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House of Assembly - Fifty-Third Parliament, Second Session (53-2)
2015-06-02 Daily Xml
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Bills

Children's Protection (Implementation of Coroner's Recommendations) Amendment Bill

Second Reading

Adjourned debate on second reading (resumed on motion).

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (15:49): I consider it quite a privilege to have been the lead speaker in this matter on behalf of the opposition, because one of the important responsibilities for any parliament is to ensure that our most vulnerable are protected. My greatest concern about this bill is that it has been introduced following the flood of embarrassment that this government has had to face as a result of a penetrating and very important report by the State Coroner.

It may have been embarrassed into action and that in itself is not a bad thing. My concern, however, is that they did so without consultation and that they do so without even awaiting the response from Margaret Nyland QC, the former judge who has been appointed in the latest and third royal commission on children—in this case, children's protection systems. Why is this particularly concerning, apart from there being a history of a number of reviews and reports? This is particularly concerning because the government has seen fit to consult on other areas of reform, including the reform as to who should comprise the judiciary in the Youth Court.

The Youth Court, of course, is an arm of the District Court and is led by a District Court judge. Additionally, the judicial officers are supported by magistrates in two areas of law. One is child protection and one, of course, is the criminal cases in relation to children. That bill proceeded with reform and was passed through this house and I am uncertain as to its passage through the other place. I do not make comment on the substance of the bill today. I simply make the point that the government saw fit to consult with the royal commissioner, Ms Nyland, on that issue and also on another act that they sought to amend recently in respect of children's matters.

It does concern me that, on an area specifically relating to the protection of children arising out of this Coroner's inquest and the findings thereon, the government has not sought even an interim report or consideration by the royal commissioner. It is such an important area of law reform. It is without consultation with those who would normally have a stake in reform in this area or the public and, therefore, the one person who would assist the parliament in considering these reforms, it seems to me, would be the royal commissioner.

The second person who, I would have thought, ought to have been consulted at least to identify whether the reforms proposed in this bill do meet with the recommendations of the Coroner is the Coroner himself. Why would it not be appropriate to put a copy of this bill to the Coroner and obtain his view as to whether he is satisfied that this complies with the recommendations that the government say they are undertaking?

I would have thought that was a fairly simple exercise and that the parliament ought to have that information before us and, furthermore, ought to consider that advice. After all the government have said, 'We're introducing this bill in response to the recommendations.' Surely, if they are genuine and bona fide in that regard, they would also have with that either a letter from the Coroner or an indication that he had been consulted and that that is satisfactory.

Why have they not done that? My guess is this: he has made a number of recommendations and, whilst he might even agree with the tenor or flavour of what has been presented in this bill, I would be very sure that he would be concerned about the government's lack of action in dealing with other parts of the enforcement that he has recommended, in particular in respect of section 20(2). I would also be quite confident in thinking that he too might be concerned about the ravaging of the objectives and principles of the act, which has been a direct consequence of them forcing this matter into the parliament in a hurry. So, I for one would be keen to hear his view, too, as to what is missing and what should be improved in respect of the reforms in this bill.

With that, I can count and confirm that we are satisfied that the government will win the ballot in relation to this bill passing through this house. It is not the opposition's objective to in fact hold up reform that will help to protect children. Indeed, we will support the government in initiatives that work. At this stage, they have not demonstrated that the principal area of reform here will work, and we are concerned about the construct and presentation of the reforms in respect of definition within the act as to harm and cumulative harm. That is the position from the opposition's point of view. Let's have some serious consideration of this from the stakeholders and, in the absence of there being any evidence of high need for the urgency of the progress of this matter, that matter should be delayed.

I confirm that we will object to the repeal of section 4 in the vote on this. During the course of the balance of the debate, I will read through carefully the amendments that have been tabled and, if they are on the face of it an improvement, they will not have any objection from the opposition.

Ms SANDERSON (Adelaide) (15:57): I rise also to speak on the Children's Protection (Implementation of the Coroner's Recommendations) Amendment Bill. The government's approach to the Coroner's recommendations on the Inquest into the Death of Chloe Valentine have been vastly inconsistent. On the one hand, they have advised all recommendations have been referred to the Royal Commission into Child Protection Systems as per the State Coroner's request; however, they are only waiting on the report on recommendation 22.13 to consider adoption as an alternative placement option.

They have now introduced this current bill to parliament for debate, which includes recommendation 22.11. This amends the act to include cumulative harm as a relevant factor in making decisions about the care of a child, and of course I would be very supportive of this change. However, this was recommended back in the 'house of horrors' case, discovered in 2008. So, now in 2015, yet another child has died and the government is only just now considering this change. Any person off the street would know that being safe at a point in time, especially for a pre-arranged home visit, does not mean that a child is safe and that, obviously, the history of the case should always have been considered, so it is disappointing that this needs to be put into legislation and that it was not done earlier.

As we know, putting something into legislation does not even mean it will be used, so it is imperative that the minister, through her department, enforces this, unlike section 20(2) with the drug testing that was not used at all, even though it existed in legislation. So, whilst I welcome cumulative harm being added, it is disappointing that we would even need that. It should have been in the policy and it should have been implemented many, many years ago. It is 13 years since this government has been in power and it is 13 years too late.

Recommendation 22.12 amends the objects of the act to ensure the paramount consideration is to keep children safe from harm, and again, anyone off the street would have assumed that the Children's Protection Act was entirely about making the child the most paramount person in any situation. Again, it is quite ridiculous that we have to legislate for this. It should be part of the policy; and, if it was to be legislated for again it should have been done 13 years ago after the first Layton report. The whole point is to keep children safe from harm; so, of course, I do support that albeit 13 years too late. Recommendation 22.2 that amends the act to include the provision:

...that a child born to a person who has a conviction in respect of a child previously born to them for manslaughter by criminal neglect, manslaughter or murder will, by force of the Act, be placed from birth under the custody of the Minister.

This is as Mark Johns, the Coroner, recommended. However, the government has actually expanded this recommendation to include endangering life and causing or creating risk of serious harm.

It was also expanded to capture any convictions for an attempt to commit the preceding offences. The government admittedly does not know how such legislative changes would be implemented or regulated. It suggests that it is similar to legislation that has been passed in New Zealand, but that legislation has not even commenced as a way for us to see how this would be implemented or policed or work in any way, shape or form.

The government is happy to sit tight and wait for the royal commission report on some of the handpicked matters yet is rushing this recommendation through without adequate consideration of the actual effect and the changes. It will be four years before Ashley Polkinghorne or her ex-partner leave prison, so there is no particular urgency to rush this through without proper consideration.

We are here to debate this bill yet the government is completely unprepared to actually identify the regulations and practices to enforce the new provisions. Why wait for a report from the royal commission on one matter but not others? Why introduce something you are completely ill-prepared for? Why introduce laws similar to other jurisdictions without adequate consideration of their effect or witnessing their implementation?

There are a lot of 'whys' here in regard to the government's actions. How will it police this? What about people who change their name or move interstate to have children? What about men who subsequently meet a new partner who has existing children? How will they find them? How will they police this? In the briefing the government was unable to give us any answers. I think it is a very hasty kneejerk reaction to the Chloe Valentine inquest after having 12 years since the Layton report to do something about this very important issue.

The government has not gone out to consultation on this current bill, it has merely reacted to media attention and public outcry for change. While I strongly believe in the need for urgent change and the complete overhaul of our child protection system, the government's approach to the introduction of this bill is questionable. The hasty introduction and subsequent removal of section 4 of the Children's Protection Act has also attracted critical media attention.

InDaily has continued criticisms of Families SA, such as on 11 May 2015 when it stated 'Ignores 10,000 notifications a year'. Now that 10,000 notifications is a lot of cumulative harm that is being missed. Also, on the same day InDaily stated, '...the bill is undermining international law by undermining our commitment to the UN Convention of the Rights of the Child by removing section 4' and the following day on 12 May 2015, 'and South Australia's poor performance on child protection'.

Given that the government is yet to consult with major stakeholders, I have begun the process of seeking feedback on this current bill and approach which the government has taken. I have sought feedback from Anglicare SA, Save the Children, Centacare, the Child and Family Welfare Association of South Australia, Connecting Foster Carers, Life Without Barriers and the Guardian for Children and Young People. I note also that the member for Bragg had already contacted the Law Society and the Bar Association of South Australia along with several others.

I am curious to understand their positions on the proposed changes given that it will likely affect their operations. The government has had 13 years of opportunity to introduce change in the shambles of a child protection system. It started with the Layton review of child protection in South Australia, which delivered a report in 2003. Among other things this report urgently called for a commissioner of children and young people—something the government only took the liberty of investigating some 11 years later and we still do not have a result.

The Layton report was then followed by not one but two Mullighan inquiries in which both reports were handed down in 2008 after he was appointed in 2004. One was the Children in State Care Commission of Inquiry and the second was the Children on APY Lands Commission of Inquiry. Next, we had a select committee on Families SA, appointed in 2007, and a report that was delivered in 2009. Then we had the Debelle inquiry, which was an independent education inquiry. The report was delivered in 2013.

Following this, we had the Select Committee on Matters Relating to the Independent Education Inquiry, and now we have the Statutory Child Protection and Care in South Australia select committee, appointed last year, with a report due later this year. Last year we saw the implementation of South Australia's Adoption Act review, which has been carried out by Associate Professor Lorna Hallahan, with a report due on 30 September this year.

Last but definitely not least, we currently have former Supreme Court Justice Margaret Nyland QC carrying out the Royal Commission into Child Protection Systems. This is an exhaustive list, and it is eight major inquiries into many different aspects of our child protection system, yet we are yet to see any real change. Each and every one of these inquiries were damning of the government in their own right.

The government gives the excuse of cost for not agreeing to the Liberals' model for a commissioner for children that is independent of government and that has investigative powers. How much money has the government spent on all of these reviews and royal commissions and how many children's lives have been lost because of their inaction? Perhaps a children's commissioner 11 years ago would have stopped many deaths, which is immeasurable in its value to the community.

