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House of Assembly - Fifty-Third Parliament, Second Session (53-2)
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Bills

Children and Young People (Safety) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 14 February 2017.)

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) (11:03): I wish to thank members for their contributions to the debate. I would like to confirm that, since the bill was last debated, the Attorney-General's Department has conducted extensive briefings and provided to the opposition copies of all public submissions made during the consultation on the draft bill; a table of changes made to the bill as a result of feedback received during the public consultation, which also compares relevant provisions in the current act; and a comprehensive document that addresses a number of questions that were asked at these briefings and were taken on notice.

Furthermore, in recent weeks the government has met extensively with a range of not-for-profit agencies and organisations that are directly involved in advocating for vulnerable children and young people. These meetings have proven invaluable for the government to obtain further understanding of the concerns raised by these groups. In addition, they have enabled the government to work collaboratively to reach an outcome in the form of amendments to the bill and I look forward to elaborating further on this during the committee stage of the bill.

At this point, I also wish to thank various organisations, agencies and groups that have given their time to attend meetings with the government over the last few weeks. On behalf of the government, I am confident that the amendments satisfy most of the concerns raised for the betterment of children and young people that will be the focus of the act. The government will continue to discuss other issues of early intervention and prevention with these groups as this is not the focus of this bill. Indeed, I think minister Close has indicated to those groups that she is looking at that as a separate and distinct project.

Finally, before this bill is progressed to the committee stage, I would seek to clarify two matters. Firstly, I seek to confirm that, in relation to clause 29 of the bill, which concerns the power of the chief executive to refer a matter to a state authority and, where appropriate, give directions and guidance, it is intended to exempt the Guardian for Children and Young People; this will be achieved by regulation.

I also seek to clarify my reference in the second reading to the royal commission recommendations that have been either given effect to or implemented in full or in part in this bill, specifically recommendations 56, 93, 135, 160 and 198. I seek to clarify that there are no specific provisions in this bill that address these royal commission recommendations but, instead, that these are being implemented in accordance with the South Australian government's response to the Child Protection Systems Royal Commission Report.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

Mr PEDERICK: Is the Statutes Amendment (Rights of Foster Parents, Guardians and Kinship Carers) Act 2016 being incorporated into this bill? I did have a discussion with the Minister for Education about the Children and Young People (Safety) Bill and I note that part 9—Miscellaneous, clause 103—Agreement for funeral arrangements of children and young people in care is in there but that the previous clauses are not. I am seeking clarity because, after a couple of years of getting that piece of legislation through, I do not want to lose it.

The Hon. J.R. RAU: I am advised that is not being touched at all; it remains.

Mr PEDERICK: For clarity and to help me legally, if it is not being touched, why is there a need to put clause 103—Agreement for funeral arrangements of children and young people in care into the Children and Young People (Safety) Bill 2017?

The Hon. J.R. RAU: I am advised that it was thought, in drafting, that it sat more comfortably in this than where it was. The balance of the other act to which the member for Hammond refers has not been disturbed and will not be disturbed. As I am advised, this provision has simply been moved from there to here and that is it. It was just thought that it sat more comfortably in this bill than in that act, but otherwise that act is undisturbed and there is no intention to disturb it.

Mr PEDERICK: For final clarity, does that mean it will come out of the Statutes Amendment (Rights of Foster Parents, Guardians and Kinship Carers) Act and just be in this legislation alone?

The Hon. J.R. RAU: That is right, otherwise it would be in two places.

Clause passed.

Clauses 2 and 3 passed.

Clause 4.

Ms SANDERSON: I move:

Amendment No 1 [Sanderson–2]—

Page 9, line 2 [clause 4(3)]—Delete 'traditionally' and substitute 'historically'

This is just a word change. The word 'traditionally' has connotations in Aboriginal and Torres Strait Islander culture and they would prefer that word to be 'historically', which I believe was the intention anyway.

The CHAIR: Is there only one spot in the whole bill where this occurs?

Ms SANDERSON: Yes.

The Hon. J.R. RAU: I have no problem with that; that is fine.

Amendment carried; clause as amended passed.

Clauses 5 and 6 passed.

Clause 7.

The CHAIR: This is the beginning of our tricky bits. The member for Adelaide's amendment [Sanderson-1] 1 seeks to delete all words after the word 'The' in clause 7, page 9, lines 24 to 26. The minister seeks to delete words in the same clause, but later in the paragraph at line 25. To safeguard the minister's amendment, I propose to put the member for Adelaide's amendment in a truncated form as follows. I believe we have spoken to you about this.

Ms SANDERSON: No.

The CHAIR: In which case, you need to listen carefully; I will say this only once. I propose to put the member for Adelaide's amendment in the following truncated form:

to delete all the words after the word 'The' on line 24 up to words 'so far as' on line 25 and substitute the deleted words with the following words:

'best interests of children and young people must always be the paramount consideration in the administration, operation and enforcement of this Act'.

If the member's amendment is agreed to, I will put the remainder of the member for Adelaide's amendment to delete the remaining words in clause 7. If the member for Adelaide's amendment is negatived, I will invite the minister to move his amendment [ChildProRef-5] 1 to delete the words 'so far as is reasonably practicable' on line 25.

What we are looking at initially is for the member for Adelaide to move her amendment [Sanderson-1] 1, but only to delete all the words up to where the minister's proposed amendment will take effect. I am sorry this is all so complicated.

Ms CHAPMAN: Can I ask, Madam Chair, why it is necessary to do that? Why are we not just moving the member for Adelaide's amendment?

The CHAIR: Because it cuts across.

Ms CHAPMAN: Quite clearly, the rules require that any amendments, in order, be presented. If the member for Adelaide wants to move her motion and subsequently the parliament determines in the committee considerations that some other worthy amendment needs to be considered then it would do so in that order.

The CHAIR: I am advised that, because the member for Adelaide's amendment would change the whole clause, it would negate the minister's ability to put his amendment in anywhere.

Ms SANDERSON: My understanding is that the government amendment is to only remove 'so far as is reasonably practicable', so why could that not just be added on to the end of mine? Why can we not move mine and then—

The CHAIR: Because once you do what you do, you finish everything. The reason that the table suggested that we do it this way is that you get to consider both parts.

Ms SANDERSON: Are you suggesting that we now say, instead of the paramount consideration being safety, that the paramount consideration will actually be the best interests of the child, where it is reasonably practicable?

The CHAIR: Let us look at your amendment. Your amendment on schedule (2) to clause 7 deletes the words 'paramount consideration' up to the end of 'harm' and substitutes 'best interests of children and young people must always be the paramount consideration in the administration, operation and enforcement of the act'. So, your problem is with 'so far as is reasonably practicable'?

Ms SANDERSON: Correct.

The Hon. J.R. RAU: Madam Chair, can I just indicate—

The CHAIR: Are you pretending you are superior to my Clerk, who is giving me advice?

The Hon. J.R. RAU: Quite the contrary, I am laying myself at the feet of your esteemed Clerk and saying we all know what we want to do and he knows everything about this matter. We are in his hands as long as, at the end, what is achieved is the will of the parliament.

The CHAIR: Yes, but the way that we get there is the problem. We are looking at amendment 1 on schedule (2), which is to clause 7. If the member for Adelaide moves her amendment, she takes out the whole clause. The minister is happy to keep part of that clause.

The Hon. J.R. RAU: Most of that clause.

The CHAIR: Most of it, in fact.

The Hon. J.R. RAU: So, there is no point in omitting something if you are going to succeed in taking it out.

Members interjecting:

The CHAIR: Order! What the table is trying to assist with is that it is done in segments so that everybody gets the chance to look at the whole clause, which, in the end, will either go up or down when it is amended or not.

Ms CHAPMAN: Can I just place this on the record, Madam Chair. There are a number of amendments tabled in this bill and as they are tabled they are available for the person interested in this bill to view them and identify if there is going to be some problem with further amendment. It is not a situation where we come into committee and are expected to try to salvage subsequent amendments because there has been a failure to convey a concern raised about the removal of a clause.

