HANSARD
SITTING CALENDAR
SEARCH
LIVE BROADCAST
Hansard Dynamic Subject Index
House of Assembly - Fifty-Third Parliament, Second Session (53-2)
2016-09-20 Daily Xml
Contents
Pdf Xml

Bills

Children and Young People (Oversight and Advocacy Bodies) Bill

Introduction and First Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Industrial Relations, Minister for Child Protection Reform, Minister for the Public Sector, Minister for Consumer and Business Services, Minister for the City of Adelaide) (11:08): Obtained leave and introduced a bill for an act to establish the Commissioner for Children and Young People; to continue the Guardian for Children and Young People, the Child Death and Serious Injury Review Committee and the Youth Advisory Committee; to establish the Child Development Council; and for other purposes. Read a first time.

Second Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Industrial Relations, Minister for Child Protection Reform, Minister for the Public Sector, Minister for Consumer and Business Services, Minister for the City of Adelaide) (11:09): I move:

That this bill be now read a second time.

The Children and Young People (Oversight and Advocacy Bodies) Bill 2016 establishes the Commissioner for Children and Young People; continues the Guardian for Children and Young People, the Child Death and Serious Injury Review Committee and the Youth Advisory Committee; and establishes the child development council.

The bill forms part of the legislative reforms required to implement recommendations made by the Child Protection Systems Royal Commission published report, which was published in August this year. The measures in this bill give effect to the royal commission's report recommendations 245 to 248 and 250 to 253.

As many are aware, there have been a number of inquiries in South Australia over the last 15 years relating to child protection. These have included an extensive review of child protection carried out by the Hon. Robyn Layton QC (submitted in 2003), the two inquiries conducted in 2008 by the Hon. Ted Mullighan QC with respect to children in state care and children on APY lands and, more recently, the independent education inquiry conducted by the Hon. Bruce Debelle QC in 2013. I also note that on 21 May 2014 the Legislative Council of South Australia appointed a select committee to inquire into and report on statutory child protection and care in South Australia, including a review of Families SA's management of foster care.

This bill is not the first attempt by the government to establish a commissioner for children and young people in this state. In 2014, the government introduced the Child Development and Wellbeing Bill, which sought to improve the development and wellbeing outcomes for children and young people by means of appointing a commissioner, amongst other measures. Consultations on that bill commenced in 2012, and between August and October of that year 79 public forums and meetings were held and approximately 7,000 discussion papers were distributed.

The government received 156 written submissions from stakeholders and members of the community—so not an insignificant body of work by any means. Regrettably, that bill was not able to progress through parliament due to a lack of support by the opposition regarding the proposed commissioner's investigative powers.

Mr Marshall interjecting:

The SPEAKER: The leader is called to order.

The Hon. J.R. RAU: The government has been unwavering in its view that for sound policy reasons the commissioner should undertake systemic inquiries and not manage and adjudicate individual complaints and grievances related to child protection or child and young people's issues generally. I am pleased to note that the government's position has been endorsed by Commissioner Nyland, who at page 592—

Mr Gardner interjecting:

The SPEAKER: The member for Morialta is called to order.

The Hon. J.R. RAU: —of the report states, and I quote:

The Commission does not consider it appropriate that a Children's Commissioner be a complaints body, resolving or adjudicating individual disputes.

Prior to introduction into this place, the government undertook public consultation on the bill. The government received a good level of feedback from individual members in the community in addition to detailed and considered feedback from agencies and organisations. I wish to take this opportunity to thank all who have contributed in that process. The government is pleased to reveal that all of the submissions received supported the establishment of a commissioner and that a significant number indicated that the measures in the bill are in accordance with recommendations of the royal commission.

Recommendation 245 of the royal commission is to establish the statutory office of the commissioner, who will be equipped with functions and powers referred to in the royal commission's report. Recommendation 246 of the report recommended that the legislation for the commissioner, the Guardian for Children and Young People, the Child Death and Serious Injury Review Committee and the child development council be contained in a single act of parliament. Both of these recommendations have been achieved in this bill, which I will now explain.

The commissioner will have a broad spectrum of functions to do with all aspects of the lives of children and young people, including advocating rights and interests, promoting participation of children and young people in decision-making, advising ministers and state authorities, publishing reports, undertaking or commissioning research, and conducting inquiries into matters. The commissioner's independence from government is also important for providing children and young people with a representative body solely concerned with protecting children and promoting their rights.