On top of all of these government reviews and royal commissions, they have also had reports and recommendations from the state Coroner on an annual basis, the Public Advocate, the Child Death and Serious Injury Review Committee, the Council for the Care of Children, and over 100 reports and publications produced by the Guardian for Children and Young People, in addition to her annual reports. We also have the Australian Institute of Child Protection Studies and multiple research facilities preparing endless reports on how the system should be improved, yet nothing has been done.

We have not seen any adequately thought-out change to our child protection system after all of these knowledgeable people have provided it to the government in plain and simple terms. It is appalling that we have had to wait for the death of an innocent child and an inquest into her death for the government to get moving, but they still have not learnt. They are still not implementing adequate change, just having knee-jerk reactions. After 13 long years of this Labor government, they are still delaying the introduction of a children's commissioner. This time they are waiting on the report from Commissioner Margaret Nyland, yet in this case they are happy to rush through these other recommendations without any idea of their practical implementation.

The government's own response to the Layton report was: 'Our key agency responsible for child protection lost capacity when it was subsumed into the Department of Human Services and lost its way.' Using the government's own words, our current child protection agency is now subsumed by the education department, which has had enough issues of its own, which prompted the Debelle inquiry. They are also delaying the recommendation of adoption being considered as a practical placement alternative to wait on the royal commission report. Again I say that they are hastily rushing through these recommendations and, by their own admission, they do not know how they will practically implement such changes. It is quite puzzling to work out the thought process of the current government. I can only assume that it is politically motivated rather than having the best interests of all South Australians in mind.

The bill raises one of the major issues in the department at this time. We have a department that is not acting in accordance to the legislation we currently have. A prime example, as outlined by my deputy leader, is that of applications for drug assessments. Legislation already exists to drug test people, yet Ashlee Polkinghorne was never tested under section 20, part 2, therefore leaving Chloe Valentine in danger, which led to her subsequent death.

So, if the minister is not going to ensure that her staff act according to the requirements of the current system, how will any of these legislative changes make for meaningful change for our children? This government needs to stop hiding behind reviews and royal commissions and actually make changes to the child protection system they have presided over for 13 years. There is no-one else to blame for this mess, not even the federal government. This has been the failing of successive ministers since 2002. We had Steph Key from 2002 to 2004. From 2004 to 2008, we had our current Premier Jay Weatherill holding this portfolio for the longest term of four years. From 2008 to 2011, we had Jennifer Rankine, who again had the portfolio from 2013 to 2014, which also totals four years. It was with Grace Portolesi from 2011 to 2013 (being two years) and, currently, we have minister Susan Close. The government needs to implement—

The DEPUTY SPEAKER: Order! You do need to refer to members by their electorate.

Ms SANDERSON: Okay. I will have to get—

The DEPUTY SPEAKER: Port Adelaide.

Ms SANDERSON: Port Adelaide. The government needs to implement meaningful change now. We do not need another kneejerk reaction that does not adequately protect our most vulnerable children. We need a properly thought out plan and we need to see that now.

The DEPUTY SPEAKER: Minister.

Members interjecting:

The DEPUTY SPEAKER: The minister has the call. I am the one calling and I called you. What is going on here?

Ms Chapman interjecting:

The DEPUTY SPEAKER: No, it is not alright. I am calling and it is her.

The Hon. S.E. CLOSE (Port Adelaide—Minister for Education and Child Development, Minister for the Public Sector) (16:10): Deputy Speaker, the bill before the house addresses a number of matters raised by the Coroner following the inquest into the tragic death of Chloe Valentine. In child protection the care, safety and development of children is our first and most important priority. It is the driving motivation for hundreds of dedicated Families SA staff who are on the frontline, delivering services to the most vulnerable members of our community.

For a majority of children their best interests are served when their families are supported to care for them and provisions are put in place to allow them to stay with their parents, but there are times when this is not the case and the best interests of the child do not coincide with maintaining the family as a unit. This is an incredibly delicate balance and one that it is imperative we strive to get right because we know that when we get the balance wrong in either direction the consequences can be truly tragic.

The bill seeks to provide clarity that in the administration of the Children's Protection Act the paramount consideration is the safety and wellbeing of children and that, while still a consideration, the importance of family is a secondary object. This government also believes that the voice of the child should be considered in decisions that affect them. I have worked with the Attorney to ensure the inclusion of this within the government amendments that have been filed.

This bill makes a number of significant and important amendments to current legislation, with the aim of further ensuring the safety of vulnerable children within our community. I trust this is something that all members in this place will support. I commend the bill to the house.

Mr TARZIA (Hartley) (16:12): I reiterate the points made by the members for Bragg and Adelaide. It is a shame for the good children and families of South Australia that, unfortunately, this government has only taken the issue of child protection seriously when it hurt the government politically and not before that point. The state government can have a different minister in this area, the state government can have a different name for the area, but deep down, below all of that, there are fundamental problems and this government has failed the people of South Australia with regard to this area for far too long.

As we have heard, the bill was introduced in this place by the Attorney on 6 May and in February the Premier appointed a different minister as Minister for Child Protection Reform. The bill implements recommendations from the state Coroner in his recent report of 9 April 2015. We all know that he investigated the shocking case of the death of Chloe Valentine, who died whilst in the care of her mother on 20 January 2012. As the member for Bragg alluded to, these injuries were shocking. Young Chloe died from head injuries accumulated over a period of time of abusive acts and, quite frankly, gross neglect. The Coroner was especially damning of the failure of Families SA to protect the child.

We have also been told today that Ashlee Polkinghorne was sentenced to eight years, with a nonparole period of four years and nine months, for manslaughter by criminal neglect. There were 21 recommendations in the Coroner's report. I understand the government has resolved to support 19 of these recommendations, with in principle support for recommendation 22.13, to consider adoption as an alternate placement option, and also recommendation 22.9, which would be the subject of further investigation.

The government reported to parliament on 5 May, identifying its position on the recommendations, and it established a working group which comprised the chief executive of DECD and representatives of AGD, DPC and the Crown Solicitor's Office. The government was clearly desperate, in my opinion, to present this front to the public that, all of a sudden, they took this matter seriously and, all of a sudden, they want to be seen to be acting with responsibility and with urgency. Quite frankly, though, the government has failed the people of South Australia for far too long in this regard and it is absolutely shameful that it only takes these concerns seriously when it thinks it hurts them politically.

The bill proposes a number of amendments pursuant to recommendation 22.12, that the objects of the act be made plain and that paramount consideration in the administration of the act was to keep children safe from harm, and the bill amends the act accordingly but it also removes the fundamental principles as set out in section 5, which I will speak to in just a second.

Further, pursuant to recommendation 22.11, the act is amended to cumulative harm as a relevant factor in making decisions about the care of a child—that is, not one abusive act of gross neglect, but where children or a child's circumstance suggests a history that the child's care is wanting. I note that this issue has been referred to in a number of other reports, including the Child Death and Serious Injury Review Committee Annual Report 2012-13, when it considered the gross neglect and abuse in cases such as the 'house of horrors'—which the member for Bragg has also mentioned.

Pursuant to recommendation 22.2, the act is amended to include a provision that a child born to a person who has a conviction in respect of a child previously born to them for manslaughter by criminal neglect, manslaughter or murder will, by force of the act, be placed from birth under the custody of the minister, and the minister will have power to impose conditions on a convicted parent's dealings with the child.

Notably, this proposal is unique in Australia and I would say that the government's capacity or capability to instigate it, to implement it, particularly identifying the children to whom it will or will not apply, remains to be seen and remains unsolved. I thank the government for enabling us to be briefed on this issue and I also note that it has put out the bill for consultation.

I want to particularly speak of the Law Society of South Australia's comments in regard to the bill which I found most helpful. The Law Society of South Australia has raised its objection to the repeal of section 4 of the Children's Protection Act. They claim it to be actually removing the principles set out in one of the conventions that Australia has signed up to: the United Nations Convention on the Rights of a Child. I note that Australia is a signatory to that convention.

Section 4 reflects those principles, including the best interests of the child and, not only that, but that those interests should be a primary consideration. Further, it says that the state must afford children who are capable of forming their own views the right to express those and be given the opportunity to be heard in judicial or administrative matters affecting them. They also consider that the bill should be presented for public consultation.

With regard to section 4, they have pointed out that it sets out the fundamental principles underlying the act. These are in addition to the objects of the act which are set out in section 3. The society does not agree that it is necessary to remove the fundamental principles in section 4 to achieve the aims of the bill. I note that only today we were, in the current Attorney-General's typical fashion, slipped his latest amendments to a bill. He has had years and years to consider these things, yet we are given these amendments at the eleventh hour, right before debate today.

It is simply not good enough. I really wish that the government had put out this bill to the public for consideration. This is an issue that is quite serious. There is not much that is more serious than child protection issues. The government should put this out for public debate. They should consider the submissions of the learned groups who have commented on it. I believe that the bill should be amended to retain section 4 of the Children's Protection Act. I commend it to the house.

Mr KNOLL (Schubert) (16:20): I rise today to speak about the Children's Protection (Implementation of Coroner's Recommendations) Amendment Bill because it is something that, as a new father, has struck a chord. When there is bad news on the TV, whether it is news of homicide or murder or whether it is news of aggravated assault, I tend to try to not listen to the details because it can sometimes get rather depressing. The reason the Chloe Valentine case has garnered attention is its ability to strike at the heart of any parent or grandparent in South Australia. To contemplate the things that happened to Chloe Valentine and to put them into our own context, into our own lives, really does bring home some awful truths about what happened to Chloe.

From the outset, I would like to say that there is no ideal situation when it comes to dealing with these matters. It is never a case where we get to an ideal circumstance, because in an ideal circumstance we would never have to delve into these issues in the first place. What we are attempting to do as lawmakers is, in this instance, deal with the least worst and try to find the best of what is otherwise a bad situation.

The bill itself makes three recommendations that have come from the Coroner's report. The three things that this bill seeks to do is to change the fundamental principle of the act from essentially keeping families together to using the act to keep children safe from harm. That is quite an interesting move and one that I certainly agree with, but I think that we have to understand the context of this act being used when family relationships and children's situations within a family have broken down. I want to speak to that a little later.