I appreciate the committee and the Chair and, of course, those advising trying to assist in the orderly management of amendments, but the Attorney and his wealth of advisers should have been alert to the fact that if there is a problem with the complete abolition of this clause then he should be able to salvage some semblance of what he wants in a latter area and convey that to the mover of the motion, who happens to be the member for Adelaide, and have this done in an orderly manner.

It is bad enough that this bill is a complete dog's breakfast as it is, and it is totally rude of the Attorney to come in here and rely on the goodwill of the table in trying to salvage his mess. I have made my point.

The Hon. J.R. RAU: I am not exactly sure what the member for Bragg is doing here because this is actually the member for Adelaide's bill, and the member for Adelaide can speak for herself. However—

Members interjecting:

The CHAIR: Order! I am on my feet. Everyone sit down and be quiet.

An honourable member interjecting:

The CHAIR: Order! I am on my feet. It may not appear that way, as my nose barely comes over the top of the table, but we have several sections and clauses of this bill where the same problem is going to occur, so we need to try to do this in an orderly manner at this point. The table and the Chair are trying to establish some method where all these clauses are done line by line and word for word, rather than en masse. Ultimately, we will vote on the amended clause in any case. We may want to come up and down stairs all morning—that is entirely up to everybody. We are always in your hands and led by you at that point. If you are particularly horrified by the idea of doing it in segments, that is up to you and we will test it, and then everyone will go up and down stairs all morning, or we—

Ms SANDERSON: It would have been good to have it in writing so that I knew what I was looking at.

The CHAIR: All we are trying to say is that when we look at the clause, your amendment takes everything away and the Attorney is trying to leave in almost the last few words of the clause. We can abolish everything and then maybe suspend everything and go away and have this discussion outside, but it is not going to make any great difference, from what I am being told, from doing it in order. It is important to the table to know that you are okay with that.

Ms SANDERSON: Yes, I am fine with that, thank you.

The CHAIR: In that case, we are looking at schedule (2), amendment No. 1 to clause 7 in your name, which you are moving, up to, as we suggested, deleting all the words after the word 'The' on line 24 up to 'so far as' on line 25 and then inserting:

best interests of children and young people must always be the paramount consideration in the administration, operation and enforcement of this Act.

Are you okay with that?

Ms SANDERSON: Yes.

The CHAIR: Do you want to say anything over and above the general purview of what is going to happen?

Ms SANDERSON: Yes, I would like to say why I want to change the paramount consideration to be not only safety but to be in the best interests of the child. This was quite strongly endorsed by many of the stakeholders, such as the Aboriginal Legal Rights Movement and the Law Society, which stated in its notes:

Acting in the best interests of the child and determining what is the child's best interest was regularly noted in the Nyland Report as a key factor. However, the Children and Young People (Safety) Bill 2016 fails to identify 'acting in the best interests of the child' as the paramount consideration or guiding principle in the interpretation and application of the Bill.

All new legislation and amendments to existing legislation under the Children's Rights and Child Protection Agenda should be by reference to the primary obligation of all persons and bodies dealing with children to act in accordance with their obligations under Article 3.1 of the United Nations Convention on the Rights of the Child…which specifies that:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

This was also reiterated by the Law Society, which felt that the Family Law Act provided a suitable model for how the best interests of a child might be determined that considers the benefit of having a meaningful relationship with the parents and the need to protect children from physical and psychological harm, except in instances where the best interests of the child would be to have no direct contact with abusive parents. Article 18 of UNCRC acknowledges the importance of the meaningful relationship of parents, and that was the intention of this amendment.

The Hon. J.R. RAU: This is one of the points of significant remaining difference between the government and the opposition. This is one of those points which has cascading effects throughout the whole pile of amendments that are being offered, and I want to spend a little moment on it. Let us get a couple of things in context. First of all, what is this legislation about? This legislation is about the circumstances in which a child is in such an unsatisfactory position that the coercive power of the state is engaged to remove that child from their parents.

It is difficult to imagine a more intrusive act by the state than going in and taking a child away from their parent or parents. I guess a parallel intervention by the state is the coercive incarceration of an individual because of a conviction for a criminal offence (again, an exceptional interference in the liberty of the individual by the state). So, let us get really clear where we are starting from. This is the most severe interference by the state in what is otherwise an entirely private matter, being the relationship between a parent and/or parents and their children, and therefore it should be used only in the most limited and circumspect of cases.

The Family Court, when it is considering the position of children, is not, as a general rule, considering the circumstances of children where one or both of the alternatives available to that child involves that child being placed in circumstances where that child's future, in terms of their being safe from immediate acute risk of injury or harm, is weighing in the balance. Happily, in most cases where the Family Court is involved, the best interests of the child is probably not an unreasonable criterion, because we are dealing with the court balancing up alternative A, which is not unsafe, and alternative B, which is not unsafe, and the court is asking which of these two broadly satisfactory alternatives is the best offer from the perspective of the child.

That is light years away from what we are talking about here. What we are talking about here is where what is best for the child is a dream. These kids would love to be in a position where what is best for them is what is being argued about. These kids are way past 'what is best for me'; these kids are in a situation where, if the state does not intervene, they are at risk of serious harm, perhaps death. Let us get it clear: this is last resort—absolute last resort, break the glass, press the red button—legislation, and it needs to have that perspective fair and square from the beginning.

In the brief remarks made by the member for Adelaide, she mentioned something about the role of parents. In general terms, I agree that a parent or parents should be very important people when considering what happens to a child, but if that parent or parents have got to the point where they are so derelict in their responsibilities to that child that it is necessary for the state to interfere and get a court order to remove that child, the government takes the view that thereafter that parent or those parents have put themselves in a position where they should not be given special consideration over and above the consideration of the child, and the child should be the complete centre of any further consideration of that matter, including future connection with that parent or those parents, because they have put that child in such an extreme circumstance of disadvantage and risk.

The principle of the best interests of the child is set out in the United Nations Convention on the Rights of the Child. That makes the best interests of the child at least a primary consideration—not necessarily the paramount one—in actions and decisions concerning children. Of course, this UN convention is meant to have general application. It is not a convention specifically about children who are placed in these circumstances.

In the government's view, the bill is absolutely consistent with this on the basis that clause 8 expressly details a range of needs concerning children and young people that are characterised as being in the best interests of the child or young person. Furthermore, clause 8 of the bill is given sufficient status in terms of priorities in the operation, administration and enforcement of the legislation, which is consistent with the convention.

The phrase 'best interests' has been removed, in effect, from the Family Law Act, and there is an attempt to migrate it into this legislation, legislation which, incidentally, is dealing with a completely different set of issues. I also make the point that the amendments sought to be made by the opposition provide no clarification or guidance about what 'best interests of the child' is meant to mean. I have to say that 'best interests of the child' is one of those phrases that in the hands of 50 people will almost certainly receive at least 50 different interpretations and perhaps more. There will be some who will say that the 'best interests of the child' has a particular thing as the main point, whilst others will have a completely different point of view.

What this seeks to do is to introduce massive ambiguity and opportunity for special pleading into the critical decision about whether children will be taken away from their parents. Quite frankly, we should be restricting that removal power of the state to situations where the children are at risk of being harmed, and 'at risk of being harmed' is defined in this legislation. It is not a matter for interpretation. It is not a matter of what one person thinks or another person thinks. This is a highly subjective amendment and I feel strongly about it.

The CHAIR: I can tell, but we are only on clause 7, and the way I see it we have a long way to go.

The Hon. J.R. RAU: Yes, but I am going to be able to say later, 'I refer to what I just said a while ago.' You are not going to have to put up with this again, I promise you, unless it keeps coming. The bill is about child protection, and I think I have made the point that we are trying to be really specific about this. It has nothing to do with the Family Law Act, and the government has indicated that there is an amendment, which was causing us a little bit of anxiety a minute ago, in which we will make it even clearer, by removing the words 'so far as is reasonably practicable'. Those potentially create a bit of ambiguity, so let's take them out. That is where we are going, we want to take them out. That is meant to be—

The CHAIR: You are talking to your own amendment now. Let's just concentrate on the first bit.

The Hon. J.R. RAU: I see. That's a warm-up, Madam Chair.