The powers of the commissioner as prescribed in this bill vary depending on what function is being undertaken. For the purposes of conducting an inquiry into matters affecting young children and young people at a systemic level, the commissioner will have the powers of a commission as defined in the Royal Commissions Act 1917. Pecuniary penalties will be accompanying noncompliance with the commissioner's powers of inquiry, as will the power to apply to the court for a warrant for failure to comply with a summons.

When undertaking any other function, the commissioner will have such powers as may be necessary or expedient for the performance of that function, which is consistent with the current powers of the guardian. In relation to the appointment mechanisms for the commissioner, the government has reached an agreement with the Leader of the Opposition that the bill confirms that a person may only be appointed by the Governor to be the commissioner for a term not exceeding seven years, following a referral by the minister of the proposed appointment to the Statutory Officers Committee. I thank the Leader of the Opposition for that.

The appointment has been approved by the said committee. This mechanism will further underscore the independence of the commissioner from the government. In relation to the inquiry function, the commissioner may, with absolute discretion, conduct an inquiry into the policies, practices and procedures of a state authority or authorities as they relate to the rights, development and wellbeing of children and young people generally. In keeping with the views expressed in the royal commission report at page 598, the inquiry powers of the commissioner will extend beyond government-based agencies and systems into the non-government sector and community that provide services or have functions that will or may impact on the lives of children and young people.

For the purposes of this bill, inclusion of the non-government sector and community for the purposes of conducting an inquiry will be achieved by regulation. Before exercising his or her discretion to undertake an inquiry, the commissioner must have a suspicion that the matters raise an issue of particular significance to children and young people, and the matter is of a systemic nature, rather than being limited to an isolated incident, and it is in the public interest to conduct the inquiry.

Although inquiries undertaken by the commissioner must not be exercised to investigate an isolated incident or complaint concerning a child or young person, the bill expressly permits the commissioner to examine individual matters affecting a particular child or children in the course of an inquiry. The commissioner may also commence an inquiry as a consequence of becoming aware of a matter affecting a particular child or young person, provided that the criteria set out in clause 12(2) of the bill are met. Upon completing an inquiry, or in response to issues observed by the commissioner in the course of such an inquiry, the bill prescribes what further action is to be taken.

Firstly, the commissioner may make recommendations directly to state authorities concerned. Secondly, irrespective of whether any recommendations are made by the commissioner, clause 15 of the bill requires the commissioner to prepare and deliver a report to the minister. As stated, clause 14 of the bill allows the commissioner to make recommendations directly to a state authority by notice, in writing, to undertake prescribed actions. In response, the state authority must provide to the commissioner a report setting out its responses in terms of compliance with the aforementioned recommendations.

Where a state authority proposes to implement a recommendation, and the commissioner is of the subsequent opinion that there has been a failure or refusal to give effect to this undertaking, the commissioner may require a second report seeking an explanation. Should the commissioner find him or herself in this position, the bill provides a discretionary power to the commissioner to escalate and highlight such noncompliance by submitting the report to the minister. In turn, the minister must then prepare and submit both the commissioner's and the accompanying minister's report to both houses of parliament.

A parallel power is also given to the commissioner to require a state authority to provide a report pursuant to clause 54 of the bill. Clause 54 applies to all other incidences that may warrant the commissioner requesting a report from the state authority, which have not been subject to an inquiry by the commissioner. Clause 54 of the bill is a discretionary power to require a state authority to provide a report if the commissioner is of the opinion that it is necessary or would otherwise assist in the performance of the commissioner's functions.

The provisions in clauses 14 and 54 give effect to royal commission report recommendation 248, which states, and I quote:

Empower the Children's Commissioner to exercise its statutory powers and functions in relation to such matters, including employing the regime to monitor government responses and recommendations, and escalate the matter to the Minister and Parliament where necessary, at his or her sole discretion.

I seek leave to have the remainder of the second reading explanation incorporated in Hansard without my reading it.

Leave granted.

It is relevant to note that the Commissioner will also be equipped with the power to refer matters (received or identified as part of an inquiry) to relevant authorities, including for example South Australia Police, the Ombudsman or the Independent Commissioner Against Corruption. The Commissioner will also have the capacity to prepare and provide to any Minister reports on matters related to the rights, development and wellbeing of children and young people at a systemic level and publish those reports.

