as the guardian, who is nominated as a state authority in the draft bill, as this conflicts with the guardian's independent statutory role.

The minister currently does not have an equivalent power with the Children's Protection Act, stating that, in section 52AB(2):

The Minister cannot control how the Guardian is to exercise the Guardian's statutory functions and powers and cannot give any direction with respect to the content of any report prepared by the Guardian.

Incompatibility of the proposed section 28(7) with existing legislation is reinforced by section 21(2) of the Children and Young People (Oversight and Advocacy Bodies) Act of 2016, which guarantees that:

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

The relevant clause in the draft bill therefore should exclude the capacity of the chief executive to direct an independent statutory officer. The capacity should be to request such assistance. The guardian was also concerned about the removal of the child safe environment provisions. However, I note that that has been put back in, so it is good that the government has listened on that point. I need to go through and make sure it is exactly the same, but it appears that it has been included.

Other areas of concern to the Guardian for Children and Young People include the removal of female genital mutilation as a child abuse issue. Sections 26A and 26B of the Children's Protection Act 1993 do not carry over to the draft bill, which removes female genital mutilation (FGM) as a matter warranting explicit attention as a form of child abuse. The guardian urges that FGM provisions be retained to maintain a focus on this unacceptable practice within the child protection sector, in accordance with relevant international and national standards, not the least of which is the international Convention on the Rights of the Child.

This should happen irrespective of the prescription of FGM in other legislation. Mirrored coverage applies to other matters in the draft bill, an example being the cross coverage of section 79—Unlawful taking of child or young person, with parallel provisions in the Criminal Law Consolidation Act 1935.

Comments of note mentioned by the guardian were actually from children, given that the voice of the children is an important part that was mentioned in the Nyland royal commission, that they must be heard. Things that the children felt were important to have in this bill, and suggestions for amendments, were as follows: call the children's helpline; talk to someone who could make a difference; more resources; siblings to remain together; friends over; more family contact; equal; where am I going?; will I see my parents again?; support ; empathy; love; and education.

As you can see, a lot of effort has gone into the draft bill by a lot of people, yet the final bill has not been given to any of these same stakeholders for them to make final comment, which I think is a definite flaw in our democratic system because this is an extremely important piece of legislation. We had the opportunity to work in a bipartisan manner had we been briefed on, or even given, the bill.

I found out about this bill being introduced this week on the radio yesterday, and then at 10.15 this morning a staffer from minister Rau's office came to tell me that not only would standing orders be suspended so that this could be introduced, but it would actually be debated immediately, and I had not even seen it. I rang parliamentary counsel, and at 10.55am I was told that three minutes earlier it went up on the portal; however, it was a different copy from the one that has been tabled in parliament. I do not know if the one that I have been given in parliament is the correct and latest version, so it sounds like there are still changes being made. It is just ridiculous that I should be expected to finalise my comments on a bill that I have never seen before, that I have not had time to read and that has had no third party consultation at all.

To go through Anglicare's feedback, which I have not mentioned yet, they had quite a lot of changes that they wanted, and they presented theirs in a table, which is a much easier format. It would have been handy if the government had presented a table with the new bill that said this proposed section replaces section whatever from the Children's Protection Act, or this is from the families and communities act, or this is from the Nyland royal commission because then we could have all understood exactly what was going on, where it came from, what was the whole point of it, and we could actually debate and get proper legislation.

As much as I am unhappy about the process, I am certain that the government wants to protect our children—and we do, too—so why are we not working together? Giving no notice is completely disrespectful and not how you get somebody to work with you in the best interests of children. Other stakeholders who have read this bill have made the comment that the draft bill was more of a butt-covering exercise and more about protecting the government and the minister rather than protecting the children. I do not know if that has been changed in the final bill, but I will read it with great excitement later today when I have time.

Referring to Anglicare's submission, AnglicareSA welcomes the state government's proposed Children and Young People (Safety) Bill 2016 (which will now be 2017) and believes it will make a significant contribution to improving the quality of care and outcomes for children and young people in care. In particular, we commend the government on its commitment to amplifying the voice and views of the child or the young person, embedding timely and early decision-making processes to support stability and permanency, prioritising family based placements as a preferred option of care, and increasing the ability for foster carers to be involved in the daily decision-making.

Anglicare strongly supports sections 4A and 4B—the duty to safeguard and promote the welfare of the children and young people—which demonstrates a whole-of-government commitment to the protection and wellbeing of children and young people and their contribution to strong communities and a thriving state. Anglicare's feedback reflects our experience in child protection and organisational expertise with working with vulnerable families, children and young people across South Australia.