The CHAIR: No, keep yourself warm and do it in a minute.

The Hon. J.R. RAU: Okay, fair enough. Here is another very interesting point, and this is one I am going to say slowly because I want to emphasise this it. Safety being the paramount consideration in the operation of child protection legislation was introduced into the existing legislation by government amendments in 2015—and here is the bit I want to say very slowly—as a direct response to a recommendation of the Coroner (Mr Johns) arising from the inquest into the death of Chloe Valentine.

The words the opposition are trying to take out right now are the words that they supported putting in. In fact, they demanded that we put them in because those words were recommended by the Coroner. We put them in in 2015 in response to the Valentine case. The opposition are very happy to be seen standing next to Chloe Valentine's grandmother from time to time, endorsing her views on things. Have they asked Belinda Valentine whether she thinks it is a good idea that the Coroner's recommendations about what happened to her granddaughter should be ignored and nullified by the parliament? I do not think so.

Just to make it clear to members opposite, if you vote for the member for Adelaide's amendment, you are voting to say the Chloe Valentine recommendations, which you endorsed two years ago, are no longer relevant. You are saying the Coroner got it wrong in Chloe Valentine when the Coroner reported that the primary consideration must be the safety of the child. Let's get that really clear. It is a pretty simple vote this one.

Do we agree that everything that has happened in child protection since the Chloe Valentine inquest and those recommendations is right? Do we accept that all of the conversation that has occurred around Chloe Valentine's case and the recommendations of the Coroner are right? Do we accept that all of the standing next to Belinda Valentine and other supporters of this initiative over the last two years is right? Or do we say they are all rubbish, we are going to tear them up and we are going to go for some waffle that somebody has tried to graft onto this from the Family Law Act?

That is contrary to the recommendations of the Coroner. It is contrary to what this parliament itself did virtually unanimously two years ago. 'Unanimously', by the way, includes everybody over there. That is what is going on here. The Coroner's recommendation was clear: it was to amend the act:

…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.

The member for Bragg, seldom wrong, on 2 June 2015, not quite two years ago, said, 'Let us hope that in another 10 years' time,' this is two years' time, not quite, but let me stay with it, 'when someone is reading back on this debate,' this is the debate about Chloe Valentine, 'if they are a member of Families SA (or whatever the name of the department is by then)' and these are the important words of the member for Bragg, it is:

…crystal clear to them that safety and protection of the child against harm is the paramount consideration.

Is that me speaking? No. It sounds a lot like the Coroner, but, no, it is not the Coroner: it is the member for Bragg less than two years ago in this place in the debate about endorsing the Coroner's recommendations. Let me read that again:

…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.

I confess that I do not always agree with the member for Bragg, but my goodness she got it right then. She got it dead right—less than two years ago she got it dead right.

All I am saying to the opposition is: if it was good enough for your deputy leader to say that in this place less than two years ago, if that is what we have in this bill, if that is what the act says now because we amended the act in response to Chloe Valentine, with the enthusiastic support of the Deputy Leader of the Opposition, what has changed? What has changed? The answer is that nothing has changed, and that remains the paramount consideration.

It may be that the opposition now no longer considers that the safety and protection of children against harm is the paramount consideration. If so, let's have details, chapter and verse, as to what has changed so much since then. Or is it the case—and I cannot believe this; this would be not possible (well, it is theoretically possible, but it would not have happened)—that the deputy leader could have come in here and said what she said so clearly in June 2015 without the approval of her party room? I cannot imagine that would have happened. That could not have happened.

Or it could be that the Deputy Leader of the Opposition said what she did and still holds that view but has been overruled by the member for Adelaide? Perhaps that is why she was sitting in here a while ago—because she was worried about that. Who knows? Either way, the parliament and the public of South Australia need an explanation, if they intend to pursue this, as to why in the last two years those pretty robust and unequivocal words of the Deputy Leader of the Opposition, speaking in relation to the Valentine amendments, have changed. What has changed?

On this side, we are pretty damn clear about it. The paramount consideration is keeping children safe from harm, full stop, and, to make it even clearer—I know I should not foreshadow an amendment—I will just say that something might be coming. That is all I am going to say. I am not going to go into detail because I do not want to ruin it for people.

I absolutely oppose this amendment. The government completely opposes this amendment, and it is completely inconsistent with all the conversation about this since the Coroner's report in the Valentine case. We will absolutely oppose this and anything of this ilk that is lying ahead of us.

Ms SANDERSON: I would like to respond to that absolute barrage. What has changed in two years? We have had a $6 million royal commission that took two years, with 260 recommendations that this government is choosing to ignore. The government put out a bill late last year in response to the royal commission to which it received 62 submissions. They might as well have received none from the amendments they made after having a fake consultation.

Hardly any amendments were made, so much so that when the final bill came in earlier this year, in February, on the first day of parliament, it was so important that we had to suspend standing orders in order to get this through. So, we were all ready. We were forced to debate a bill we had not even read, that had not even taken into consideration the 62 submissions received by the government. The community was so outraged that it formed groups: the Law Society, SACOSS, the Aboriginal Legal Rights Movement.

Groups of people were forming together to fight this inferior bill because they were concerned about the safety of children and they were concerned that this bill is clearly the ambulance at the bottom of the cliff. This bill does not have any early intervention or prevention. They were so concerned that they are still recommending that we just get rid of the whole bill because we are better off keeping the bill we have from 1993. This bill, in the minds of the stakeholders and the community, is more about protecting the government than protecting children.

To say nothing has changed in two years, after you have spent $6 million on a royal commission that took two years and had 260 recommendations; yes, things have changed, and you have the feedback from the Law Society to say that they have changed. Not only is it implicit for safety, obviously, to be in the best interests of the child, but for you to think that my changing this to be in line with the United Nations Convention on the Rights of the Child and the recommendations of the Law Society, the Aboriginal Legal Rights Movement and other stakeholders, is ridiculous. Of course safety is important, but the paramount consideration should be what is in the best interests of the child—and, of course, safety is in the best interests of the child.

You are being ridiculous in your description to think that I would go against the safety of the child. My amendment is about putting the best interests of the child first and paramount, in line with the United Nations, in line with stakeholder feedback and in line with the Family Law Act. It is very easy to get a determination of what the best interests of a child means, and it certainly includes safety within that, so I stand by my amendment.

The Hon. J.R. RAU: I will not repeat all I said, but I ask the member for Adelaide, at her leisure, to read back what I had to say about the UN convention; this is consistent with that. As for stakeholders in this area—or 'interested groups', as I prefer to call them—all of them have a point of view and all those points of view are legitimate, but just because they come forward with a point of view does not mean they are right. The Law Society, for example, does a lot of good work in providing advice and recommendations about a great many things, but it is not always right either. The Law Society is not the oracle at Delphi and never has been.

The Law Society is a group of individuals who are lawyers who work together. They have subcommittees of lawyers who work together and some of those subcommittees are really well populated by people who know what they are doing and some of them are not quite as good, and some of them have particular agendas they are interested in. That is fine, that is life, but it does not mean they are right, and in this instance they are not. We disagree with them. We agree with the Coroner, we agree with the member for Bragg and we agree that the safety of the child is paramount and should be paramount, full stop, end of story.

If you want to start dealing with other issues, like whether or not children are better at one point or another point when they have the luxury of being able to have that conversation, because the children are not at risk of harm, that is some of the work we are talking about doing in the context of the early intervention legislation, which minister Close has been discussing with these people for some time.

If the member for Adelaide wants to insert, in that conversation, stuff about the best interests of kids and all that sort of stuff, I am not going to complain about that because that is not an unreasonable place for it to be, just like the Family Law Act is not an unreasonable place for it to be. However, we are not dealing here with kids who have a series of alternative, 'reasonable' choices; we are dealing with kids who have no choice at all.

Mr PEDERICK: This is a very serious matter and children and their safety must be absolutely paramount. I do not want to be tricky around this because it is not something to be tricky about, but this bill will relate to both foster children and natural children. The reason I am making this statement is because I am aware of a loving family with three foster children who have recently had them taken away because of a single bruise on one boy's leg.