The second thing that it seeks to do is to bring in the provision for cumulative harm. The idea is that a series of events can culminate in the child being taken away, essentially strengthening the ability for Families SA to look at situations where parents continually breach their obligations to their own children and using that as a method of taking them away. The third is for the minister to take into state care a child who is born to a mother who has been convicted of criminal neglect, manslaughter or murder.

If we take a couple of steps down the road to when this bill is enacted and becomes law and is acted upon by Families SA, we are going to see an increased number of children taken away from their parents. The three things in this act strengthen the ability of the state to take away children from their parents. I think that, when we reflect on Chloe Valentine's case, we can see that this is not necessarily a bad thing. On that point, I would like to reflect on an article that Tom Richardson wrote last year on 26 September when dealing with this issue. I thought his article at the time struck at the heart of where I think South Australia was in their response to this issue. I would like to read an extract. He said:

Yes, there has been a failure. A child has died. But it's interesting that the first reaction of so many is to blame the authorities, rather than the child's own mother by whose hand she was killed. Addressing the systemic flaws in this case is a matter for the coroner. But Families SA functions in a hideous, imperfect realm; there is no ideal outcome.

As a country, we have spent much of the past two decades rightly berating misguided historic policies to rip 'at risk' Aboriginal children from their families and into the guardianship of the state. And yet with each child protection failure that hits our headlines, we shake our heads with dismay that the state couldn't summon the fortitude to remove the child before they came to harm. And again, there is the ripple of a silent undercurrent not of racial prejudice, but of class condescension, bubbling deep below the genuine fears for children's safety. Some people shouldn't be allowed to breed.

Questions of staffing and resourcing are another matter, but the fact is, Families SA has operated under the general assumption that children should, where possible, remain with their families. If they operated differently, there would be a different kind of uproar. In the case of poor Chloe Valentine, though, this assumption had fatal consequences.

I do not agree necessarily with everything that is written in that paragraph, but I think it does sum up where the community's attitudes are with this. The member for Bragg outlined the failure of the government in this case. Let's make no bones about it: the government failed Chloe Valentine and the hearings by the Coroner confirmed that the government failed Chloe Valentine. I think that we can deal with it and we can press that case, but I think we need to look at the next steps and I think that that is what this bill seeks to do.

When looking at what is going to happen in this bill, we need to realise that there are three separate things that governments should be doing to help deal with situations like this. This bill seeks to deal with what I call the second part of family relationships and parents looking after their children and that is dealing with what happens when parents do not fulfil their obligations to their children, where the family unit, as such, breaks down. This bill seeks to strengthen the government's position in being able to deal with those cases and that is very worthy, but there is the 'before this' and there is the 'after this' that I think we also need to take into consideration, and I hope it becomes part of the broader debate. The 'before this' is dealing with prevention.

When I was looking deeply into this topic I came across a report by Professor Patrick Parkinson of the University of Sydney. He wrote a report called 'For Kids' Sake' in 2011 that dealt with the family unit and the social fabric in our society and how the family unit has progressed and issues that there are with family breakdown. I would like to read a couple of bits and pieces from his report. He states:

One of the reasons is that any report card on the wellbeing of the nation's children is likely to be mixed. Australia remains the Lucky Country in many respects. The wellbeing of Australian children has improved on a number of measures in the last decade or so, in particular in terms of physical and economic wellbeing. Yet overall levels of wellbeing, and even upward trends for the majority of the population, can disguise increasingly serious problems for many children. When the position of the nation's most troubled children and young people is considered, there are indications that all is not well, and that on numerous measures, the situation is deteriorating at an extraordinarily rapid pace. There has also been a decline, more generally, in the psychological wellbeing of young people. As a society, we may be healthier and wealthier than a generation ago, but contentment has proved more elusive.

He goes on to say:

There is a canary in the coal mine that provides early warning about the extent of social problems we are facing, and this is in the child protection system. There has been a dramatic increase in the last 15 years in the numbers of children who are reported as being victims of, or at risk of, child abuse or neglect, the numbers of children where that abuse or neglect has been substantiated after investigation, and the total numbers of children in state care. That increase has been seen in every State and Territory in the country, indicating that it is not just the consequence of changes to legislation, policy or practice within one State or by one child welfare department, even if those changes are contributing factors.

It basically says that what we are dealing with here, what we are trying to grapple with as a parliament, is one of the leading indicators of broader issues within the family structure within our society more generally. He goes on to recommend a series of things and talks about at-risk behaviours of teenagers, the breakdown of marriage and the family structure, and the rise in less stable relationships through de facto relationships and the like, but what I really wanted to focus on is where he starts to talk about prevention.

The child protection act probably tried to deal with prevention when trying to keep the objective of keeping families together at the heart of it, but unfortunately the nature of the child protection system is such that it is dealing with the people who are at risk, so it is probably more appropriate that we move to a situation where we look after the child first and foremost. That does not diminish the fact that we should be continuing to focus on prevention as a way to stop these issues from happening in the first place. He says:

There is now a consensus in Australia, as well as other western countries, that in order to make a lasting difference to the levels of child maltreatment, as well as other problems that children face, there has to be a focus on prevention. This emphasis has been endorsed by the Council of Australian Governments in its strategic plan for child protection (2009). Achieving a shift towards prevention is, however, easier said than done. This is because of the enormous and increasing demands for services targeted at children who have already been identified as having suffered harm.

What I do not want to get lost in this debate, as we move the child protection act to being more about cure than prevention, is the fact that we cannot lose sight of prevention as an important tool so that we can stop these things from happening in the first place, but I do understand that that is not always the case, that we are not always able to solve these problems before they start, because otherwise I am sure this entire parliament would spend so much of its time trying to do just that.

I have talked about prevention and what happens before children fall into a situation where they are at risk of harm. We have talked about this bill and what it is trying to do when there are children at risk or who have suffered harm, but I think in this debate we also need to look at what happens next. I said at the beginning that this bill is going to lead towards an increased number of children going into state care, and we have to look at that not necessarily being the most ideal outcome.

We have seen issues with institutional abuse. In fact, there is a royal commission going on now into institutional sexual abuse, and I think that has some ramifications for institutional care. We hear reported cases of foster parents of Families SA workers abusing children and, again, we have to look at that and how we deal with that. Once we have taken these children away from their parents, we have to understand what we are going to do next.

We need to very much have the philosophy of providing a child with a stable, loving family environment. That has to be at the core of what we seek to achieve once we have taken them away from their biological parents. That is where I think part of this debate has to move to making it easier for that situation to occur.

Interestingly, on the weekend, the journalist Kate Legge wrote in The Weekend AustralianMagazine an article about the difficulties with open adoption, the difficulty with adoption, and some of the cases where we see less permanent forms of care for children where children are taken from foster-parent to foster-parent, where there is no stability and they start to exhibit all sorts of behavioural difficulties and a lack of behavioural development because of their lack of a stable, loving, structured family to support them. Again, I would like to read a paragraph. She writes:

Adoption in Australia is at its lowest since data collection began in 1968, while the number of children who have been removed from unsafe homes has never been higher. This paradox has gingered support for more open adoptions, shirking the taboo that has immobilised a country still grappling with its sorry history of forced adoptions and stolen generations. Given what we know now about the critical link between attachment in early childhood and healthy neurological development, advocates are demanding a better model for securing children at risk.

I could not agree more. That paragraph really strikes home to me how much work we as a society still need to do to find the real answers to grappling with this issue.

I understand that a select committee will be proposed in coming days and, not wishing to talk or discuss that bill, I hope that it is an opportunity to discuss these issues, whether we are talking about more permanent forms of foster care where we are able to place children for longer periods of time, or whether we are able to move to different forms of open adoption, such as is outlined in Kate Legge's article, where there are different models for how we are able to keep children away from harm.

I hope that, through that discussion, we can talk about the fact that, if we are going to take children away from their parents, it is best that it is done as early as possible, because the longer we leave it, the more harm there is to the child. I hope that, in making that awful decision to take children away from their parents, we are able to give them somewhere else better to go, that is not just three eight-hour shifts on rotation in 24-hour care or being shopped around from foster parent to foster parent, but a stable, loving, family environment that is able to help these children develop as normal human beings into adults who are able to exist and contribute to society. I think it is through that that we are going to be able to break a lot of the cycles of abuse and neglect that we tend to see in generations of families.

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Housing and Urban Development, Minister for Industrial Relations, Minister for Child Protection Reform) (16:36): I would like to start by in particular thanking the member for Schubert for his contribution. It had all of the attributes of a great contribution in this place: it was brief, pithy, to the point, and absolutely on the money.

Members interjecting:

The DEPUTY SPEAKER: Order!

The Hon. J.R. RAU: It is refreshing that, amongst some of the contributions from the other side, we have a contribution from a new member of the parliament who is able to capture all of those things and put a very powerful argument in but a few minutes, completely devoid of vitriol and hyperbole, and constructive. I find it difficult, member for Schubert, to disagree with anything that you have said. In fact, I feel you might have been reading my notes, because I was about to say a number of those things.

I will summarise a few things very briefly. First of all, a little bit of context: we are here at the moment in respect of certain recommendations made by the Coroner which the government undertook to consider, considered them quickly, resolved to do something about them and brought a bill to the parliament as soon as possible to give effect to those resolutions. In fact, recommendations 22.2, 22.11 and 22.12 are the backbone of the bill that is before the parliament. If anybody wants to argue with the Coroner or the Coroner's findings, they can do so by disturbing the bill.

There are 13 other ones that are in progress. The working group, comprised of representatives from DECD, DPC, AGD and Crown Solicitor's Office, are monitoring the implementation of these reforms and are regularly reporting to cabinet about these ones, and these are 22.4, 22.6, 22.7, 22.8, 22.10, 22.14, 22.16, 22.17, 22.18, 22.19, 22.20, 22.21 and 22.22. Three of them have been completed, which are 22.3, 22.5 and 22.15, and recommendation 22.9 has been referred to the working group for it to conduct further work before reporting to the ministers. Recommendation 22.13 is awaiting the outcome of the review into the Adoption Act.