Consequent upon the establishment of the Commissioner will be the abolition of the Council for the Care of Children. The current functions undertaken by the Council for the Care of Children will be consolidated between the functions of the Commissioner and the newly formed Child Development Council, a measure expressly supported in the Royal Commission Report. Established in 2006 pursuant to Part 7B of the Children's Protection Act 1993 and currently led by Chair Mr Simon Schrapel, the Council have done an excellent job listening to, promoting and supporting the rights and voices of children and young people in this State. On behalf of the Government, I wish to take this opportunity to acknowledge and thank both current and former members for their service on the Council for the Care of Children who through their work, haven given a voice to children and young people in South Australia.

Returning to the measures of this Bill, it is logical that the Commissioner be equipped with the powers necessary to access information necessary to the performance of his or her functions. It is proposed to enable the Commissioner to both request de-identified information and require identifying information, dependent on the Commissioner's determination of the required level of detail. This power will be accompanied by penalties for non-compliance and clear confidentiality provisions governing the sharing of such information.

The Bill also reintroduces the concepts of a Child Development Council and Framework for Children and Young People ('framework'), which were key measures in the Government's Child Development and Wellbeing Bill 2014 and supported in the Report. The primary function of the Child Development Council will be, in conjunction with the Minister, the creation and maintenance of an Outcomes Framework for Children and Young People and for reporting on and promoting the framework. As this Bill abolishes the Council for the Care of Children, the Bill also vests the statutory function of reviewing legislation affecting the interests of children in the new Child Development Council.

The framework will guide the Government's work for children and young people across the state. The framework will be developed in consultation with children, young people and families and in close collaboration with state and local government bodies and the relevant industry, professional and community organisations. The Child Development Council will advise Government on the effectiveness of the Outcomes Framework (amongst other important functions) in relation to outcomes for children and young people including their safety, care, health and wellbeing; their participation in education, training, sporting, creative, cultural and other recreational activities.

The Child Development Council and the development of a framework was strongly supported by agencies and organisations originally consulted, prior to the introduction of the Government's Child Development and Wellbeing Bill 2014.The proposed Child Development Council and the framework were also noted by the Royal Commission Report at page 594. While existing legislation regulates and directs service provision for children and young people in specific settings and circumstances, such as in relation to education, care, health and child safety, currently there is no overarching legislative framework with an overall focus on the rights, development and wellbeing of children and young people. This Bill will change that through the implementation of the framework, which pursuant to clause 52, will require every state authority, in carrying out its functions or exercising its powers, to have regard to, and seek to give effect to, the framework.

Whilst the functions of the Guardian and CDSIRC as currently prescribed in the Children's Protection Act 1993 remain unchanged, the Bill strengthens the ability of the Guardian and CDSIRC to not only perform said functions but to escalate matters for further action by referral to the Commissioner. For example, clause 55 of the Bill will empower the Commissioner, Guardian, or Council to require a specified person or body to provide information or documents as may be specified. CDSIRC will also have this power, pursuant to clause 33 of the Bill. A failure to comply with such a notice will constitute an offence, attracting a maximum penalty of a $10,000 fine. Further the aforementioned advocacy and oversight bodes may report the non-compliance to the Minister responsible for the State authority and include details of this in their annual reports.

Another measure in Part 5 of the Bill gives effect to Royal Commission Report recommendation 247, which states that the Guardian and CDSIRC will be empowered to refer matters to the Commissioner, where they are of the view that escalation through statutory powers available to the Commissioner is appropriate. Upon receipt of such a referral, the Commissioner may exercise the power to conduct a systemic inquiry pursuant to clause 12 of the Bill or, require a State authority to submit a report setting out the reasons for the failure or refusal to comply, which in turn must be reported to Parliament, via the Minister.

Recommendation 250 of the Royal Commission Report is also given effect so that the Commissioner, the Guardian and CDSIRC will be permitted to share de-identified data. This will greatly assist in these oversight and advocacy bodies detecting any possible trends or issues and alerting one another for further action to be taken. Importantly, this Bill also includes protections for whistleblowers, to prevent them being victimised because of providing information or intending to provide information under this legislation.

Measures contained in Part 5 of the Bill implement Royal Commission Report Recommendation 251, which states 'amend legislation to empower the Children's Commissioner or the Guardian to make complaints to the Ombudsman and the Health and Community Services Complaints Commissioner (HCSCC) on behalf of a child.' Clause 36 in the Bill, also addresses current obstacles experienced by CDSIRC in being able to communicate or refer concerns of professional misconduct for example, that have arisen in the course of undertaking their statutory functions. Currently CDSIRC is restricted from disclosing information about the circumstances of individual cases to relevant agencies or more broadly.