In reference to part 2, clause 6, Anglicare welcomes the inclusion of the paramount consideration guiding the administration, operation and enforcement of the act. This affirms the government's intent to translate the bill's intent into quality practice and implementation. However, they are concerned about this clause, which provides:

The paramount consideration in the administration, operation and enforcement of this act must always be to ensure that children and young people are so far as reasonably practicable protected from harm.

The recommendation is to delete 'as far as reasonably practicable'. There are definition issues. In part 3, clause 8(1)(b) the recommendation is to include provision for the Commissioner for Children and Young People to represent children and young people in care to express their views, including children and young people who are at risk or not yet on an order.

Also in part 3 clause 8(1)(c), the recommendation is to reference the placement of children in care with a disability to the Disability Discrimination Act and potentially the national disability standards. Again, in the same clause, the recommendation by Anglicare is for the proposed Children and Young People (Safety) Bill to adopt the culturally and linguistically diverse (CALD) placement principle in line with the Aboriginal placement principle. Culture is mentioned many times but we are a multicultural society now and there are many cultures and religions and disabilities, as mentioned in this recommendation, that also need to be taken into account when placing our most vulnerable children. The recommendation is to reword clause 10, part 2, consistently with clause 10(3)(b) to include:

Maintaining the connection of Aboriginal or Torres Strait Islander children and young people with their community or communities, family and culture.

There is also a recommendation to adopt the commonwealth definition of 'Aboriginality'. There is a further recommendation to include a commitment to a statutory body assessing the risk threshold of all notifications for consistent assessment and responses. There is a recommendation to delete chapter 4, part 2, clause 23, and replace it with a provision for statements made during family group conferences to be admissible in court. I have heard from many people who are against that idea.

The idea of a family group conferencing meeting is that it should be used early on to stop the child from being removed in the first place and that members of the family—and perhaps a schoolteacher or their local priest if they go to church—can get together and speak frankly about what is going on and how they can help and support the child to not have to be removed from the—

Members interjecting:

The DEPUTY SPEAKER: Order!

Ms SANDERSON: —parents in the first place. The thought of that being admissible in court would stop people from being able to speak frankly. Whilst that is an Anglicare recommendation, I have also had a counterview from other people regarding that recommendation. There is a recommendation to define 'serious harm' and 'no reasonable practical alternatives', to develop operational guidelines with clear definitions and parameters to guide practice and implementation, and to provide resourced alternatives to a child's removal, including an obligation and resourcing for practitioners to put safeguards in the home when there are no options for removal.

A further recommendation is to consider retaining guardianship responsibility with the minister. For the children who have been removed, that could be quite an important change. Whilst I see that it is in keeping with what has happened in all the other states, I had a very emotional meeting with a lady who was here for a child protection rally. She had been, back in the day, a ward of the state—which is what they were called—and she is in her 30s now. She told me that when she left care at age 18, she had nobody. She had no family at all and the only adult in her life was her case worker who she did not particularly like but who was the only person she had.

The only highlight of her childhood was meeting the minister. She told me all about the one time she met the minister and how big an effect that had on her. In taking out the minister as the guardian, my concern is: is it that exciting to meet the CEO? I do not know.

I was really looking forward to someday being the minister—the guardian for these 3,300 children—so I see it as sad to lose that responsibility because ultimately, as the representative elected and the minister appointed, it is truly a great honour to be the guardian for these children. I can see the risks involved and I can see the other states have moved away from this, but I also see it as sad for the children to no longer have a minister who is their guardian.

There are also recommendations from Anglicare to remove charging fees for foster carer applications from the bill and to develop operational guidelines articulating how this will be monitored and enforced. I would have to agree about charging foster carers when we have such a shortage and we are trying to encourage, develop and nurture those relationships.

The last thing we want is to charge them for doing us a huge favour. They are volunteering their life, their time and now, under this new bill, putting themselves at considerable risk of imprisonment and fines. They do that great job on our behalf and with our most vulnerable and sometimes most difficult and challenging children, yet we also want to charge them for the privilege. I have to question that, although I have not seen the final bill to know whether that provision is in it.

Another recommendation by Anglicare is to revise the penalties to reflect the intent and objective of the bill. For example, the maximum penalty in the 1993 Children's Protection Act was $10,000, which could be adjusted to reflect inflation; $50,000 appears excessive and could be a hindrance to implementing the bill as intended. Further recommendations include for the bill to define 'placement agency' and include provisions for the Department for Child Protection to be responsible for prescribing and releasing the child or young person's information to foster care agencies or relevant intermediaries for disclosure to carers.