I did not bring this bill to the parliament on the basis that this bill is going to solve every problem in the child protection area—far from it. This bill is designed to deal quickly with a number of particular issues identified by the Coroner and that is exactly what this bill does, but I want to place it on the record that there is a lot more to be done. I may be quoting somebody here, but then again these could be completely original words, but I want to make the point: this bill is not the end, it is not the beginning of the end, but it is the end of the beginning.

There are other matters that we will need to be considering beyond this; I think the member for Schubert covered off on them pretty well, actually. But without this being an exhaustive list of other matters that we need to turn our minds to, we need to turn our minds to the question of mandatory reporting and all of the nuances attached to that question.

We need to turn our minds to the idea of more proactive oversight, a matter to which the member for Schubert did refer, and in particular the importance of early intervention and if removal is required, early removal. We need to turn our minds to the separation of the issues of family support on the one hand and child protection on the other, and to consider whether some rebalancing above and beyond what is occurring in this bill needs to occur in the whole scheme of things as between those two important priorities.

We need at some point to have the maturity and, I guess, the stamina—and I say that because no-one should underestimate the difficulty of this—to have a serious consideration of issues of guardianship, both state guardianship and non-state guardianship, foster care and adoption by whatever name it is to be called and all of the complexities that go with that, and I do not pretend for a moment that any of that is easy; it is all hard—really, really hard.

There are no easy answers to any of those questions. I think that if you look around there is no place in the world that gets this right because what you are starting with is something that is very, very wrong, and so all you can do is to try to do your best in good conscience to make things better, and that is exactly what we intend to do. This is a beginning of it, though. It is not the end of it, it is a beginning of it.

I understand that some contributions—and I will not go into them—were quite negative about what we are doing, and carping and demonstrated a sort of 'all-care-no-responsibility' sort of attitude, and basically were taking the easy option which is to grizzle about what we are doing and to pretend that there is some magic way that these things are going to solve themselves. Well, they are not. They are not going to solve themselves, at least in this package, which I say to everybody here is not the end of the road by any means. This is just an incremental step, and I have tried to outline for members some of the other very difficult steps that lie ahead that we are going to have to grapple with, all of us, and I hope we do that in the right spirit and in due course.

This is just a beginning, and what is the beginning? Okay, it is delivering on what the Coroner said in relation to that shocking case of Chloe Valentine. Yes, it is doing that, but what else is it doing? What this is doing is unequivocally rebalancing this legislation to say that first, second and third are the interests of the child—point No. 1; and there does not need to be some sort of brain arcing conflict going on in the minds of anybody looking at this or anybody administering this about whether the family keeping together is more important than the interests of the child or anything of that nature. They need to be crystal clear about that.

There is a trump card and it is called the interests of the child, point No. 1. I think that if you look at this piece of legislation the wording—which is about as explicit as it could possibly be and which talks about the paramount consideration being the interests of the child—does as much as we possibly can to make that clear. The second point I wanted to make is for those people who have raised questions—and I will not use any pejorative terms—about the removal of section 4. I do acknowledge that in consultation issues were raised about the views of the child being taken into consideration, and I have happily taken that into account and I intend in due course to move an amendment to give effect to that proposition.

However, I ask members this: if we are going to put the interests of the child as the paramount consideration, I would be absolutely gobsmacked if anybody can tell me—if that is what we are doing, and we want to be crystal clear about that—how section 4, and in particular subsections (4) and (6) fit in with that, because the answer is they do not. What they actually do is confuse the issue and detract from the primary object which we are trying in this amending legislation to make crystal clear to everybody: the interests of the child are paramount. We are trying to make it clear.

In the Chloe Valentine case people were perplexed. I make it clear that I am not having a go at any person who works for the department, because they had to work with what I am trying to repeal. People were perplexed as to where their duty to hold the family together or support the family ended and where their duty to look after that little girl began. What I am trying to do is to remove that ambiguity completely.

If anybody wants to come in here and start arguing about putting some of that stuff back in, I think they should think very carefully about that and think very carefully about what the Coroner actually had to say about what ultimately, from a policy point of view, led to this disaster with this young girl. The answer is: how can you expect the people who work for the department to have a clear vision about what the interests of the child might be and to pursue those interests absolutely and without question when their directions from the parliament are so ambiguous that they cannot be clear as to when they have to stop propping somebody up and start taking their child away? I just do not understand how anybody here, in the context of this debate, could not get how destructive that ambiguity is and will continue to be until we remove it.

I have listened to representations that have been made. Of course, if you do anything in this parliament about pretty well anything, there is bound to be somebody who will complain about what you are doing. We all know that there are some real hot-button issues out there. Some of them continue to surprise me, such as dogs and cats, for instance. But this one, by any definition, is a hot-button issue, and so it should be. I am not surprised that people out there are writing about this. I am not surprised that people out there are expressing views. Quite frankly, I am happy to come in here, and the government is happy to come in here, and say, 'We actually have a very clear view about the way forward here.'

We actually agree with the primary proposition put by the Coroner. That primary simple proposition is this: the child's interests come first, full stop, and we are not going to allow the statute to then say, 'But when we use the terminology "child's interests" we don't actually mean that at all. We mean subsection 4 of subsection 6 of the present section 4.' No, that is not what we mean. What we mean is that the child's interests come first, full stop, end of story.

As a result of consultations, there have been references made to the fact that the relevant conventions say that the views of the child should be considered. Fine, I do not have a problem with that. We have an amendment, which I intend to move shortly, which says exactly that. There is no problem with that. It is entirely consistent.

I believe also that, for reasons that I am not entirely sure, a perhaps rhetorical question was asked as to why, if we are removing subsection (4) and all of the clutter and ambiguity that subsection (4) contributes to this piece of legislation, why are we not removing subsection (5), which is the bit dealing with Aboriginal people. I think the answer to that should be pretty obvious. There was a royal commission held some time ago, and Justice Wilson, if I remember correctly, presided over it. It has had impacts which have been echoing for decades now across this nation in relation to Aboriginal people.

My view is that the Coroner did not enter into a conversation about the parts of this legislation dealing with Aboriginal people. If the opposition wants to have a conversation about that, I am okay about that but let us have that conversation as we go on with these other conversations we are going to have over the next couple of months. Let us have a discrete conversation about that, but please do not piggyback that conversation onto this because the Coroner was not talking about Aboriginal people. I accept that when we are considering whether or not these rules should have exactly the same implications for Aboriginal people as others, we need to give that some thought.

The reason I have not disturbed section 5 in my bill is because I have not had an opportunity to consider that, the cabinet has not had an opportunity to consider that and the parliament has not had an opportunity to consider that. I would have thought, given the fact that it would have a major impact on Aboriginal people, it would be intelligent for us to have a serious conversation with them about that before we do anything about it. That is why I have not touched it.

This is intended to be a surgical incision made into this legislation to touch the bits we are requested to deal with by the Coroner and to leave everything else alone, but acknowledging that we will in due course have to come back and look at the rest of it. This is not the end of this, not by a long shot. So, that is the way that I would hope the parliament can approach this debate. We are going in, it is a surgical intervention to deal with issues identified by the Coroner. It is going to do positive things for this whole child protection regime because it is going to do one very important thing that has been, up to the present time, not made clear enough; that is, that the rights of the child, not as defined by subsection (4) but as defined by common sense, are primary, full stop. If we cannot agree on that then, frankly, I wonder what this place has to offer.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

Ms CHAPMAN: I ask, in relation to the bill, whether it has been presented to the Coroner for consideration, and, if so, what was his response, and will you table it?

The Hon. J.R. RAU: No, it has not. This is a matter for the government not the Coroner. The Coroner is not part of the executive government. The Coroner has made recommendations. We, as the executive government, have made decisions on this. We are pursuing these decisions. They are in line with his recommendations. It is not his role to be a commentator on government policy nor our legislative framework.

Ms CHAPMAN: At any time has the Coroner identified in his report or in separate correspondence to you that section 4 of the Children's Protection Act should be repealed, and, if so, where?

The Hon. J.R. RAU: The Coroner's involvement in this matter is contained to a single public document called the Coroner's report into the death of Chloe Valentine.

Ms CHAPMAN: So, anywhere in that report, apart from under his recommendation 22.12, which does not mention the repeal of section 4 of the act, is there any identification of that request?

The Hon. J.R. RAU: I have already answered that question. The position is this: if the Coroner says, 'Look, you have to make the interests of the child the primary consideration,' that is what he said.

Ms Chapman interjecting:

The CHAIR: Order!

The Hon. J.R. RAU: It us up to me, my colleagues, the cabinet and parliamentary counsel to work out how we best give effect to that proposition. It is my judgement and it is my absolutely firm conviction that we could not possibly deliver on that without doing what we are doing with section 4.

Ms CHAPMAN: Prior to introducing the bill or indeed since, has the government consulted any Aboriginal organisation in respect to the repeal of section 4 which includes subsection (5) in respect of the Aboriginal and Torres Strait Islander Child Placement Principle and, if not, why not?

The Hon. J.R. RAU: I think you will see that we have actually retained that. We insert in section 5(1)(a1) that in dealing with matters relating to Aboriginal or Torres Strait Islander children, etc., the principle is to be observed and we have left everything else there, precisely because we have not talked to them and we have not sought to disturb anything specifically there for them because that is a completely different body of work which we have not begun.

Ms CHAPMAN: Perhaps the Attorney could identify where in the bill the retention of subsection (5) of section 4 is being retained.

The Hon. J.R. RAU: Page 3, section 6, amendment of section 5.

Ms CHAPMAN: What action has been taken in respect of consultation with Aboriginal or Torres Strait Islanders in respect of this amendment to include it in section 5?

The Hon. J.R. RAU: None, because section 4 has a lot of bits in it—this was one bit. We have gotten rid of the rest of section 4 but we have kept this little bit, and we put it back so that inasmuch as this legislation has any specific work to do in respect of Aboriginal people, nothing has changed. So, given that we are not changing anything, there is no reason for us to sit down and have a chat with them about not changing anything. If it was the case that we were going to change something, then absolutely we would be out there talking to them, but because we have been at great pains to not disturb any part of this fabric, inasmuch as it is to do with Aboriginal people, there is nothing to talk to them about.