The final concept addressed in the Bill is clarifying complaint management and the statutory jurisdiction of agencies tasked with this function. As noted by the Royal Commission Report at page 588 to 589:

'At present, people with child protection complaints meet barriers to accessing services with the power to investigate their individual case. Legislative provisions surrounding jurisdiction and standing for complaints to HCSCC and the Ombudsman restrict access by people with legitimate complaints. … HCSCC is strongly orientated towards health services, and focuses on the quality and appropriateness of services provided rather than on administrative acts of decision making. The mandate to inquire into administrative acts, held by the Ombudsman, is more appropriate to the investigation of most complaints relating to child protection service. … Nevertheless, care must be taken to ensure that service-focused complaints which are more appropriately addressed through the HCSCC jurisdiction and focus, or which relate to the provision of health services, still have access to that jurisdiction.'

Finally, Schedule 1, Parts 4 and 5 give effect to Royal Commission Report Recommendations 252 and 253. Recommendation 252 proposes to amend the Ombudsman Act 1972 to ensure that complaints about the actions of government agencies, and other agencies acting under contract to the government, concerning child protection services, find principal jurisdiction with the Ombudsman, and not the HCSCC, where the complaint is about an administrative act. As noted by the Royal Commission Report at page 589 'The mandate to inquire into administrative acts, held by the Ombudsman, is more appropriate to the investigation of most complaints relating to child protection services. … most individual child-protection complaints focus on administrative acts of the Agency.'

Royal Commission Report Recommendation 252 is reflected by two measures in the Bill. Section 13 of the Ombudsman Act 1972 is amended to expressly remove the current barrier to a child protection complaint being investigated by the Ombudsman. Secondly a new provision has been inserted into the Health and Community Services Complaints Act 2004, namely section28A. Section 28A makes clear that the HCSCC must refer a complaint that is a 'prescribed child protection complaint' to the Ombudsman to be dealt with under the Ombudsman Act 1972. The proposed amendments to the Health and Community Services Complaints Act 2004 in the Bill also define 'prescribed child protection complaint'. This definition is necessary to clarify that whilst the Ombudsman will now have principal jurisdiction to investigate prescribed child protection complaints, the HCSCC will still retain jurisdiction in certain child protection complaints concerning a health or community service. Examples of when the HCSCC jurisdiction will be enlivened once these reforms are in effect are: where the child protection complaint does not involve an 'administrative act' as defined under the Act; or is of a kind declared by the regulations not to be included in the ambit of the definition; or is of a class of prescribed child protection complaint this is identified in an administrative arrangement, pursuant to clause 28A(2) of the Bill.

Royal Commission Report recommendation 253 to permit the Ombudsman to exercise the jurisdiction of the HCSCC in appropriate cases is also addressed by means of amendments to section 13 of the Ombudsman Act 1972. This amendment will address the concern raised by the Royal Commission Report at page 588 concerning instances when there is an overlap of jurisdiction between the Ombudsman and the HCSCC, for example a child protection complaint having elements of both an administrative act and concerns regarding quality of service by a health provider.

Currently if jurisdiction is shared, section 13(3) of the Ombudsman Act 1972 excludes the Ombudsman's jurisdiction. This is remedied in the Bill by equipping the Ombudsman, in respect of an investigation into a child protection complaint with any additional powers that the HCSCC would have if the HCSCC were investigating such a complaint. This will enable one body, namely the Ombudsman to deal with the complaint in its entirety, including any concerns regarding the provisions of a health or community service. Section 13 of the Ombudsman Act 1972 is further amended to ensure that a reference to an 'administrative act' will be taken to include a reference to the service activity or omission to which a child protection complaint relates. To avoid any doubt, for the purposes of conducting an investigation of a prescribed child protection complaint, the Ombudsman has the same jurisdiction and may exercise any of the powers of HCSCC as set out under the Health and Community Services Complaints Act 2004.

This Bill constitutes a small part of a wide range of reforms that are required in response to the recommendations made by the Royal Commission Report. As stated, there are more legislative reforms that the Government will be introducing in coming weeks regarding implementation of further Royal Commission Report Recommendations. However, other actions will need to include organisational, policy and cultural changes amongst government agencies and non-government organisations.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

3—Interpretation

This clause defines terms used throughout the Bill.