As a parent, I do not know how many times my kids went to school with bruises because they fell out of trees or fell off a bike, and they were not taken away from me. I stress my point that the safety of children is absolutely paramount. Is it standard practice that one bruise destroys a loving family? I acknowledge that we need to look at the best interests of the child, but I need some clarification around that because, if every child gets taken away for every single bruise, you will need to hire every hotel room in the state.

The Hon. J.R. RAU: The member for Hammond is actually being quite helpful. First of all, I am not going to canvass an individual case because I do not know the circumstances. The member for Hammond is concerned about the power of the state being used to interfere in a relationship between a foster parent, or a natural parent, and the child. The member for Hammond is rightly concerned about the state barging in and disturbing those arrangements. I understand exactly what the member for Hammond is saying; I totally get it, and that is the government's position, too. We are saying that the bar for actually coming in and the state dragging a child out of a house should be high.

There should be another piece of legislation that deals with early intervention and tries to stop it ever getting to that position. The department should be focusing all its energy on trying to stop things ever getting to that position but, if they do get to that position—a last resort, 'hope you never get there' position, which unfortunately does happen all too frequently—then the government has to intervene. The member for Hammond and I are in the same space here, in that the bar for the government going in and intervening should be high.

If we compare the paramount consideration, being safety of the child, with the best interests of the child, guess which one is the higher bar? Member for Hammond, have a guess which one is the higher bar, the paramount consideration being the safety of the child or the best interests of the child. Which one is higher?

Mr Pederick: The best interests of the child.

The Hon. J.R. RAU: Wrong. Go back to square one. If you were on that program on Channel 7, you would not have won your money.

Members interjecting:

The CHAIR: Order!

The Hon. J.R. RAU: Maybe it is as simple as this: the members opposite do not understand what we are talking about here. It is pretty simple.

Members interjecting:

The CHAIR: Order! I am on my feet. Let's try to conduct the debate in perhaps a less inflammatory fashion.

The Hon. J.R. RAU: The highest bar or the paramount consideration is the safety of the child, as defined—(1) it is a high bar and (2) it is a clear bar. Everybody knows where it is because it is defined. The alternative is some waffly concept of the best interests of the child, which can mean anything to anybody. There is no universal view about this and it is a lower bar.

It might be argued that the best interests of the child gets down to whether or not the child gets to do their favourite recreational activities, for instance. I am not saying that is insignificant. It might be very important to the child, but that is not about whether the child lives or dies, or is fundamentally scarred from a physical or psychological point of view; that is about whether the child has optimum or not optimum enjoyment of life. That is a legitimate conversation about the best interests of the child; it is not a conversation about 'safe from harm'.

The CHAIR: The member for Hammond has a further question.

Mr PEDERICK: It is more of a statement. I concur with the member for Adelaide that it is in the best interests of the child that their safety is taken as a priority. I make that statement—and the point I was trying to make earlier—because under the current legislation there is obviously something wrong with the interpretation of what happens out in the field.

The Hon. J.R. RAU: We are dealing here with what I think is called the fallacy of composition: all crows are black, but that does not mean all black things are crows. The situation is that, yes, the physical or emotional harm of children is not in the best interests of a child. Agreed. All crows are black. That does not mean that the best interests of the child finish and are identical with and equivalent to physical or mental harm. One is a very broad, amorphous, undefined proposition and the other is quite specific. What I am saying is that the specific is a little bit of the very, very general. We are saying that the definition should be specific, and the specific deals with harm to children.

In relation to the general proposition, if the member for Hammond is saying, 'If you are looking at the best interests of the child, will it include not hurting the child?' then I agree with him—of course it will. However, it will include a hundred other things as well, things that are no doubt of interest to the child. For example, do they get to participate in team sport? Do they get to participate in the sport of their choosing? That may or may not be in the best interests of the child, but that is at a level of significance in terms of the child's future long-term prospects and far less significant than whether or not the child is immediately likely to suffer physical or emotional harm.

This is where there appears to be a confusion. We are trying to target this at those kids who are really at serious risk of harm. This is child protection legislation; it is not child welfare legislation. This is about children who are in a most dire circumstance.

The CHAIR: So, really, we are debating the use of the words 'best' and 'paramount'?

The Hon. J.R. RAU: No.

Ms Sanderson: Either 'best interests' or 'safety'—

The Hon. J.R. RAU: 'Safe from harm' or 'best interests'. That is really the proposition.

The CHAIR: But the word 'safe' does not appear in here anywhere. We are looking at 'best' or 'paramount'. 'Safe' is not in here.

Ms Sanderson: It must be 'safe from harm' or 'best interests'.

The CHAIR: Yes, but 'paramount' is the word the Attorney is saying supersedes 'best interests'.

The Hon. J.R. RAU: No, the critical words are 'paramount consideration' must always be to ensure that children are 'protected from harm'. The member for Adelaide wants to say 'must be in the best interests of the child'. 'Protected from harm' is one proposition and 'best interests of the child' is the other. The rest is sort of decoration.

The CHAIR: So, the word 'paramount' is not part of the discussion then?

The Hon. J.R. RAU: That is not the main point of the argument.

Ms SANDERSON: In saying that, the Attorney-General has been talking about 'safety', not 'safe from harm'. The definition of 'harm' could be as wide as the definition of 'best interests', because 'harm' could be—

The Hon. J.R. Rau: But it is in the act. You don't have a definition of 'best interests.'

Ms SANDERSON: There is a definition under the Family Court Act.

The Hon. J.R. Rau: Yes, but you don't have that in your amendments.

Ms SANDERSON: Well, we could put it in.

The Hon. J.R. Rau: You haven't done that. You have had plenty of time.

Ms SANDERSON: You have amended your amendments; we could amend it now. I move the amendment standing in my name, as altered.

The CHAIR: We are on clause 7 and looking at [Sanderson-2] 1. We are proposing to move the member for Adelaide's amendment up to the words 'so far as'.

The committee divided on the amendment:

Ayes 19

Noes 23

Majority 4

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

Amendment thus negatived.

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

Amendment No 1 [ChildProRef–2]—

Page 9, lines 25 and 26—Delete ', so far as is reasonably practicable,'

Ms SANDERSON: I will just quote directly the Council for the Care of Children:

'The Bill continues to place safety above the best interests and wellbeing of children and young people, perpetuating a system which makes the removal of more children and young people inevitable. This is unconscionable at a time when our State is struggling to provide adequate care for an increasing number of children and young people entering and remaining in out of home care’ Mr Schrapel said.

Amendment carried; clause as amended passed.

Clause 8 passed.

The CHAIR: We need to draw the Attorney's attention to his schedule (3) and ask whether that has been superseded by his schedule (5). Had you thought of that?

The Hon. J.R. RAU: I am advised that set 1 is withdrawn and we are now proceeding with set 2. Set 1 is gone and set 2 is now what we are going ahead with.

The CHAIR: So, you are withdrawing schedule (3).

The Hon. J.R. RAU: I guess so.

The CHAIR: To say set 2 is another number we do not need up here.

The Hon. J.R. RAU: I am trying to insert new clause 8A.

The CHAIR: Your schedule (3) would be set 1. We do not need another number, so schedule (3) is going. You are withdrawing schedule (3) and now looking at schedule (5) to supersede that.

The Hon. J.R. RAU: That is what they are telling me.

The CHAIR: Everyone is happy with that, so we are now looking at your amendment on schedule (5) at No. 2, which inserts new clause 8A.

New clause 8A.

The Hon. J.R. RAU: Yes, it does. I move:

Amendment No 2 [ChildProRef–2]—

Page 9, after line 35—Insert:

8A—Wellbeing and early intervention

Without limiting a provision of this or any other Act or law, State authorities whose functions and powers include matters relating to the safety and welfare of children and young people must have regard to the fact that early intervention in matters where children and young people may be at risk is a priority.

This is really in response to some of the feedback we had. We were attempting to make it clear that, yes, early intervention is a priority for the state. We want to make it clear that this bill is not intended to be a substitute for or a remedy for or an answer to the needs of early intervention. Indeed, as I said, minister Close has already opened up the conversation with all the concerned groups about having a specific piece of legislation which deals with that space.