Further recommendations are for the bill to define 'placement agency' and for the Department for Child Protection to be responsible for prescribing and releasing information—this sounds very similar to the last recommendation, but it is different—to foster care agencies or relevant intermediaries for disclosure to carers. This relates to a different part of the act. A further recommendation is to define the least preferred option and the level of accountability in evidence needed to demonstrate this.

We know we are now defining that the guardianship of the minister or the CE is the least preferred option. However, the concern is that children may be left in more dangerous situations than they are now because there is no exact definition of exactly what that means. The safety of the child must always override that, of course, but Anglicare wants more information around that and a definition of exactly what that means. We do not want the pendulum swinging back too far.

We seem to go from one to another. There was a focus on keeping children together, so children were left in danger, but now some people might say too many are removed. We do not know. I know it is very difficult. As the shadow minister, I have over 100 cases ongoing in my office, and I can see the difficulty and complexity. It is not like I can read one and say, 'It has been handled 100 per cent completely wrongly.' I can see that there are always two sides to a story and that I do not always have all the information, but having definitions makes it a little bit clearer as to what that exactly means.

Another recommendation is to reconsider the definition of a foster carer agency as an agency that identifies, recruits, trains, recommends and supports foster carers and foster care placements. There is a recommendation that the bill specify the frequency of regular assessments, together with guidelines for foster care assessments. I read something about the CE requiring them to be done every 12 months, but I am not sure if that was for this section.

The final recommendation by Anglicare is to legislate the opportunity for all young people in care to have the option to, firstly, stay in or return to family-based care or supported independent living arrangements with access to the standard supports until they are 21 and, secondly, access ongoing support such as housing, financial, education, training, legal, etc., until the age of 26. I mentioned earlier that a Liberal Party policy is to have foster care to the age of 21 as the reports show not only are there better outcomes for the child emotionally, financially and education-wise but also our whole society is better off to have children who are not homeless and who end up in our juvenile justice system.

As the shadow minister for social housing, I was at a housing forum a few years ago. I was shocked to hear that a survey they did of people sleeping rough in South Australia showed that 30 per cent of those people had been in prison; prior to that they had been in juvenile justice and prior to that they had been under the guardianship of the minister.

We know where the children go and we know what happens to them. Kicking children out of home at 18 is not the done thing for normal families anymore. Years ago, people might have been married at 16, 17 or 18, but not anymore. We have high unemployment and jobs are hard to get. Children who are not working or studying need help, and they need foster care to be available until the age of 21 so that they can have a better start to life. Even though that requires funding, I think in the long term it is definitely the best thing for everybody—the child as well as the community.

I will now summarise some of the feedback, chapter by chapter. Of course, given that I have not seen the final bill and we are expected to debate it immediately, in order to allow time for other members of the opposition to speak, I will continue my remarks. In chapter 1, the changes were mainly from the Guardian for Children and Young People, and I have already read most of those comments into Hansard. In chapter 2, the changes mentioned were by YACSA to start with. YACSA states:

The prevention of abuse and neglect experienced by children and young people is paramount and legislation that provides an instrument to guide a government response to prevention and early intervention, as well as processes and services to prevent children and young people experiencing further harm is vital. Disappointingly, this Bill only seeks to respond to children and young people at immediate risk of abuse and neglect or those who have already experienced harm.

In order to prevent child abuse and neglect, government must focus on providing intervention services and programs that seek to strengthen all families, particularly those who may be the most vulnerable. We believe that the Bill requires a greater emphasis on prevention and early intervention to better align with the 'Child Protection: a Fresh Start' report (page 2) which describes the importance of early intervention and family supports as integral to preventing abuse and neglect. If prevention and early intervention—as a foundation of the child protection system—is not captured in this legislation, it will be unlikely that the new system will deliver improvements for children and young people who have experienced harm or are at risk of experiencing harm.

CAFWA-SA has comments on chapter 2. They state:

The fundamental objective for the reform of the state's child protection system must be to assist families to provide safe and nurturing environments for their children, and to have the necessary services and supports activated (secondary and tertiary prevention) before a family reaches crisis point.

In reference to the United Nations Convention on the Rights of the Child, CAFWA-SA states:

As Australia is a state signatory to the UNCRC and has ratified it as an instrument of international human rights law, CAFWA-SA suggests that all Australian jurisdictions, wherever possible, articulate in statute law its commitment to the principles and articles of the Convention. CAFWA-SA calls for a preamble to the Bill that references the UNCRC and which commits the government to uphold the relevant provisions therein.