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

This clause enables criminal liability to be imposed on the Crown for contraventions of the Act.

Part 2—Commissioner for Children and Young People

Division 1—Commissioner for Children and Young People

5—Commissioner for Children and Young People

This clause requires that there be a Commissioner for Children and Young People, and that the Commissioner is independent of any direction or control of the Crown.

6—Appointment of Commissioner

This clause sets out how the Commissioner is to be appointed and removed from office.

7—Appointment of acting Commissioner

This clause enables the Minister to appoint an Acting Commissioner.

8—Delegation

This clause allows the Commissioner to delegate certain functions and powers under the measure.

9—Employees

This clause provides that the Commissioner may employ staff, and that those staff are not public service employees.

10—Use of staff etc of Public Service

This clause enables the Commissioner to make use of services of the staff, equipment or facilities of administrative units of the Public Service.

Division 2—Functions and powers of Commissioner

11—General functions of Commissioner

This clause sets out the functions of the Commissioner. In particular, the Commissioner has the function of conducting inquiries under proposed section 12 into matters related to the rights, development and wellbeing of children and young people at a systemic level. These inquiries may be made into both Governmental and non-Governmental systems.

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

This clause empowers the Commissioner to conduct inquiries of the specified kind into matters related to the rights, development and wellbeing of children and young people at a systemic level, and makes procedural provisions relating to such inquiries.

13—Powers of Commissioner

This clause provides that, in conducting an inquiry under section 12, the Commissioner has all of the powers of a royal commission.

14—Recommendations

This clause provides that the Commissioner may make recommendations having conducted an inquiry under section 12. The clause then sets out how the Government is to respond to such recommendations, including by reporting to Parliament should certain recommendations not be implemented.

Division 3—Reporting

15—Report of inquiry under section 12

This clause requires the Commissioner to report to the Minister following the completion of an inquiry under section 12. The Minister must lay the report before both Houses of Parliament.

16—Commissioner may provide other reports

This clause provides for the Commissioner to make other reports to the Minister. The Minister must lay any such report before both Houses of Parliament.

17—Commissioner may publish reports

This clause provides that the Commissioner may, once a report under this proposed Part has been laid before each House of Parliament and after consultation with the Minister, publish all or part of the report as the Commissioner thinks fit.

Part 3—Guardian for Children and Young People

18—Guardian for Children and Young People

This requires that there continue to be a Guardian for Children and Young People, currently established under the Children's Protection Act 1993.

19—Terms and conditions of appointment

20—Delegation

21—Use of staff etc of Public Service

22—Functions and powers of Guardian

23—Youth Advisory Committee

24—Reporting obligations

25—Guardian may provide other reports

These clauses collectively continue the current procedural arrangements in respect of the Guardian. Those provisions have been relocated from the Children's Protection Act 1993 in accordance with the recommendation of the Royal Commission into child protection systems to locate these provisions into one Act, with slight amendments made to ensure consistency amongst similar provisions under this measure.

Part 4—Child Death and Serious Injury Review Committee

26—Continuation of Child Death and Serious Injury Review Committee

This clause continues the Child Death and Serious Injury Review Committee, established under the Children's Protection Act 1993, in existence following the repeal of that Act.

27—Terms and conditions of members

28—Presiding member

29—Procedures of the Committee

30—Delegation

31—Use of staff and facilities etc

32—Functions of the Committee

33—Powers of Committee

34—Reporting obligations

These clauses collectively continue the current procedural arrangements in respect of the Committee. Those provisions have been relocated from the Children's Protection Act 1993 in accordance with the recommendation of the Royal Commission into child protection systems to locate these provisions into one Act, with slight amendments made to ensure consistency amongst similar provisions under this measure.

Part 5—Referral of matters

35—Guardian or Committee may refer matter to Commissioner

This clause provides that the Guardian or the Committee may refer certain matters of which the become aware to the Commissioner for action under proposed Part 2 of this measure.

36—Commissioner, Guardian and Committee may report, and must refer, certain matters to appropriate body

This clause requires the Commissioner, the Guardian or the Committee to refer matters that raise the possibility of corruption, misconduct or maladministration in public administration to the Office for Public Integrity. The clause also permits those bodies to report matters relating to professional misconduct or unprofessional conduct to the relevant regulatory body.