However, just to make it abundantly clear, because some people who were looking at the bill somehow misunderstood or were confused or whatever, we want to make it very clear that early intervention is absolutely a terrific thing but that this bill is not the primary place where early intervention is being governed. That is another matter, but a very important matter, and we wanted to formally acknowledge that.

Ms SANDERSON: I would like to make the point that the Attorney-General asked what has changed in two years, in reference to the former clause, yet he is amending his own amendments to a bill that was put out for consultation and amended, only briefly, and then he submitted amendments on 1 March and then amended his own amendments on 28 March. So, things do change —and he is changing his own amendments, so of course things change—that is my only point.

The CHAIR: Any further comment?

The Hon. J.R. RAU: It is a condition of life.

The CHAIR: No further comment really.

New clause inserted.

Clauses 9 and 10 passed.

Clause 11.

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

Amendment No 3 [ChildProRef–2]—

Page 11, lines 9 and 10 [clause 11(2)(b)]—Delete 'with as much self-determination as is reasonable in the circumstances'

I am moving this because we received some feedback from groups indicating some concern about this wording and, rather than have an argument about something that was really by way of explanation rather than anything else, we have decided that we would remove it, so that concern has been satisfied.

Ms SANDERSON: I expect that would mean that my amendment No. 2 to delete subclause (5) would therefore no longer be needed because I believe it has the same intent and that was in response to the complete outrage that was expressed, particularly by Aboriginal groups, and I will read it directly:

This completely undermines the Aboriginal Torres Strait Islander Child Placement Principle as it allows for the child to decide such serious matters of cultural identity before the child has become an adult, thus not being able to truly consider the consequences of such an important decision.

So, I welcome the government's amendment.

Amendment carried.

Ms SANDERSON: I move:

Amendment No 2 [Sanderson–2]—

Page 11, lines 36 to 38 [clause 11(5)]—Delete subclause (5)

Amendment carried; clause as amended passed.

New clause 11A.

Ms SANDERSON: I move:

Amendment No 3 [Sanderson–2]—

Page 12, after line 15—Insert:

11A—State authorities to seek to give effect to United Nations Convention on the Rights of the Child etc.

Each State authority must, in carrying out its functions or exercising its powers, protect, respect and seek to give effect to the rights set out from time to time in the United Nations Convention on the Rights of the Child and any other relevant international human rights instruments affecting children and young people.

Given that it has the same intent, I believe, as what we have just debated at length regarding the definition and what should be paramount—whether it should be risk of harm or the best interests of the child—I move it and know that I am going to lose.

The Hon. J.R. RAU: The member for Adelaide is right. There is a number of her amendments here which are all part and parcel of a similar proposition, and to the extent that we have dealt with the main issue once, there is probably not much point in either of us spending a lot of time in doing it again. I agree with her that this is another example of the original thing so we oppose it.

New clause negatived.

Clause 12.

Ms SANDERSON: I move:

Amendment No 2 [Sanderson-1]—

Page 12, line 27 [clause 12(3)]—Delete 'or the Chief Executive'

The Hon. J.R. RAU: This is the first in a series of amendments that are about another topic. The other topic is about whether in fact the children who are the subject of this legislation should be termed to be 'guardianship of the minister children' or whether they should be 'guardianship of the chief executive children'. Put quite simply, the government's position is that, consistent with every other state, we should have 'guardianship of the chief executive'. The amendment the member for Adelaide is moving presently is to revert that to the present circumstance, which is guardianship of the minister, which is, around Australia, an anomalous position.

We disagree with the member for Adelaide about this, and so this particular conversation is one that will repeat itself because there are a number of places in the legislation where reference to the minister or reference to the chief executive is picked up. If the government's position is maintained, a whole bunch of amendments the member for Adelaide has put forward basically fall away. If the member for Adelaide's position is maintained, a whole bunch of the government's positions are varied, and all her amendments are basically consequential.

In relation to this, I simply say that we disagree with the fundamental proposition, so we will be opposing this. Likewise, this is, from our point of view, a tester for the broader proposition about guardianship of the minister or guardianship of the chief executive.

Ms SANDERSON: Firstly, the Children and Young People (Safety) Bill was in response to the Nyland royal commission. Can the Attorney-General tell me which recommendation refers to the changing from the minister to the CE?

The Hon. J.R. RAU: As far as I know, there was no particular recommendation from the Nyland royal commission pertinent to this point. With all due respect to commissioner Nyland, commissioner Nyland is not the parliament. Commissioner Nyland is not even the drafting committee of the parliament. Commissioner Nyland was a respected royal commissioner who made certain recommendations. That does not mean that the government is confined only to matters raised by her in seeking to put a new bill before the parliament. Nor does it mean that, necessarily, every proposition she puts up we have to bring before the parliament. Overwhelmingly, the government has agreed with the recommendations from commissioner Nyland. We are not saying that this is a product of any recommendation she has specifically put forward about this matter.

Ms SANDERSON: I disagree with the idea that the responsibility of looking after guardianship children should move from the minister to the chief executive. Also, many of the stakeholders were against it. The Guardian for Children and Young People stated:

[There was a] lack of developed rationale for this proposed change...The Guardian is unaware of evidence that substantiates an assertion that designating the Chief Executive as a child's legal guardian achieves better outcomes for children and young people in out of home care.

It continues:

The removal of the Minster as the primary focus for responsibility and accountability leaves them with residual capacities and duties in the Bill.

The Law Society said, and I quote:

The shifting of the responsibility in the Bill for child protection from the Minister to the Chief Executive of Child Protection is a retrograde step...Child protection is far too important for it not to be clearly the responsibility of a Minister in the Bill.

As the future minister, hopefully, in less than a year, I would be more than happy to have the responsibility on my shoulders. I can see that moving it to the CE would be a good way of removing this risk, and I can see why the Labor government might want to do that after 15 years of failing our children.

Just because other states do something, it does not mean it is the right thing to do. We have an ice epidemic in Adelaide; it does not mean that we should all join it. There is no proof. What is the statistical proof that it is better for the child or the young person to be under the guardianship of the CE rather than of the minister, other than risk aversion and moving away from the responsibility of the government, which the Westminster system is built on? The minister must take responsibility for the department. This removes that responsibility, which I believe is in contravention of the Westminster system, and I oppose it.

The Hon. J.R. RAU: Very briefly, if this is contrary to the Westminster system of government, then every other state of the commonwealth is in serious trouble because they have been ignoring Westminster for quite a while. The other thing is that on a day-to-day, practical level, to be completely realistic about it, the chief executive of the department is obviously in more immediate and continuous contact with the agency than the minister.

The minister has all sorts of other duties as well. The minister is not sitting in a position administratively where they are the recipient of all information feeding up through the department as a primary point of contact. The minister is not actually, in any administrative set-up, in the quickest place that information gets to. The minister will ultimately be briefed, I guess, and certainly in these matters, but if you are looking at something that is timely and direct the chief executive is closer to the action than the minister is in a day-to-day, moment-by-moment sense.

We think it is far more consistent with providing that sort of nimble response to circumstances to have the chief executive in this particular frame, and legally so, but it is a point of difference between the government and the opposition. I do not think I can take it much further than that.

Mr GRIFFITHS: I have a further question along this line, minister. I understand the practicalities associated with management and the need to be responsive quickly, but accountability has certainly been a big issue for me, and we have also had the discussion as part of the planning legislation. There have been some modifications there that have gone both ways where I have talked about accountability that requires responsibility.

You referred to other states within the commonwealth and the change they have made by making it the responsibility of the CE. I presume that that has evolved over some time. What evidence, in a practical way, are you able to provide to this committee's discussion about the change in the implication and, I presume, benefits, which is why you have done it, brought by doing this in other states? Have we found a lower incidence of children who have been in harmful places because of the ability of the CE to be responsive immediately and the minister not involved, or is it more some form of a philosophical decision that has been made, seemingly individually but now collectively, to reach that position?