Ms CHAPMAN: Can the Attorney explain to the parliament how it is that a member of Families SA is able to distinguish between the paramountcy of the protection of the child against harm who is Aboriginal relative to these other subservient obligations but not be able to do it in respect of non-Aboriginal children?

The Hon. J.R. RAU: The paramountcy provision remains for everybody—that applies to everybody. I have to say that all parliaments, all members of parliament and all executives need to be very careful about making specific rules for particular groups of people. As a general proposition there are issues about that. That said, there is a particular history that goes with Aboriginal people and there has been a particular well-documented series of issues relating to Aboriginal people. This provision, in my view, would now say in respect of Aboriginal people, 'Be clear: the fact that they are an Aboriginal person does not in any way mean that the primary objective is not looking after the kids.' That is clear.

If that represents a change from where we have been before, it should not, and I do not apologise for it if it does. But beyond that, the other provisions which require them to have regard to the Aboriginal placement principle and the provisions in subsection (5) as it presently exists, are intact and they would provide a subsidiary matter of consideration—but the primary consideration is the welfare of the child.

The CHAIR: Before we go on, I am mindful that clause 1 is actually the title and our debate is moving into clause 5, so can we put clause 1?

Ms CHAPMAN: I am not happy about that. I will ask questions in respect of clause 2.

The CHAIR: Later on, yes; so you have a question for clause 2.

Ms CHAPMAN: Yes.

Clause passed.

Clause 2.

Ms CHAPMAN: When this bill does commence, how is the Families SA person expected to deal with the subsidiary principle to be taken into account, in particular in section 5(1), which provides:

No decision or order may be made under this Act as to where or with whom an Aboriginal or Torres Strait Islander child will reside unless consultation has first been had with a recognised Aboriginal organisation, or a recognised Torres Strait Islander organisation, as the case may require.

If, in fact, as you say, the intention of this amendment is to ensure that harm or prevention against harm is paramount and that the obligation in 5(1) alone could delay the implementation of necessary and urgent intervention to take that child, it is exactly the same position as what a Families SA person, you say, is left with at present in respect of an ambiguity of obligation as to contacting families or keeping families in contact versus harm.

The Hon. J.R. RAU: Can I come back to the point I made before? I have deliberately left everything to do with Aboriginal people alone because I regard it as a discrete topic and I did not want to turn this into something it was not and to masquerade the Coroner's decision as being some sort of general reflection on the whole legislation, including Aboriginal people, which clearly it was not. The second point is that this legislation presently—and I am not saying it should always, and this is a matter that is up for grabs in due course—does not contemplate as, for example, the intervention orders legislation contemplates, the issue of an immediately operative order which then might subsequently be the subject of some review by the Youth Court, for instance. This does not now do that.

What it does do is to say there must be an application to the Youth Court and certain evidence needs to be assembled in order to make the application to the Youth Court to obtain the order for the removal of the child. That is how it works now. My understanding of the way this would work is simply that one of the pieces of evidence that the caseworker seeking to remove the child would have to accumulate above and beyond what they would accumulate for another child would be some evidence in respect of the matters contained in subsection (5). It simply means the preparation of the brief has an additional layer to it.

Is it the case that in some particular instances the preparation of that additional matter may require a little bit of time? It may do, but the answer, member for Bragg, is that if it would in the future it certainly does now. So, we are not making that any more than it presently is. We are not disturbing that. This requirement is already there. This requirement would have to be met now under the existing rules in order to properly prepare a brief to take a child away. What we are saying is that in the future, for the moment—and I come back to what I said before that this is not the end of this reform process by a long way—given that we are not opening the can of worms about Aboriginal people in the context of this very limited debate (that is something we need to talk to them about and everybody about in due course, if we are going to do anything at all about this), there is no change at all. The process of getting an order now and in the future will be no quicker or slower by reason of a person being Aboriginal, because the same piece of evidentiary underpinning for the application would have to be made now and it will have to be made in the future.

Ms CHAPMAN: But, of course, the Coroner's recommendation, which you say is the basis of this bill being brought to the parliament, does not say remove section 4 of the act, Attorney. I can point to plenty of circumstances where the suggestion is that we ought to be looking at those in the Aboriginal and/or Torres Strait Islander communities, but specifically the Aboriginal communities, namely, the royal commission report from the late Ted Mullighan QC, who clearly found the situation endemic in respect of child sexual abuse on the APY lands. Nothing has been done by this government to rectify that to the extent of protecting children against that shocking behaviour.

Not only that, we also have had reduced information available. We have the Nganampa Health Council that is protected against freedom of information. We have no disclosure of drug and alcohol abuse records from that agency. We have no detail of what is reported at Coober Pedy or any other place that is close to the APY lands in respect of child sexual abuse, allegedly because the government does not keep a record of where the child is resident, which is just a complete nonsense.

Let's talk about the urgency of dealing with child abuse in this case in respect of Aboriginal children, which has been completely ignored by this government. You say to us that you have to urgently deal with the Chloe Valentine coronial recommendations, rip out section 4 in respect of non-Indigenous people, and say, 'We will leave Aboriginal children to another day.' It is just scandalous the government's avoidance of its responsibility in both areas and to be pretending that this bill is consistent with what the Coroner has asked for when, firstly, it is not disclosed in his report what you have done to it and, secondly, you have not even had the decency to go back to him to ensure that you have got it right.

The Hon. J.R. RAU: The Coroner is not some sort of commentator on government policy. The Coroner makes—

Members interjecting:

The CHAIR: Order! Order, the member for Kavel.

The Hon. J.R. RAU: Madam Chair, can you protect me from the member for Kavel?

The CHAIR: I am trying to protect you from the member for Kavel.

The Hon. J.R. RAU: Thank you.

The CHAIR: I may have to get the Serjeant-at-Arms to come in and do something about it.

Mr Gardner: He's looking forward to the opportunity.

The CHAIR: I have a standing order just for you too, member for Morialta.

The Hon. J.R. RAU: I need protection from him as well.

The CHAIR: I am protecting you.

The Hon. J.R. RAU: Thank you. I have tried to explain this. The Coroner said that there must be primary consideration given to the welfare of the child. We have done that. It is my absolutely firm conviction that to do that we could not leave section 4 unamended. Section 4 had to be fixed, in my opinion, and I am absolutely convinced that is correct.

I agree with many of the things the member for Bragg has just said. I too am absolutely appalled at some of the things that Aboriginal people in this state endure. I am appalled at the level of violence that they endure. I am appalled at the level of child abuse they endure. I am appalled at the notion that we have young kids with sexually transmitted diseases. I am appalled that they have levels of life expectancy 20-odd years below everybody else, if not more. I am appalled the levels of diabetes are what they are. I am appalled that half the people having blood transfusions and being on dialysis machines are Aboriginal people. I am appalled at all of these things. If the member for Bragg genuinely believes that by removing section 5 she is going to make some contribution to that, then, by all means, move it.

What I am saying to you is that I want there to be, in due course, a debate about everything the member for Bragg is talking about in the context of child protection. I want that debate, but I have not had the opportunity to consult with my colleague the minister. I have not had an opportunity to consult with the cabinet. I have not had an opportunity to consult with my caucus colleagues. I have not had an opportunity to talk to Aboriginal people. I am not going to come in here and go off half-cocked about Aboriginal issues. I am just not going to do it.

I admit that what I am doing is not solving the problem. I admit that. Nothing I am doing today is making anything specifically any better for Aboriginal children. I accept that except that we are saying absolutely clearly that the interests of those kids are number one. That is a difference and that is a difference for them too. But am I going into the weeds about helping Aboriginal people? No, I am not, and the reason I am not is that that is a very big conversation and I want to have the primacy of the interests of the child within weeks.

I do not want to wait until we have had the necessarily lengthy consideration of this in consultation with Aboriginal communities. I do not have the same experience of consultation with Aboriginal communities as some of my colleagues have, but I am reliably informed that for us to do that properly it is going to take a little bit of time, and if it needs to take a little bit of time, it needs to take a little bit of time. I am not going to try to shove something down Aboriginal people's throats without talking to them and I am not prepared to have this legislation be held hostage to a conversation about something completely different which might take a very long time.

The CHAIR: Clause 2 is 'Commencement' and it is procedural, so can I put clause 2?

Ms CHAPMAN: No, I am going to ask a further question, if I may.

The CHAIR: On clause 2?

Ms CHAPMAN: On clause 2.

The CHAIR: To do with commencement?

Ms CHAPMAN: In relation to clause 2, which outlines 'a provision under a heading referring to the amendment of a specified Act amends the Act so specified', whatever that is—

The CHAIR: That's clause 3, so can we put clause 2? Is clause 2 okay?

Ms CHAPMAN: I have a further question on commencement. In respect of the commencement, why is it necessary, Attorney, for you to claim that they—meaning the Families SA workers who are referred to in the report from the Coroner—were perplexed about their duty to family and their duty to protect a child when clearly the Coroner's report has not identified that there was a level of perplexity about that? The report in fact pointed out that, in particular Mr Kemp, as I recall, who is not an employee of the department but someone who had formerly been employed and did understand quite clearly what the department's obligation was but also was capable in his current work to be able to understand that, so much so that the Coroner recommended that the evidence of Mr Anthony Kemp as a whole be considered and included in part of the redesign process referred to by Mr Harrison in his evidence.

The Hon. J.R. RAU: I did say they were perplexed. Perhaps I should have said they had a right to be perplexed. I have not spoken to each one of them.

Ms Chapman: Ah!

The Hon. J.R. RAU: I'm not pretending I have.

The CHAIR: Order!

The Hon. J.R. RAU: They had a right to be perplexed. I say this to members: some years ago, wearing a slightly different hat, I used to spend quite a bit of time in the Coroner's Court and I know, from personal experience of being involved in matters before the Coroner that involved child protection, that there was a lot of evidence to the effect that people who were employees of the department who were trying to do their job had an apprehension that, because of the way subsection (4) in particular was written, they would not pass the threshold to get an order.

I am saying to you that I have read this many times. I first read this, actually, about a decade ago and it is something I have thought about many times. This legislation cannot be all things to all people. It cannot say, 'We're going to look after families and we're going to hold families together come what may and we're going to look after children come what may,' because a point comes where those two propositions are completely irreconcilable.