With respect to part 3, YACSA makes the comment that:

While the government response to the Nyland report commits to putting children and young people at the centre of the child protection system and ensuring that they can participate and influence the decisions that affect them, this is not spelled out within the legislation. The legislation instead includes the intent of article 21 of the UN Convention of the Rights of a Child as a 'Principle of Intervention'. (Part 3, section 8 (1)(b) stating that a child or young person should be given the opportunity to express their own views 'on the matter that concerns their care' if the child or young person 'is able to form their own views on the matter'. YACSA is concerned that this provision is open to interpretation and has the potential to exclude the opinions, needs and participation of children and young people.

YACSA would like to see a stronger and less passive commitment to the engagement of children and young people within the Bill and in the child protection system in general. This demonstrates that we view children and young people as valued citizen's and as the experts in their own lives as well as fulfilling our international obligations to uphold the rights of children and young people.

YACSA advocates strongly for the participation of children and young people in the child protection system to be regular and meaningful and that their views, opinions and needs are given due weight to inform and influence their care. Providing the policy and service environment in which children and young people are expected to participate in the decisions that affect them will lead to both improved services and better individual outcomes.

Also commenting on part 3, chapter 2, part 3, clause 8(1)(c), Connecting Foster Carers supports the inclusion of the principles of intervention, in particular that account should be taken of those persons 'in whose care children and young people have been placed'. CFC-SA accepts that this would include foster and kinship carers.

With respect to chapter 2, part 3, clause 9, Connecting Foster Carers SA supports the inclusion of the placement principles, in particular the inclusion of a stable and secure environment, and that the existing relationship is considered of importance. However, CFC-SA would like to see clause 9(1)(b) amended to read 'approved carers are entitled to be, and must in so far as it is practicable to be, involved in decision-making relating to children and young people in their care'. It has also advocated and continues to advocate that, in many cases, the strongest relationship a child or young person has in care is with their carer.

Connecting Foster Carers believes that, if the government wants to recruit and retain volunteer carers to care for highly vulnerable and damaged children in secure, stable and inexpensive home-based care, then the government must protect and empower carers for the benefit of the children for whom they care. CAFWA makes further comments in relation to part 3, clause 10, stating:

CAFWA-SA supports the inclusion of an Aboriginal Child Placement Principle in the Bill, however calls for the current inclusion to be strengthened significantly. The provisions must be more robust and provide a greater level of accountability to the Department for Child Protection to ensure that Aboriginal children maintain close connections with family and culture wherever possible, and that all efforts are made to retain contact with kin. The provisions made in the Bill don't necessarily need to provide for a prioritised system of placement types or outcomes, as it should be the role of the delegated, Gazetted Aboriginal organization to ensure that case-by-case decisions are made in the best interests of the child in question. A provision for a delegated, gazetted Aboriginal organization to be involved in all placement decisions of Aboriginal children must be made.

Chapter Two of the bill (Guiding Principle) refers only to Aboriginal culture in the context of removal and placement of children, and must be strengthened to include principles for working with Aboriginal children, young people, families and communities in a preventative manner.

These principles must reflect how the department for child protection and the chief executive as legal guardian, will engage and work alongside aboriginal people and communities to strengthen family and community functioning, such that the removal of children is reduced. this engagement of gazetted aboriginal organisations will be critical for ensuring the success of this work.

The guardian also commented on part 3 and part 4, which I have already read into Hansard.

Chapter 3 relates to the feedback from Connecting Foster Carers. In relation to clause 12, they welcome the inclusion of the definition of 'approved carers' in the bill. The definition of 'family' is cause for some confusion, however, and arguably could extend to include carers. If it is not the intention of the bill to include 'approved carers' in the definition of 'family', it should expressly exclude them to avoid any such confusion.

In relation to clause 13, Connecting Foster Carers welcomes the extension of the meaning of 'harm' to include mental and emotional abuse. This clause highlights the need to genuinely support carers in the provision of long-term, stable, permanent, family-based care to achieve the best possible outcomes for children and young people. Carers are supporting the most vulnerable children and young people in this state to address emotional, social, behavioural and educational needs and will benefit greatly from various support initiatives aimed towards sustaining their caring responsibilities and connecting with other carers.