The Hon. J.R. RAU: It is a very good question, and the answer to the question is essentially this. I do not offer the example of other states to prove that there are statistics behind that where you can say, without any question, that those statistics prove that moving it from minister to chief executive improves outcomes. I am not saying that. All I am saying, in response to the proposition that the Westminster system is somehow being destroyed by doing this, is that it is not. That is all I am saying.

In terms of the outcomes, I do not think there is any comparative data of the sort the member for Goyder raises. All I am saying is that it is a matter of common sense. Having the decision-making closer to the action, where the chief executive would be, means that there is potential for a more timely response. Given that that possibility arises from this change, and given the fact that elsewhere around the country it has been done without any serious apparent detriment, although I am not able to point to any massive bonus either—I do not want to overcook it—we think it is an appropriate change.

Amendment negatived; clause passed.

New clause 12A.

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

Amendment No 5 [ChildProRef–2]—

Page 13, after line 18—Insert:

Part 5—Additional functions of Minister

12A—Additional functions of Minister

(1) In addition to any other functions the Minister may have under this Act, the Minister must, in order to promote the wellbeing of children and young people and early intervention where they may be at risk of harm—

(a) promote a partnership approach between the Government, local government, non-government agencies and families; and

(b) promote and assist in the development of co-ordinated strategies for early intervention in cases where children and young people may be at risk of harm; and

(c) promote and support evidence-based programs delivering preventative and support services directed towards strengthening and supporting families and maximising the wellbeing of children and young people; and

(d) promote, encourage or undertake research into matters affecting children and young people; and

(e) generally do such other things as the Minister believes will promote the wellbeing of children and young people, and promote and support early intervention where they may be at risk of harm.

(2) Without limiting a provision of any other Act or law, the Minister must, in relation to the operation of this Act—

(a) collaborate with and assist Aboriginal and Torres Strait Islander communities to develop and implement strategies to ensure that Aboriginal and Torres Strait Islander children and young people are, so far as is reasonably practicable, protected from harm; and

(b) ensure that education relating to the operation of section 28 is made available to persons who are required under that section to report a suspicion that a child or young person is, or may be, at risk; and

(c) promote and support the provision of courses of instruction relating to the prevention of child abuse and neglect by tertiary institutions in this State; and

(d) collect and publish statistical data in relation to the protection of children and young people in this State.

(3) Without limiting a preceding subsection, the Minister must also ensure that—

(a) assistance is provided to evidence-based programs delivering services directed towards strengthening and supporting families and maximising the wellbeing of children and young people; and

(b) those services are offered to children and young people and their families; and

(c) genuine efforts are made to encourage children and young people and their families to avail themselves of the services.

This introduces additional functions to the minister and, broadly speaking, this amendment is responsive to some of the feedback we received about early intervention. Again, I emphasise that the early intervention aspect of things that the minister has already undertaken will be the subject of a separate piece of work in terms of the framework. Just to make it crystal clear that this is not meant to be a substitute for early intervention and that early intervention necessarily should occur before we ever have recourse to this piece of legislation, we are explicitly adding in additional functions of the minister, which essentially go to that early intervention concern.

New clause inserted.

Clause 13.

Ms SANDERSON: I believe my amendment to clause 13 is consequential, so it is no longer required.

Clause passed.

Clause 14 passed.

Clause 15.

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

Amendment No 6 [ChildProRef–2]—

Page 16, after line 15 [clause 15(1)]—Insert:

(ba) there is a likelihood that the child or young person will be removed from the State (whether by their parent or guardian or by some other person) for the purpose of—

(i) being subjected to a medical or other procedure that would be unlawful if performed in this State (including, to avoid doubt, female genital mutilation); or

(ii) taking part in a marriage ceremony (however described) that would be a void marriage, or would otherwise be an invalid marriage, under the Marriage Act 1972 of the Commonwealth; or

(iii) enabling the child or young person to take part in an activity, or an action to be taken in respect of the child or young person, that would, if it occurred in this State, constitute an offence against the Criminal Law Consolidation Act 1935 or the Criminal Code of the Commonwealth.

Ms SANDERSON: I believe we are now discussing putting back in what was in the original 1993 bill in relation to the female genital mutilation. That was then removed and now we are putting a back in.

The CHAIR: We are talking about 'medical or other procedure' at (i).

Ms SANDERSON: Yes, paragraph (ba)(i), and marriage. Marriage was my private member's bill that was rejected last year, but it is now inserted here. I have amendments also drafted, but not in the definition section. I am told that they would do a similar thing. I had the issues of female genital mutilation and child marriage later in the bill. This is under the definition of 'harm', which certainly is one place where it could be put. I believe that it will have the same effect as my amendments were trying to achieve, just not with the extra practical outcomes, such as giving the police the power to go onto a property, to search a property and to remove a passport.

The CHAIR: According to this information at the table, schedule (5) amendment 6 is different from schedule (5) amendment 7 and schedule (2) amendment 4. Schedule (5) amendment 7 and schedule (2) amendment 4 are basically the same. Schedule (5) amendment 6, I am advised, is different from those two. We would be looking at schedule (5) amendment 6 first. Schedule (5) amendment 6 to clause 15 is different from the next two—that is, Attorney's amendment 7 on schedule (5) and your amendment 4 in schedule (2), which, I am told, are the same.

The Hon. J.R. RAU: I think, either way, the gist of it is, we agree on this.

The CHAIR: Yes, but as far as my procedure here, I am looking at schedule (5) amendment 6 first in isolation and then schedule (5) amendment 7 and schedule (2) amendment 4 are the same. You will let the member for Adelaide move her schedule (2) amendment 4, since you have been so chivalrous to do that the first time, and then we will move on to schedule (5) and your amendment 8.

The Hon. J.R. RAU: We are moving this amendment 6 to paragraph (ba), which picks up child marriage. In respect of the offence of mutilating a child, this has always been illegal. Under the Criminal Law Consolidation Act, it is illegal. By definition, somebody who commits an assault or is about to commit an assault on a child would be about to commit harm—by any definition—to the child. This particular amendment is completely unnecessary because it was already covered, but it was something people wanted to see. We are actually restating what, in effect, is the obvious and is already there, but it does no harm because it is only restating what is already the case. With respect to the marriage issue, I think that is something new.

Ms SANDERSON: I think the main difference between something that is illegal being in another act and putting it here is the ability to prevent it from happening. So, whilst it might be illegal to, say, remove a child for a marriage, you cannot prosecute them until it has actually happened and they have actually broken the law, whereas this enables you to prevent it, which I believe is far, far better and definitely required.

The Hon. A. PICCOLO: I have a couple of questions on this clause, but they also relate to subsequent clauses around this topic, in particular paragraph (ba)(i). I would disagree with the member for Adelaide on her interpretation of the existing law. I think the existing law does cover this area quite satisfactorily, even in terms of prevention. That is certainly my understanding from the advice I have in terms of how the existing criminal law is worded.

However, putting that aside, the minister and the member for Adelaide have similar, if not identical, provisions in both clauses in regard to mutilation of a child—amendment 4 of the minister and amendment 14 of the member for Adelaide. My question to both the minister and the member for Adelaide is: do these provisions and subsequent provisions protect boys and children of intersex?

The CHAIR: Who?

The Hon. A. PICCOLO: Protect boys—

The CHAIR: And?

The Hon. A. PICCOLO: —and intersex children.

The Hon. J.R. RAU: I think the member asks a very important question. There does appear to be some difference in the way in which the law presently treats certain cultural practices that affect female children compared with not grossly dissimilar cultural practices that affect male children or, potentially, intersex children. It is actually a very interesting question, and one that perhaps the parliament should look at, because I imagine there are number of people out there who have views about this; in fact, I know there are. I know some in the medical profession have views about this, which they express very stridently.

The CHAIR: It is fair to say that you are speechless.

The Hon. J.R. RAU: I am speechless. A select committee almost recommends itself, Madam Chair.

The CHAIR: What are we going to do, then?

The Hon. J.R. RAU: I think I would like this to go through—

The CHAIR: We will plough on?

The Hon. J.R. RAU: —but I am absolutely speechless about this and I am going to have to reflect on it.

The CHAIR: Between the houses.