What we are seeking to do in this amendment is to make it crystal clear to everybody and actually to help the workers who are the front-line people who are dealing with this have a clarity in their minds: 'When in doubt, look for the child's interest. Don't allow yourself to be puzzled about whether the family interests should still be weighing down on you and all that sort of stuff. If you're clear in your mind that the interests of the child are going to be served by making certain decisions, you go ahead and make them.'

That is what this is intended to do. It is intended to give those people legislative permission, legislative support, legislative imprimatur to go around and say to themselves and their colleagues, and in turn changing the culture of the place, 'We have the support of the parliament in putting children first.' That is what this is intended to do.

Clause passed.

Clause 3.

Ms CHAPMAN: Attorney, when you considered this matter 10 years ago when the Premier (formerly at that time the minister for families and communities) debated the amendments to strengthen the Children's Protection Act consistent with Robyn Layton's recommendation that harm was to be included, obviously, as a matter of priority in the bill and was in fact listed as No. 1, which says, 'Every child has a right to be safe from harm', and when you listened to the Premier, just a few days ago on 6 May, tell this parliament that members of his department were in here listening to this debate and understood what their obligations were in respect of the implementation of this act, are you saying that that was not crystal clear to them at that time, that being safe from harm as one of the fundamental principles as reaffirmed in section 3 was not absolutely crystal clear to them then?

The Hon. J.R. RAU: I cannot obviously give evidence about what might or might not have been in the minds of other people some several years ago, but I can say that I am absolutely certain that when the Premier was, in 2005, the relevant minister and he made amendments to this legislation, it was his clear intention to (inasmuch as he thought he could amend this legislation to achieve it) advance the interests of the child as far as possible in the balance. That does not mean that 10 years later, with the benefit of what experience we have garnered over the last 10 years and the shocking circumstances leading up to the report of the Coroner, we cannot revisit that and do better. I think we can and that is what we are trying to do.

Ms CHAPMAN: So, where the Coroner says in respect of this amendment and the recommendation to make it clear, which he outlines in recommendation 22.12 I think it is, his words were:

I recommend that the Children's Protection Act 1993 be amended to make it plain that the paramount consideration is to keep children safe from harm. Maintaining the child in her or his family must give way to the child’s safety.

That was the recommendation, but he also made it clear in the substance of his report:

The inclusion of the words cumulative harm in the objects section of the Act will not achieve anything unless it is acted on.

He goes on to talk about the importance of ensuring that it is actually done. That is, in dealing with the tightening up of the obligations that he is recommending be paramount and to be crystal clear (to use your words) in respect of cumulative harm, he is saying it means naught. Firstly, it should be happening anyway, but he makes that point that there is no question about how you might change the words in this to make it more crystal clear, but there has to be the willingness to act upon it. Apart from the chief executive's directive, circular, whatever you want to call it, that you have tabled here in the parliament, what action is actually happening to make sure that they actually comply?

The Hon. J.R. RAU: The chief executive has taken steps which I have advised people of in terms of issuing directions. The chief executive and his management team are attempting to make sure those directions are observed. The great piece of support they really need, the thing that is going to make their task easier, is the swift passage of this legislation.

Ms CHAPMAN: Attorney, at page 142 the Coroner also says, as to his indication about what has to happen:

Nothing less than a massive overhaul of Families SA and the culture and training of its staff will suffice.

As I have said earlier in a contribution, that follows numerous reports which say the same thing, including the select committee of this parliament, which talks about a rotten culture in the department. All I have seen so far are directives or circulars that you have tabled which suggest that there is going to be a training program for note taking in the department. Now, meritorious as that might be, it hardly brings anything close to what the Coroner clearly says must happen if this is to actually make any difference.

The Hon. J.R. RAU: I just want to make this very clear to the member for Bragg and others: I am not here to be an apologist for the failures of this department—I am not. What I am equally not here to do is to go around kicking or vilifying the individual people who have to do the very unpleasant work that is involved in this area of public administration. I agree, the culture of the place has to change, and—

Ms Chapman interjecting:

The CHAIR: Order!

The Hon. J.R. RAU: —the change in culture needs to be done in a way that does not victimise the front-line troops but supports them and encourages them to have the confidence to be able to do what they need to do. Now, one small step in that is the issue of a circular—I agree a very small step. This legislation is another step, and can I go back to what I said before. I want to make it really clear, the minister and I are going to be coming back to this place quite frequently—sorry parliamentary counsel-—with other things we believe need to be done to improve things, and I touched before on some of the topics.

I do not think that the member for Bragg and I actually are really in disagreement about some of the things that need to improve. They do need to improve. Aside from the Aboriginal issue we talked about a little while ago, which is a big, big issue in and of itself, the whole issue of mandatory reporting, the whole issue of turning the system around so that it is no longer a reactive, mandatory report-driven system but is actually a proactive system intervening as quickly as possible to identify at-risk people and deal with them, and the idea of separating the aspect of the department which deals with the supported families from the aspect which deals with child protection so there is not a schizophrenic element to people—the same person perhaps—having to go into a home and be at the same time the helper and the potential remover of the child.

Ms Chapman: Like SafeWork SA.

The Hon. J.R. RAU: Absolutely correct, and they need some work too, and they are going to get some. They are going to get some this year. Yes, indeed, we are on that one. In fact, parliamentary counsel, I would not be surprised—you have not got it yet? Hang on to your hats, that is coming; and the really thorny issue too about guardianship, foster care and adoption. What is the good of having a system that is going to mop up all of these children, process them through the system and then drop them into a balloon called 'guardianship' that just gets bigger and bigger? These are all difficult questions.

Ms CHAPMAN: Well, that is not what I am asking. What I asked was—

The Hon. J.R. Rau: I thought that if I did not get it in then I would miss out.

Ms CHAPMAN: You have repeated it all, that is fine, we can waste a bit of time on that. I ask you this: the Coroner says that in dealing with the department's management of these cases now there has to be a complete retraining. He does not say 'just extra on note taking', he talks about that somewhere else. He says here on this issue that if they are going to be serious about prioritising this, the paramountcy of children, keeping out of harm's way (clear, crystal clear, he says), what you need to do is to have a massive overhaul of that culture and the training of the staff, and that is necessary to do that.

I am asking you, minister, seeing that we are here complying with his recommendations, what is the department doing to ensure that that is actually being put in place because so far all I have read is a circular which talks about, 'Thank you very much for all the good work you are doing, and you are going to be having some training lessons on note taking, apparently coming in June'.

The Hon. J.R. RAU: First, can I say that I totally agree there needs to be a change. The minister agrees there has got to be a change, the chief executive agrees there has got to be a change and the staff actually, I think, would welcome a change because it would clarify their roles and functions, I believe, and we will be doing everything we possibly can to roll that out.

That is our intention, but as everybody in here would know, particularly the member for Bragg who has been involved in a great many of the debates in this parliament over many years, the things that are easy to change—well, relatively easy, given the other place—are acts of parliament. The more complex things are things like culture, and they require hard work and they require effort. All I can say to the honourable member is that she has my assurance that I regard this as absolutely important that this change is driven and that it occurs, but it has got to be done in a way that supports the front-line troops who actually have to deal with this and does not push them into a position where they feel they are being isolated or in some way held to be responsible, for want of a better word, for every failure in the system. The system has to reform itself, yes, but it has to do so in a way which is inclusive and supportive of the people who have to do the hard work.

Clause passed.

Clause 4.

The Hon. J.R. RAU: I move:

Page 3, after line 18—Insert:

(3) If decisions are to be made under this Act in relation to a child, the decision maker must have regard to the views of the child (if the child is willing and able to express such views).

Amendment carried.

Ms CHAPMAN: Under clause 4, the proposed new section 3 incorporates in subsection (1) a reference in brackets. Why is that in brackets?

The Hon. J.R. RAU: Is the member for Bragg asking me why there is a bracket before the word 'If'?

Ms CHAPMAN: '…and in the administration of this act'.

The Hon. J.R. RAU: I think I might be looking at something different in that case. Just bear with me. I see:

The primary object is to keep children safe from harm (and in the administration of this Act that object must, in all cases, be the paramount consideration).

I would like to hand over to parliamentary counsel to answer this question. I think if parliamentary counsel were able to answer the question, parliamentary counsel might say that it is an elaboration on the first statement and it is a stylistic emphasis. It is a stylistic matter for parliamentary counsel. If it had been me drafting it, those words would all be in capital letters and in red crayon, but that is the way parliamentary counsel does it.

Ms CHAPMAN: I place on the record that I think that that is only going to add to the confusion. It is like having notations and examples, which they seem to have a penchant to do.

The Hon. J.R. RAU: I am happy to remove the brackets if that is going to make everybody happy.

Ms CHAPMAN: It does not actually help in dealing with this. If that is to be the paramount consideration, it should clearly state that, as the now Premier previously tried to do in 2005. He had not added a disqualification to it. The alleged confusion comes later, in subsection (3) of the current objects; however, you are repealing it. I do not think that adds to it; I think it makes it more confusing. If that is to be the paramount matter, then it should be there and crystal clear in subsection (1). However, I make the point that in identifying the other matters—the full potential and the importance of families, if I can paraphrase those subsidiary objectives—I think it is clearer. I think by virtue of your amendment, you have just added in the consultation on views aspect.

Let us hope that in another 10 years' time when someone is reading back on this debate, if they are a member of Families SA (or whatever the name of the department is by then), it is crystal clear to them that safety and protection of the child against harm is the paramount consideration. No matter whether it is severance from a cultural background, a mother no longer being able to live with them, a change of diet, a change of school, you name it, all of the disruption that otherwise comes to their environment, it is secondary to protection against harm.

The Hon. J.R. RAU: Can I say this: I am completely agnostic about the styling issue. If I am advised by parliamentary counsel that it does not do any damage and if it makes the member for Bragg feel more comfortable that we are being more explicit with what we are doing, I am relaxed about the parentheses being removed. I have not moved it. Can I just take that on notice and see what parliamentary counsel thinks in due course? It is a stylistic thing. I agree with the sentiments of the member for Bragg on this. If those parentheses in some way complicate matters, that is not my intention.