The guardian has comments on these areas, as well as CAFWA, in relation to clause 14, part 1(e). In close consultation with CREATE Foundation in South Australia, CAFWA-SA has noted in chapter 3—Interpretation, that a child or young person is identified as anyone under the age of 18, but when defining the meaning of 'at risk' in chapter 3, clause 14(1), the bill states:

For the purposes of this act, the child or young person will be taken to be at risk if:

(e) the child or young person is under 15 years of age, and is of no fixed address.

CAFWA-SA and CREATE agree that, for the purposes of consistent definition interpretation, a child or young person should be deemed to be at risk up to the age of 18.

The feedback received from CAFWA in relation to clause 14, child and family assessment and referrals network, states:

1. Refocusing on the government's additional commitment of $432 million over four years to deliver enhanced early intervention and dedicated family support services through the reallocation of a further $50 million over four years into a new early intervention services fund. This could be achieved in part by diverting funding away from the Early Intervention Research Directorate, which is a function that could be performed by the Australian Centre for Child Protection in partnership with government, and other research institutions.

2. Expanding the proposed pilot child and family assessment and referral networks to four locations incorporating one dedicated regional network, and ensuring that three of the four networks are run by respected non-government agencies in nominated regions.

3. Including non-government agencies involved in child and family welfare interventions as an integral member of the expanded child protection and family pathways which effectively operates as a front end of the child protection system.

4. Committing to incorporate early intervention and prevention provisions and statutory obligations in the Children and Young People (Safety) Bill, or to ensuring these provisions are included in a revised Family and Community Services Act.

Connecting Foster Carers welcomes the inclusion of persons who have a close association with the child or young person to be entitled to attend family group conferences. However, CFC would like the clause to extend beyond those who should attend, in the opinion of the coordinator, to expressly include carers who have had the child or young person in their care for some time. CFC believes that approved carers who have had the care of the child for some time should have the absolute right to attend family group conferences.

Carers are often best able to speak on matters that may have an impact on the child or young person in their care because they spend significantly more time with the child or young person than any other person in the child protection system. They witness the real-life consequences that decisions made by the court, the department and agencies have on the child or young person. The definition of 'family' may cause some confusion in this section of the bill, as mentioned earlier. Also, the carers are trained and required to comply with all relevant policies and directives prescribed under legislation, regulations, directives, policies, procedures and mandates of the department and any such delegates.

Clause 20 relates to Connecting Foster Carers. Again, the definition of 'family' may cause some confusion around the bill. Regarding clause 22, based on experience, it is not uncommon for an agreement to be reached about an action to be taken by the department, but there is no follow-through and nothing happens. It would seem to be equitable for there to be a remedy against the department as well as against other parties to the family group conference. That was feedback by a carer.

There are more CAFWA recommendations on clause 23, part 1:

With specific reference to section 23, part 1, CAFWA is concerned about the provision that evidence of statement made at a family group conference is not admissible in any proceedings. Whilst we understand that written records of decisions made at family group conferences will continue to be admissible in proceedings, we are concerned that certain important information or insights that may not be included in a written record of decisions will not come before the court, where in fact such information may be crucial in ascertaining what would be in the best interests of the child in question.

There are obviously many different views on different issues.

As to case planning, CREATE and CAFWA noted that chapter 4, part 3, deals with case planning issues and the content of case plans. However, clause 25, part 2, of the bill provides that 'a case plan does not create legally enforceable rights or obligations on the part of the chief executive, the Crown, the child or young person, or any other person'. We strongly support a greater level of accountability being provided in the act for the department's obligation to ensure that case planning and case reviews occur in conjunction with the child or young person where appropriate, and that case reviews take place at least on an annual basis.

Regarding chapter 5, CFC feedback, carers are considered to be mandatory reporters and must undertake relevant courses. Rather than relying on the regulations, it would seem logical to cover them in the law. Regarding part 1, clause 27(2)(a), reporting suspicions of abuse and neglect, CAFWA is concerned about the provision that:

'a person need not report a suspicion under section 1 if the person believes on reasonable grounds that another person has reported the matter in accordance with that subsection'. Whilst CAFWA understands that there is an impetus to reduce the overall number of unsubstantiated reports being made to the statutory agency, this particular provision may well result in people abrogating their responsibility to a court where they believe without substantive evidence that another person has made such a report. Further consideration needs to be given to provision and the potential implication that situations of abuse and neglect go unreported.

I seek leave to conclude my remarks later.

Leave granted; debate adjourned.

Sitting suspended from 12:58 to 14:00.

PARLIAMENTARY BUSINESS
MEMBERS
GET INVOLVED
ABOUT PARLIAMENT
VISIT
LEGISLATIVE COUNCIL
HOUSE OF ASSEMBLY
CONTACT