The Hon. J.R. RAU: Yes. I cannot guarantee I can solve all the member's problems between the houses, but it certainly requires thinking.

The Hon. A. PICCOLO: The reason I raise this matter in all seriousness is that I think boys and intersex children are discriminated against in this provision and other provisions. People from both sides of the house spent quite a bit of time last year lecturing me and a few other people about the inappropriateness of discrimination, etc., yet this bill and the amendments proposed by the member for Adelaide clearly discriminate against boys and intersex children.

One can only assume—and I can be corrected—that the only reason these provisions are being discussed in this bill, when they are clearly covered in existing law, is a bit of dog whistling. The member for Adelaide went to great lengths in her earlier speeches today to talk about how children's safety is paramount, yet her own amendments allow the non-medical mutilation of boys and intersex children. That is what her amendments do. That is the practical application of what she is proposing today.

The minister has actually responded. The member for Adelaide has chosen not to respond, so I can only assume that either she does not care or it is a case of, 'Well, we are going to jump on the bandwagon and do a bit of dog whistling.' I would like her to explain why her amendments exclude these provisions as well.

Ms SANDERSON: I ask that you withdraw those comments. I allowed the Attorney-General to speak first because it is his amendment. I have every intention of speaking and I was seeking advice from parliamentary counsel. I would ask that you withdraw that I clearly do not care about this and that I have no intention of speaking.

Ms Redmond: And apologise.

Ms SANDERSON: And apologise, yes.

The Hon. A. PICCOLO: Sorry, I have no intention, Madam Chair. In her response she can castigate me.

The CHAIR: Why not withdraw and apologise and you can reserve your right to say it again afterwards if you are not happy? Withdraw and apologise what you are saying now because the member for Adelaide has not spoken—

The Hon. A. PICCOLO: So, it is a conditional withdrawal then?

The CHAIR: No. You are withdrawing it now and you can do something else later on if you do not believe her explanation is satisfactory.

The Hon. A. PICCOLO: I will withdraw until I hear further.

The CHAIR: And apologise.

The Hon. A. PICCOLO: And apologise.

Ms SANDERSON: Firstly, I would like to say that you obviously misheard the whole debate. I was asking that the best interests of a child be paramount and it was your party that wanted 'safety'; 'best interests' was mine. The female genital mutilation was in the original 1993 bill. The government then removed it from this new bill. There was outcry from many of the stakeholders and it has been put back in. I put it back in, along with child marriage, because that was a private member's bill of mine.

Anything that is illegal is still illegal, as the Attorney-General said. This bill and my amendments are all about stopping the removal of a child, so being able to take a passport. FGM really refers mainly to females. However, under law, if it is illegal, it is illegal anyway. What we are addressing is that there are thousands of children still in danger of FGM and child marriage, and they are being removed out of our country to where our laws do not hold any weight. The ability to remove the passport and stop them from leaving was the intent of my amendments.

The Hon. A. PICCOLO: At least the Attorney-General had the courtesy to address the issue I actually asked about. What the member for Adelaide has done in her response is skirt the issue altogether and tiptoe around it. She either did not understand the question or chose to ignore the question. The question remains. I am not disputing that best interest. I am not sure how the mutilation of boys and intersex children is in the best interests of the child, because there is a lack of consent. I do not understand why, if she believed her own bill did not go far enough last time, she did not extend that provision.

As I said, at least the Attorney-General had the courtesy to provide a direct response and actually respond to the question I asked. The member for Adelaide has chosen to ignore the question entirely.

Ms SANDERSON: I would like to respond to that. The amendments that I put in do not relate to what you asked for. If you want those amendments, why not go to the effort of drafting the amendments yourself? This has been in your party room a lot longer than it has been in mine, and you have had plenty of time to speak to your own party, your own Attorney-General. Why not draft the amendments if you have a problem? This not my bill. I am talking to my own amendments. You have asked a legitimate question, you have a legitimate concern—get an amendment drafted. Speak to parliamentary counsel and they will tell you whether it fits in here or not. I am not a lawyer, I am not an SC, I am not the Attorney-General. I have answered to the best of my ability.

The Hon. J.R. RAU: I want to thank the member for Light for his question. I hope I have answered the question, from my point of view, as best as I can. Can I say that in relation to this, though, there was just then a disturbing example of what I am concerned about: that in response to the member for Light, the member for Adelaide said, 'My proposal was that we were talking about the best interests of the child, and that would have picked this up.' If members of the house think about that for a minute—if that is what the member for Adelaide thinks her amendment would achieve—are we really in the business of saying to every Jewish family and every Muslim family that the people from the child protection department should be heading around to their place and knocking on the door because of a cultural practice that is required of those people?

That is a classic example of the elasticity and uncertainty of the concept of 'best interests of the child'. Some people—possibly the member for Light, and a whole bunch of other people, I think, many doctors—would say that particular practice is unsound, unsatisfactory and not in the best interests of the child. We have immediately had bracket creep or net widening—

The CHAIR: Parenthesis creep.

The Hon. J.R. RAU: Parenthesis creep, net widening. So, everybody whose religious orientation requires that particular procedure is by reason of it being now in the 'best interests of the child'—and this, by definition, not being in the bests interests of the child, at least from the point of view of the member for Adelaide—

Ms Sanderson interjecting:

The Hon. J.R. RAU: I am just trying to illustrate the vagaries of that particular phrase, but I commend this anyway.

Amendment carried.

Ms SANDERSON: I move:

Amendment No 4 [Sanderson–1]—

Page 16, line 24 [clause 15(1)(e)]—Delete 'is under 15 years of age and'

This was particularly to have regard to children up to the age of under 18, rather than under 15, as it is at the moment, which is definitely too young.

Amendment carried.

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

Amendment No 8 [ChildProRef–2]—

Page 16, after line 33—Insert:

(4) In this section—

female genital mutilation means—

(a) clitoridectomy; or

(b) excision of any other part of the female genital organs; or

(c) a procedure to narrow or close the vaginal opening; or

(d) any other mutilation of the female genital organs,

but does not include a sexual reassignment procedure or a medical procedure that has a genuine therapeutic purpose;

sexual reassignment procedure means a surgical procedure to give a female, or a person whose sex is ambivalent, genital characteristics, or ostensible genital characteristics, of a male.

(5) A medical procedure has a genuine therapeutic purpose only if directed at curing or alleviating a physiological disability or physical abnormality.

I emphasise again that this is not necessary, but it does no harm because all it does is restate the obvious. If restating it makes people feel better, I am all for that.

Amendment carried; clause as amended passed.

Clauses 16 to 19 passed.

Clause 20.

Ms SANDERSON: I move:

Amendment No 5 [Sanderson–1]—

Page 18, after line 28 [clause 20(1)]—Insert:

(ha) if the child or young person is a member of a particular ethnic, cultural or religious community—a person who is a member of the relevant community and who, in the opinion of the co-ordinator, would be of assistance to the conference;

This is in regard to who may attend a family group conference. I believe, given that Australia is a very multicultural society where we have many religions and many cultural backgrounds, it should be inherent that if there is an appropriate person and the coordinator is of the opinion that they would add value, just as they add value for Aboriginal and Torres Strait Islanders, that should also be offered to other nationalities, ethnicities and religions.

The Hon. J.R. RAU: I oppose the amendment. What this seeks to do is to expand the scope of people entitled to attend a family group conference in respect of a child. Remember that the context of the family group conference in the scheme of the bill is: here are the people who are, for want of a better term, the extended family of the child. What this seeks to do is require, in some circumstances, a person who may not be a member of that group to be included in that group.

I do not particularly see that that is necessary, given that if they are a member of any particular group by definition their extended family will include people who are members of that group. If, for example, the child is an Aboriginal child, that means that members of their extended family, by definition, include Aboriginal people. That is necessary, and a necessary implication of being in a cultural group is that you are part of a cultural group, and therefore those people who are your extended family include members of the group and so on.

The basis for the opposition by the government is that the category of persons would already fall under clause 20(1)(j) which states:

any other person (not being a legal practitioner) who the child or young person, or their parents or guardians, wish to support them at the conference and who, in the opinion of the coordinator, would be of assistance in that role;

Remember that the recommendations of the royal commission are very clear on this child-centric view on how these things should work. If the child is of the view that they need somebody else there, then they can have somebody else there. We already have a tick in the cultural box because the child, if they are of that group, by definition, has extended family who are of that group.