The CHAIR: So, can we remove those parentheses now or in between houses?

The Hon. J.R. RAU: I think we will consider it between houses.

Clause as amended passed.

Clause 5.

Ms CHAPMAN: As I have indicated, the opposition opposes the repeal of section 4. I see that, with other provision, the government proposes to rescue subsection (5) and place it with section 5 to preserve the current considerations for children who are of Aboriginal or Torres Strait Islander descent, and that is noted. I accept also that the government has moved into the objects some consideration, secondary as it may be, as to the views of the child. I thank the government for doing that. However, before it rips the fundamental principles that are listed there in section 4, I think, similarly, the government should not repeal that, it should be left intact and enable us to consider between the houses what elements of that should be rescued and not just in a kneejerk reaction pick out ones that have not been consulted on or which leave open other considerations.

I do not mind, and I have said this in the principal debate, for there to be a better summary order of what I would call secondary considerations and to put in some kind of consistent wording because, unquestionably, section 4 has been butchered over the years and it needs to be grammatically clear that all these other aspects are secondary, but I would ask that it be left intact in the meantime.

The Hon. J.R. RAU: I am sort of half reminded of a joke I heard years ago about a pig with three legs. You talk about butchering it. The fact is, every bit of clutter that is in here, every word which is unnecessary, every word that articulates the absolutely obvious—and the member for Bragg being a legally trained person of some eminence would appreciate this—the presumption is if something is in a statute it is there for a reason, it is there to do some work above and beyond what is elsewhere around it.

So, what additional work is all of this drivel supposed to do beyond the very clear statement: one, this is about keeping kids safe; and, two, you must have regard to the kids' views about how you keep them safe, if they are old enough and able to have some contribution to make on that topic? Why do we have to go into this completely unhelpful material in subsection (4), for example, about the desirability of keeping them with their own family, the undesirability of withdrawing them from the neighbourhood or the environment, or the need to preserve and strengthen relationships between them and their parents? What if their parents are the people who are abusing them, for God's sake? I mean, apply common sense to this, for once. This is pointing, in some cases, in completely the wrong direction.

The member for Bragg became quite emotional a while ago, and quite reasonably so, about Aboriginal kids who are in an isolated community where they are subjected to all sorts of terrible abuse. Let us say that is the child we are talking about. The desirability of keeping the child within their own family, that is helpful, is it not? The undesirability of withdrawing the child from the neighbourhood, the need to preserve and strengthen relationships between the child's parents and grandparents.

Let us not pick on Aboriginal people, then; what about the so-called House of Horrors? Something that is not happening in the Pit lands, something that is happening in an Adelaide suburb. Let us apply the same words to that: 'Oh, isn't it desirable to keep them in touch with those people.' I do not think so.

So why do we have this unnecessary clutter in here? This is an attempt—a well-meaning one, I accept, lest anyone think I am not giving some credit to the genuine sentiments of those who were originally responsible for this—and these are all very noble sentiments, but somebody once explained that a camel was a racehorse designed by committee. That is what we have here. These things, read them please; between the houses read them and ask yourselves this question: if you have a child in the worst possible situation what help does any of this give us? More particularly, what help does it give that child when the direction in our new objects is saying, 'Get that child out of there,' and all this stuff is saying, 'But don't get them out of there, because of this.' How is that helping anybody?

Ms CHAPMAN: Let me put this to you, Attorney, and let us use the very case that formed the basis of the inquest that brings us here on this bill. Chloe Valentine had a mother who was drug-addicted and who had traits—which were very clearly outlined in these findings—in respect of her manipulation of others and her failure to protect this child, and, indeed, the imposition of abuse on this child over a sustained period of time, if not from birth. That is the situation we are dealing with.

We are also dealing with Belinda Valentine, the grandmother of this child, who made multiple reports to the very people, the very department that is supposed to protect children in those circumstances. We are dealing with a report that makes it very, very clear that under the provisions of the act they should have drug assessed this woman, the mother of this child, who is now in prison. They should have acted to intervene and they should have given consideration to the fact that they had a ready, willing and available grandparent to make provision for that child. Even the explanation by the Coroner that she was not available in the middle of the night to go and pick up the child on one of these occasions was no excuse for not having that taken into account.

If members of the department—who, in this instance, have been roundly criticised—had gone through and looked at this section it would have been absolutely clear that this child was at risk and she was in a dangerous environment. They should have made sure that her mother was drug assessed and they should have explored the other options that are listed there in determining the best interests of the child, including available 'other relatives' to care for the child, and they should have acted.

So, yes; I think the list, as clumsily as it has now been drafted after it has been changed over a few times since its inception, is still an important list. Therefore, it should not be ignored. It says something to people who are working in this area if the child is at risk in respect of harm, that is identified later in the interpretation clauses—which are also pretty cumbersome and clumsy, especially sections 2 to 3, and now you are going to add another one in the next clause, subsection (4), which probably complicates that definition even more in terms of how, for the purpose of the act, a child at risk is to be interpreted—if ever there were a jumble of descriptions in that regard.

However, you are not preparing to actually wipe that out, you are actually adding to it. I simply say that before you start a wholesale throwing out of a helpful list of things to be considered, do this properly and, even between the houses, commit to looking at this redefinition issue. All we are going to do in this house is send up to the other place another mess, and we will have a repeat of this discussion whether it is next year or in another decade, as we have post the 2005 amendments. Let's do it properly.

The Hon. J.R. RAU: I have to say I could not disagree more with the member for Bragg—and God knows we have disagreed on occasions—but this might be the most disagreeable I have ever been—ever—and that is saying something.

Let's look at it from a lawyer's point of view just for a moment. If you say in simple words, 'The interests of the child are paramount,' full stop, and you leave it up to people to work out what is in the best interests of the child, you are actually saying to people, 'Every single possible consideration which leads to the best outcome for the child is potentially on the table.' For the best of reasons, no doubt, that is not what the current legislation says. It says, 'You must look after the interests of the child but, just in case you are too dumb to work out what that is, we are going to give you a list and tell you exactly what we mean when we say the interests of the child.' And guess what, expressio unius, etc. You know what I am talking about?

Ms Chapman: Indeed.

The CHAIR: Is that Latin?

The Hon. J.R. RAU: Expressio unius exclusio alterius—is that right?

Ms Chapman: Close.

The Hon. J.R. RAU: It means this—

The CHAIR: I think you need to stick to English, minister.

The Hon. J.R. RAU: It means this: to the extent that you start particularising things, the implication is that those things you have not particularised are not intended to be included—I prefer the Latin because it is much shorter than that and it makes you sound clever. That is the point. What we are actually saying here is, 'The interests of the child are paramount'—full stop. 'Oh, everybody is too dumb to work out what that is so we are going to define it for you and here is (a) to (e), and they are the five things that are in the interests of the child.' Only five—not six, not 10; just five, just these five—and if you are not one of these five a lawyer, a court would say, 'Well, elsewhere in this legislation where the words "child's interests" are used, it is meant to be understood as defined.' Parliamentary counsel are nodding a little bit perhaps—yes, a bit.

So what we have is, in effect, subsection (4), for example, of section 4 is a definition clause. It does not appear there; it is not labelled 'definition clause'. It should actually be in subsection (6), the interpretation provision; that would be a more honest place to put it but for some bizarre reason it is not in there—never mind. This is more harm than good; much more harm than good.

It is actually narrowing and confining the scope of the inquiry that might legitimately be undertaken by the agency as to what is in the best interests of the child because they are being hamstrung by this prescriptive list of things, thought up by a person, no doubt with the best of motives, who was only able to summon five things from their mind. Well, sorry, I fundamentally and totally disagree—totally disagree.

I am really flabbergasted about his one. There is a book out there somewhere entitled Stalin: The Court of the Red Tsar, written by a bloke called Simon Sebag Montefiore, and he is talking about the fact that the benevolent Georgian used to invite people back to his rooms every evening and they drank lots of vodka. One evening he had his usual lackeys there (Molotov and all the rest of them) and they got stuck into the drinks and decided that they were going to hear from a great baritone. The baritone turns up and they are all arguing and asking, 'Can you sing this,' 'Can you sing that,' and the poor bugger is getting very confused.

Eventually comrade Stalin says to everyone, 'Everybody calm down, calm down. I think we should let comrade So-and-so sing whatever he likes.' There is a moment's pause and then he says, 'And I think he would like to sing the aria from such-and-such.' That is exactly what we are doing here.

Ms CHAPMAN: If it is so important to remove this unhelpful list which you have described as being unnecessary, why is it necessary then in section 6 to not only leave the list of qualifications that go in the definition of 'at risk' of a child and not only that but add to it another clause, so much so that you identify there the current act which provides for a child being at risk if there is a significant risk to suffer harm, etc. That is pretty obvious, right? Then it goes on to list 'the child has been, or is being, abused or neglected'. Then we have the issues in relation to instances of threat to kill. Then we have instances of where the guardians are unable to care for or protect. These are all lists of explanation to be taken into account in determining if a child is at risk. Similarly, as in section 5, which sets out a list of things to be taken into account in considering the interest of the child.

It is inconsistent, Attorney, that on the one hand you say, 'Let's make it clear here, but when we go to the determination of risk we are going to actually add another clause on that,' which I think is superfluous to subsection (2)(a), which already says, 'a child has been, or is being, abused or neglected,' because we want to add in an extra clause to clarify this cumulative harm concept. I do not mind, except that I would suggest you are actually overlapping in this list, making it a clumsy list, instead of identifying what the priority is, what factors have to be balanced and what weight is to be given to them in identifying whether a child is at risk.

Remember that in this piece of legislation this is a constant phrase that has to be interpreted, most significantly by the chief executive of the department, who is frequently left with the responsibility, ultimately, to make that determination. In fact, he is required to act in a number of occasions in circumstances where there is a finding that the child is at risk. So it is an important piece of the legislation and it is important that it be clear in the interpretation.