37—Commissioner and Guardian may make complaints to Ombudsman

This clause enables the Commissioner or the Guardian to report certain matters to the Ombudsman, and for such complaints to be treated as if they were complaints under the Ombudsman Act 1972, and confers such jurisdiction and powers on the Ombudsman in respect of the complaint as the Health and Community Services Complaints Commissioner would have under the Health and Community Services Complaints Act 2004.

38—Commissioner and Guardian may make complaints to Health and Community Services Complaints Commissioner

This clause enables the Commissioner or the Guardian to report certain matters to the Health and Community Services Complaints Commissioner under the Health and Community Services Complaints Act 2004, and for such complaints to be treated as if they were complaints under that Act.

39—Immediate reports to Parliament

This clause enables the Commissioner, the Guardian or the Committee may make a report to the Parliament on any matter related to their functions under this measure if satisfied that the matter raises issues of such importance to the safety or wellbeing of children and young people that the Parliament should be made aware of the matter as a matter of urgency. The clause also makes procedural provision in respect of such reports.

40—Referral of matters to inquiry agencies etc not affected

This clause clarifies the fact that nothing in this measure prevents a matter from being referred to an inquiry agency or any other appropriate person or body at any time.

Part 6—Child Development Council

Division 1—Child Development Council

41—Establishment of Child Development Council

This clause establishes and describes the Council and its composition.

42—Terms and conditions of membership

This clause sets out the terms and conditions of members of the Council, including that they will hold office for 2 year terms and may be reappointed.

43—Presiding member and deputy presiding member

This clause requires the Minister to appoint a presiding member, and deputy presiding member, of the Council.

44—Delegation

This clause is a delegation power in respect of the Council's functions and powers under the measure.

45—Committees

This clause allows the Council to establish committees under the measure.

46—Council's procedures

This clause sets out the procedures of the Council, including a requirement that it meet at least 6 times per calendar year.

47—Commissioner or representative may attend meetings of Council

This clause provides that the Commissioner, or his or her representative, may attend (but not vote in) meetings of the Council.

48—Use of staff etc of Public Service

This clause enables the Council to use public service staff and facilities, in accordance with an agreement with the relevant Minister.

49—Functions and powers of Council

This clause provides that the primary function of the Council is to prepare and maintain the Outcomes Framework for Children and Young People.

This clause also sets out further functions (ie, in addition to preparation of the Outcomes Framework) of the Council under the measure.

50—Reporting obligations

This clause sets out the reports that the Council must make to the Minister, and requires that the Minister to lay the annual report of the Council before Parliament.

Division 2—Outcomes Framework for Children and Young People

51—Outcomes Framework for Children and Young People

This clause requires the Council to prepare an Outcomes Framework for Children and Young People, and sets out procedural matters in respect of the making etc of the framework.

52—Statutory duty of State authorities in respect of Outcomes Framework

This clause imposes a statutory duty on each State authority to have regard, and give effect, to the outcomes framework in carrying out its functions or exercising its functions and powers.

Part 7—Information gathering and sharing

53—No obligation to maintain secrecy

This clause provides that no obligation to maintain secrecy or other restriction on the disclosure of information applies in relation to the disclosure of information to the Commissioner, the Guardian or the Committee under this Act, except an obligation or restriction designed to keep the identity of an informant or notifier secret.

54—Commissioner may require State authority to provide report

This clause enables the Commissioner to require a State authority to prepare and provide a report to the Commissioner in relation to the matters, and in accordance with any requirements, specified in the notice. The clause also makes procedural provision in relation to con-compliance with a requirement by a State authority.

55—Commissioner, Guardian or Council may require information

This clause enables the Commissioner, the Guardian or the Council to require a person or body (whether or not the person or body is a State authority, or an officer or employee of a State authority) to provide to them certain specified information and documents. A failure to comply with a requirement is an offence. The clause also makes procedural provision in relation to non-compliance with a requirement by a State authority.

56—Sharing of information between certain persons and bodies

This clause enables certain specified bodies to freely exchange certain information between each other where the information would assist in the performance of child-related functions and managing risks to children and young people.

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

This clause clarifies the relationship between this proposed Part and the operation of the proposed Public Sector (Data Sharing) Act 2016.

Part 8—Miscellaneous

58—Obstruction etc

This clause creates an offence for a person to obstruct, hinder, resist or improperly influence, or attempt to obstruct, hinder, resist or improperly influence, the Commissioner, the Guardian, the Committee or the Council in the performance or exercise of a function or power under the measure.

59—False or misleading statements

This clause creates an offence for a person to make a statement knowing that it is false or misleading in a material particular (whether by reason of the inclusion or omission of a particular) in information provided under the measure.

60—Confidentiality

This clause is a standard clause preventing confidential information obtained in course of official duties from being disclosed other than in the circumstances set out in the clause.

61—Victimisation

This clause is a standard provision enabling a person who is victimised for having provided information under the measure to take action in respect of the victimisation either as a tort or under the Equal Opportunity Act 1984.

62—Protections, privileges and immunities

This clause limits the liability of persons for the purposes of the measure, and sets out the protections, privileges and immunities applying to certain persons.

63—Service

This clause sets out how documents etc under the measure can be served on a person or body.

64—Regulations

This clause is a standard regulation making power.

Schedule 1—Related amendments and transitional provisions

Part 1—Preliminary

1—Amendment provisions

This clause is formal.

Part 2—Amendment of Children's Protection Act 1993

2—Repeal of Part 7A

3—Repeal of Part 7B

4—Repeal of Part 7C

These clauses make consequential amendments to the Children's Protection Act 1993 in accordance with the recommendation of the Royal Commission into child protection systems to locate the provisions relating to certain bodies into one Act.

Part 3—Amendment of Freedom of Information Act 1991

5—Amendment of Schedule 2—Exempt agencies

This clause amends Schedule 2 of the principal Act to add the Commissioner, the Guardian, the Committee and the Council established or continued under this measure to the list of exempt agencies under that Act.

Part 4—Amendment of Health and Community Services Complaints Act 2004

6—Amendment of section 4—Interpretation

This clause amends the definition of community service to make a consequential amendment.

7—Amendment of section 27—Time within which a complaint may be made

This clause amends section 27 of the principal Act to remove the limitation period for making a complaint where the complaint is made by the Commissioner under this measure.

8—Insertion of Part 4 Division 1A

This clause inserts new Part 4 Division 1A into the principal Act, requiring the Health and Community Services Complaints Commissioner to refer certain complaints under the principal Act relating to children and young people to the Ombudsman.

Part 5—Amendment of Ombudsman Act 1972

9—Amendment of section 13—Matters subject to investigation

This clause amends section 13 of the principal Act to extend the jurisdiction of the Ombudsman to investigate, as the jurisdiction of first choice, complaints relating to administrative acts concerning children and young people.

10—Amendment of section 15—Persons who may make complaints

This clause amends section 15 to disapply the section in respect of complaints made by the Commissioner or the Guardian under this measure.

11—Amendment of section 16—Time within which complaints may be made

This clause amends section 16 of the principal Act to remove the limitation period for making a complaint where the complaint is made by the Commissioner or the Guardian under this measure.

Part 6—Transitional provisions

12—Guardian for Children and Young People

This clause continues the appointment of the current Guardian for Children and Young Persons as the Guardian under the measure.

Standing Orders Suspension

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (11:19): I move:

The suspension of standing orders in order to proceed and continue the second reading debate.

The Hon. J.R. RAU: I have another bill that I wish to introduce. I would prefer to introduce the other bill and then we can get straight back to it. I am happy to do that.

Ms Chapman interjecting:

The Hon. J.R. RAU: Okay, I do not mind. I would prefer to have the other one formally introduced—

The SPEAKER: The deputy leader has moved that standing orders be so far suspended as to enable the bill to pass all stages without delay.

The Hon. J.R. RAU: I am happy with that, but I hope we can do the other one in the same way.

The SPEAKER: There being an absolute majority present, I accept the motion. Is it seconded?

Mr GARDNER: Yes, sir.

The SPEAKER: It is seconded by the member for Morialta. I will put it forthwith.

Motion carried.

Second Reading

Mr MARSHALL (Dunstan—Leader of the Opposition) (11:20): I rise to speak on this bill. I commend the government for bringing this bill to the house. It is a very important bill that will put protections in place for the most vulnerable children in South Australia. The Attorney-General in his second reading speech today made it very clear that there have been multiple recommendations for the establishment of a commissioner for children and young people over many years here in South Australia. He is quite correct.

We remain the only state in Australia without a commissioner for children and young people, and it is about time we fixed this. This was originally a recommendation to this government back in 2003 and, since then, the government has been dragging the chain. I am very proud to lead a party which is in the parliament this week and an opposition which is prepared to sit as long as we need to put the necessary legislation in place to, once and for all, fix our broken child protection system here in South Australia. That is exactly what we will do this week.