In the next paragraph, you are about to add in subsection (4), which I suggest will confuse that list, not that that is not meritorious, and we have already said that. Let's make sure that the users of this clause, whether it is the chief executive or anyone under him or her, understand that cumulative harm is a factor. It is just as bad as if you hit the child once, if there have been lots of little hits and lots of bruises. Each one may not have warranted an intervention, but there is a cumulative effect, just like not sending your child to school, which is also in that list, incidentally—consistent truanting and persistent absence from school.

These are all circumstances where a child is at risk, and it is for exactly the same reason, Attorney, that you are about to remove section 4. You have made your position clear: you think it should be cleared up by removing those other subsidiary considerations, and you might be right, but I do not want this to be dealt with on a kneejerk basis, jumping into amendments which are then inconsistent with the rest of the provisions of the act, in particular section 6.

Clause passed.

Clauses 6 and 7 passed.

New clauses 7A, 7B, 7C and 7D.

The Hon. J.R. RAU: I move:

Amendment No 2 [DepPrem–1]—

New clauses, page 4, after line 4—Insert:

7A—Amendment of section 19—Investigations

Section 19—after subsection (1) insert:

(1a) If the Chief Executive issues an instrument of guardianship or a restraining notice in relation to a child under Part 5 Division 3, the Chief Executive must cause an assessment of, or investigation into, the circumstances of the child to be carried out.

7B—Amendment of section 20—Application for order

Section 20—after subsection (1) insert:

(1a) If the Chief Executive issues an instrument of guardianship or a restraining notice in relation to a child under Part 5 Division 3, the Chief Executive may apply to the Youth Court for an order under this Division.

7C—Amendment of section 26—Examination and assessment of children

Section 26(1)—after paragraph (b) insert:

or

(c) an instrument of guardianship or a restraining notice in relation to a child is in force under Part 5 Division 3,

7D—Amendment of section 27—Family care meetings to be convened by Minister

Section 27—after subsection (2) insert:

(2a) However, subsections (1) and (2) do not apply in relation to a child if the Chief Executive has issued, or intends to issue, an instrument of guardianship or a restraining notice in relation to the child under Part 5 Division 3.

New clauses inserted.

Clauses 8 and 9 passed.

Clause 10.

The Hon. J.R. RAU: I move:

Amendment No 3 [DepPrem–1]—

Page 4, lines 26 to 30 [clause 10, inserted section 44A(1), definition of guardianship period]—Delete the definition of guardianship period and substitute:

guardianship period means the period commencing at the time an instrument of guardianship—

(a) is served on the offender in accordance with section 44C(5)(a); or

(b) is lodged with the Court in accordance with section 44C(5)(b),

whichever occurs first, and ending 60 days later (or such longer period as may be allowed by the Court on an application under section 44D);

Amendment carried.

Ms CHAPMAN: This is the third tranche of the proposed amendments consistent with the Coroner's recommendation in dealing with children subsequently born to someone who has been convicted of certain offences. As has been identified, there are no guidelines at this point as to how this is going to operate. I placed on the record in my contribution my concern about that, particularly given the fact that it is so easily circumvented by the mother of the child leaving the state, having a baby outside of the state, having a baby at a place either at home or outside a state maternity hospital, and, of course, there are complications in even tracking down the male person who may father other children anywhere, let alone identification of where they are.

My concern is that this is likely to be a factor in the introduction of the New Zealand proposal as well. Theirs is slightly different, obviously, and I have had a look at that, and I thank the Attorney's office for providing me with a copy of that bill. My concern is how we are possibly going to implement this. My first question is: did the Attorney raise, or cause this to be raised, at the meeting of attorneys-general 10 days ago in Canberra when attorneys met to discuss national issues, in particular, as this is the only state that is proposing this legislation?

The Hon. J.R. RAU: I did not, because sadly I was not in the jurisdiction. I would have to check as to whether or not it was raised there. I suspect it was not, but I think the point that the member for Bragg raises is worth thinking about. If there is something we can do in the legislation to in some way ameliorate that risk between the houses, I am happy to look at it if it does indeed require some sort of reciprocal arrangements with other jurisdictions, which are not presently in place. I think some of them would be in place because, for instance, if people have been convicted of a relevant offence in another jurisdiction, we would have access to that through CrimTrac, I imagine, so that part of it I do not think is so complex. The point about somebody being out of this jurisdiction, having a child and then coming back is a point well made, and I think we should look at that between the houses.

Ms CHAPMAN: In respect of the preparation for this, has there been any budget allocation and, if so, how much for the implementation of this, which of course would include the preparation of the lists, notice to hospitals, maintaining of the list, extra obligations on the chief executive to deal with applications for these children which would no longer be discretionary under this legislation; it would be necessary to deal with it?

The Hon. J.R. RAU: I do not believe there is any discrete budget allocation for this. I think the reason for that is, first of all, the department is of the view that it can manage this within its existing resources, but secondly, and more particularly, we would not anticipate the number of cases in any year being that great. Whilst those cases attract a great deal of attention and are obviously quite emotional cases from the point of view of everyone in the community, they are not that common, mercifully, so we would not expect there to be tens or hundreds of these things going on at any time. The minister might have a better idea than me, but it would be pretty modest numbers, I would expect, so the idea that you would require any elaborate apparatus to deal with this I think is not the case.

Ms CHAPMAN: Is there are any provision under this new regime to apply to persons who give birth to a child after they have been convicted of certain offences for the obligation for them to have drug testing in circumstances where they are in a household where there are drug or alcohol concerns?

The Hon. J.R. RAU: Not directly. The way it would operate is basically this: upon a child being produced by one of these individuals, the guardianship of the child would shift, at least in a temporary fashion, to the minister or the chief executive—the minister—but be administered by the chief executive. There would then be a period of time during which the birth parent would have an opportunity to make an application to the court to either totally rescind that order or to have that order in some way varied in order to give them some element that they want. By the way, I am able to confirm that this was on the SCAG agenda. Just so it is clear, the SCAG agenda is the Standing Committee of Attorneys General, the state and territory ones. Quite frankly, the federal one is a bit of a circus. The one that does anything is this one.

Ms Chapman: When is the next one?

The Hon. J.R. RAU: The next one is here in a month or two. I think we have the next one of these here in Adelaide in July.

Ms CHAPMAN: Will the Attorney put it on the July agenda for SCAG?

The Hon. J.R. RAU: Just to make it clear, once the guardianship has shifted by force of the statute to the minister, the minister must then take the matter to the Youth Court and at that point we would expect that, in the context of the Youth Court investigation, the question of abuse of substances would necessarily be part and parcel of the inquiry. Yes, I am quite happy to make sure it is on the agenda for the next meeting.

Ms CHAPMAN: It is just that sections 21 and 22 are a process of assessment in the current act which do not relate specifically to this. You are saying to us that it is your understanding that, under this new process if there is a drug and alcohol issue in relation to birth parents in these circumstances, that will be treated as if it were under a section 20 application; namely, that the Youth Court can consider that as a condition of the order and its continuation, or its reversal in this case because, in this case, presumably, the natural parent or birthing parent is actually seeking to be relieved of the interim guardianship order in favour of the minister.

The Hon. J.R. RAU: In fact, there is a reverse onus here, so it would be up to them to convince the Youth Court that they are okay, not up to the state to convince the Youth Court they are not okay.

Ms CHAPMAN: Under sections 21 and 22 at present under the current assessments, there has been a circular go out to the department to comply with the edicts of the recommendation of the Coroner. Whilst there are different views about whether or not there has been compliance of that in the past—let's leave that aside for the moment—in the last month since that has been issued, have any drug and alcohol assessments been done of any parties known to the department?

Sitting extended beyond 18:00 on motion of Hon. J.R. Rau.

Ms CHAPMAN: I am particularly referring to the 1 May 2015 circular which just says a message from the chief executive. In your explanation to parliament this is something that has gone to all of the employees of the department and this particular one sets out the obligations of sections 21 and 22. It specifically refers to including an application for drug assessment. My question is: in how many cases since 1 May has an order been made for a drug assessment where a child is deemed at risk in a household by the department? I accept they may not have been concluded in that time, but how many have been applied for?

The Hon. J.R. RAU: It is a good question, and hopefully I have the answer. My understanding is this: that the department as a matter of course when it has a concern about a child makes an application under 20(1) and in the course of that, issues relating to, for example, substance abuse on the part of the parent or parents are part and parcel of the application. I have made some inquiries about whether or not there is a subset of cases where there is not sufficient concern on the part of the department to warrant an application under subsection (1) but they decide nevertheless to make an application under subsection (2) as a stand-alone proposition.

I am advised that that has been not something that has been routinely done, and since May, has not been done as a stand-alone proposition. So where the concerns have existed about the welfare of a child, the applications have been under subsection (1) which would have within its scope included a consideration of whether the parent or parents were affected by, or addicted to, or abusing substances.

Ms CHAPMAN: That is why I asked the question, Attorney, because if we are to have any confidence that the department are actually going to do what they have been directed to do, whether they make the application under section 20(1) or section 20(2) or this new regime—although admittedly with the latter there might be a bit more appetite by the applicant parent to want to comply so they can get their child back—but, nevertheless, that is why ask.

I do not really care whether it was under section 21 or section 22, since this circular went out. I would like to be reassured that some applications have been made to deal with parents, currently with a child or children in their care, who have been ordered to have a drug test or it has been applied to have it as a condition of continued placement, because unless we have that, then quite frankly, there have not been any changes in the department and I will not accept for one moment that there is not another Chloe Valentine case out there, and that there are circumstances in which children are clearly at risk because of drug and alcohol abuse in the household.

The Hon. J.R. RAU: In relation to that question, I am actually grateful to the honourable member because she has clarified for me exactly what she is trying to ascertain. I can say to the best of my knowledge the stand-alone subsection (2) applications have not occurred since then; however, I would need to get back to the honourable member about whether or not there have been subsection (1) applications commenced (and I doubt whether they would have been finished) since the circular, which have included as part of the scope of the application, a requirement of an assessment or other requirement relating to drugs, and I will ascertain an answer to that question.

Clause as amended passed.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Housing and Urban Development, Minister for Industrial Relations, Minister for Child Protection Reform) (18:03): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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