No more politics, no more delays, let us just get on with the things which are going to protect the most vulnerable children here in our state. It is interesting to note, though, that, with the Attorney-General's speech, he outlines the various features of this bill. Of course, this is very, very different from the bill which the government had put previously. In fact, it is very, very similar to that bill which has passed in the other place and was back here sitting in the House of Assembly for a long period of time, which was not proceeded with by this government.

This government has made multiple promises to the people of South Australia to establish the very important office of a commissioner for children and young people in this state. Most recently, they promised that they would do this by the end of 2013. We are resolved to make sure that we do everything possible on this side of the house to make sure that this becomes a reality as soon as possible.

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (11:22): I contribute to this debate by simply adding that, in addition to the opposition supporting the passage of this bill, the Attorney-General has been requested during the course of the public consultation on this bill, of which two drafts have been published by the government online, to provide to the opposition a copy of all submissions prepared and submitted by stakeholders and members of the public.

The Attorney-General has written to the opposition confirming that he will consider whether we are allowed to see them or not. I have had no further follow-up from that and I indicate that I find that absolutely shameful. We have been debating this legislation, in a form of reports or drafts, for 13 years under this government and here we come to the pointy end, to the determination by the government that they will actually acquiesce to Margaret Nyland's report and her recommendations and yet, at this end, we are not allowed to see the submissions of stakeholders, of South Australians who, after such a long battle, have presented submissions to the government for amendment.

One thing that I will say that has come from this period of consultation is the removal of what I would consider the scandalous attempt by this government to have the wholly-owned control of who a commissioner should be. If a commissioner is to be independent, as our police commissioner is, and the like, in this state, then they must be appointed through a proper process.

The government has acquiesced to amend that in order to make provision for the Statutory Officers Committee to be able to review the applicants and put recommendations, and secondly to allow for the removal of the officer by this parliament, if ever required, just as we have with the electoral commissioner and other important persons in statutory office. So, that has been included, and I welcome that. We can have argy-bargy about investigative powers, but let's be absolutely clear: the opposition has always said that if we are going to have a commissioner, which we want and which has been recommended from Robyn Layton, it must have investigative powers.

Whether it is for an individual case to determine the reason why something has happened or the purposes of statutory and systemic reform, we must have it in this bill, and we thank Margaret Nyland for having the courage in her report to say to this government and this parliament that this is a necessary prerequisite for the purpose of having a commissioner for children and young people in this state. Well done, Ms Nyland, and thank you for that recommendation. At last, this parliament has an opportunity to pass this important piece of legislation. As for the Attorney-General, I hope he is writing up the advertisement as we speak to get this matter on the road.

Ms SANDERSON (Adelaide) (11:25): I, too, rise to support the government's introduction for the establishment of a children's and young person's commissioner. I also note that this was first recommended in 2003 by Robyn Layton, and it really has taken such a very long time. How many children have been put at risk by that delay? I welcome that this was also followed up by Margaret Nyland in her recent royal commission and I am also very pleased that the government has acted with great haste to bring this through. It is a welcome introduction today.

There were always two things we have been working on with this bill. The Liberal Party introduced a bill to establish a children's commissioner several years ago and there were always two sticking points. They have been addressed in this bill. One of those was the independence of the commissioner. As we know, the person who hires and fires a person makes that office not independent, so if the minister could hire and fire the commissioner, that would not be an independent office. I welcome the fact that the Statutory Officers Committee of the parliament will also be involved in that appointment.

The second sticking point was always the investigative powers. Whilst it was never the intention of the Liberal Party for each individual case to be taken to the commissioner, it was important that an individual case could be investigated if it established a systemic issue. We saw that with the Margaret Nyland report where she had case studies herself. In order to prove a case and to make the changes that are necessary, you must be able to investigate an individual case, and that is all the Liberal Party was ever asking for. I welcome the fact that the government has now finally agreed to both the independence of the office and the investigative powers that the Liberal Party has been asking for for several years.

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Industrial Relations, Minister for Child Protection Reform, Minister for the Public Sector, Minister for Consumer and Business Services, Minister for the City of Adelaide) (11:28): I thank those opposite who have spoken. I thank them for their support and for the brevity and directness of their remarks. I wish the bill a speedy passage.

Bill read a second time.

Third Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Industrial Relations, Minister for Child Protection Reform, Minister for the Public Sector, Minister for Consumer and Business Services, Minister for the City of Adelaide) (11:29): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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