Ms SANDERSON: Can the Attorney-General then please explain paragraph (h) and why that would not also be implicit and why it is different from what I am amending? The intent of my amendment is to do the same thing, just for other cultures.

The Hon. J.R. RAU: I have to say, to be perfectly frank, there are some provisions in this legislation which, a bit like the ones we have had lifted from the Criminal Law Consolidation Act, are there because there is an expectation on the part of some members of the community that those things are there. This is a piece of legislation that a lot of people identify with, and they feel they need to have familiar artefacts in it.

It is not unreasonable, I would have thought, for the Aboriginal community, which is a disproportionately large section of the people who come into interaction with this legislation, to have a strong view about the Aboriginal and Torres Strait Islander placement principles being reflected in some place in the act. So, that is a recognition of the fact that they in particular have a very significant interaction with this. It is something about which they feel strongly; it is therefore in there for that reason.

But I can say to the parliament that even if it were not there, the general principles that are in the act would deliver pretty much the same outcome for those children as they do for any other child. I want to be clear: I do not think that provision being in there actually delivers more to these children than they would have had were it not there, but I recognise that that community is very anxious that a reference to that be in there. In order to satisfy that concern, it is in there. I think it is covered off anyway. It is one of those things where the explicit statement of something gives people more comfort than them being assured the thing is covered.

Ms SANDERSON: Just to be clear then, you believe that paragraph (ha), which I was recommending, is covered adequately in paragraph (j), and you also believe that (h) is also covered in paragraph (j), but it is there because it is a familiar artefact?

The Hon. J.R. RAU: Quite frankly, yes. If you apply the reference 'ethnic, cultural or religious community' to Aboriginal people and then you apply the rules to them, I think you do capture the fact that their family, their extended family and whatever, would be brought into arrangements.

As the member for Adelaide would know from consultations that have gone on, members of the Aboriginal community have very strong views about particular forms of language with which they have become familiar, and the placement principles are one such proposition with which they are familiar and to which they have significant attachment. I am saying that it does no damage and it does no harm, to have it there. I am just saying that, as a matter of law, it probably does not add much but it is a recognition, and that is all.

Amendment negatived; clause passed.

Clauses 21 to 28 passed.

New heading, part 2.

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

Amendment No 9 [ChildProRef–2]—

Page 24, line 3—Delete the heading and substitute:

Part 2—Responding to reports etc that child or young person may be at risk

Ms SANDERSON: My question is whether this has been assessed by stakeholders and their considerations added into it, or whether the government just made it up.

The Hon. J.R. RAU: I guess we made it up, to a point. This is a consequential technical amendment which arises from amendment No. 10, which is the one we are about to come to, the new clause 28A. It is describing the new clause 28A, and it did actually come from community concern regarding action to be taken by the chief executive with regard to reports received by the department. It is describing what follows it, in effect, and that was a response to some feedback.

Ms SANDERSON: Just to be clear, was this where it was changed from 'may cause' to 'must cause' an investigation? You still have 'must assess', but you still have—

The Hon. J.R. RAU: The answer is yes. It is around that conversation, and that is really where we are coming to with the next amendment on 28A—

The CHAIR: Which is your amendment No. 10 on schedule (5).

The Hon. J.R. RAU: —which is amendment No. 10.

The CHAIR: No, we are looking at amendment No. 9, schedule (5), which is putting the heading to allow the next bit to happen. This adds a new heading under clause 28.

New heading inserted.

New clause 28A.

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

Amendment No 10 [ChildProRef–2]—

Page 24, after line 3—Insert:

28A—Chief Executive must assess and take action on each report indicating child or young person may be at risk

(1) The Chief Executive must cause—

(a) each report under section 28; and

(b) any other report or notification made to the Department that a child or young person may be at risk (however described and whether or not received under this Act),

to be assessed in accordance with any requirements set out in the regulations.

(2) The Chief Executive may, in the course of an assessment under this section, make use of or rely on such systems of information gathering, collating or reporting as the Chief Executive thinks fit (whether or not the system is operated or provided by a State authority).

(3) Without limiting any other action that may be taken by the Chief Executive, the Chief Executive must, on completion of an assessment under this section, cause at least 1 the following actions to be taken:

(a) an investigation into the circumstances of the child must be carried out under section 30;

(b) if the Chief Executive is satisfied that an investigation under section 30 is unnecessary, having regard to such of the circumstances of the child as may already be known to the Chief Executive, an alternative response that, in the opinion of the Chief Executive, more appropriately addresses the risk to the child or young person must be implemented;

(c) the matter must be referred to an appropriate State authority under section 29;

(d) if the Chief Executive is satisfied that—

(i) the matter has previously been dealt with under this or any other Act and there is no reason to re-examine the matter; or

(ii) the matter is trivial, vexatious or frivolous; or

(iii) there is good reason why no action should be taken in respect of the matter,

the Chief Executive may decline to take further action.

(4) The Chief Executive must, in accordance with any requirements set out in the regulations—

(a) cause a record of each action taken under this section, and the reasons for the action, to be kept in relation to each report or notification made to the Department; and

(b) include statistical information relating to action taken under this section to be included in the annual report of the Chief Executive under the Public Sector Act 2009.

This amendment is moved in response to feedback received by the government. The amendment will make it clear that the chief executive must assess and take action in relation to either a report received by the department under clause 28 of the bill or by any other means. This is the government's solution to implementing recommendation 63, which is in a way acknowledging the practical realities of work undertaken by the department. It also enhances the ability of the department to provide an alternative response which is better addressed to the particular risk; for example, it might be to refer to another state government agency.

This supports the government's reforms establishing a child safety pathway and child and family assessment and referral networks. The most significant aspect of this is subclause (3), which sets out what options are available to the chief executive once an assessment has been completed. Specifically, the amendment states that at least one of a following list of actions must be undertaken. It is also important to note that the government has imposed transparency measures in this amendment by means of a mandatory requirement on the chief executive to maintain a formal record in relation to each action undertaken. Secondly, the amendment requires the annual report from the department to include statistical information relating to clause 28 of the bill.

In terms of the concerns that have been raised in consultation, people were concerned that there might be a matter raised and the department would simply not even turn its mind to it. We accept that is not okay; that is what the government is saying. The government is saying, 'Yes, that is unacceptable.' However, what we do think is that what is done about the particular matter once it is assessed is not a matter for the parliament to dictate. It is a matter for the people on the ground, who have intimate knowledge of the circumstances and facts pertinent to the particular case, to make a judgement, and we have given them a menu of options from which they can make a selection.

So, the government has listened to the feedback about where these complaints are made they should be the subject of some consideration by the department; they cannot simply not be actioned. However, what we are resisting is the notion that it is for the parliament to determine a sort of one-size-fits-all approach, that a particular action will be the response of every complaint. We are saying, 'Fair enough, have everything dealt with, have everything examined, but, ultimately, for goodness sake let the people on the ground, who are familiar with the particular circumstances, make the decision as to which particular action is appropriate in that case.'

They have to record what they have done. It is not good enough just to say, 'Yes, we got the report, we had a look at it and we decided to do nothing.' You actually have to record, 'Got the report, considered what action to take, decided to do nothing,' if that is what you decide to do, or, 'Decided to refer to SAPOL,' or, 'Decided to do whatever.' So, there will be an audit line that can be filed in the future about how these complaints are being managed within the department and how they fall into the various classes of action, because there will be a written record of that.

Ms SANDERSON: How will the chief executive assess the thousands of calls that do not get answered, and where is that being taken into account? How will that be addressed, the thousands of reports that are not getting through the Child Abuse Report Line? It is good that you must assess the ones that get through, but there are thousands that do not get through. Is there any way of assessing those or addressing those?

The Hon. J.R. RAU: That is a very important point, obviously. The department is taking steps to improve the way in which the CARL and other mechanisms of complaint are functioning. We are not running away from the findings of the royal commission, that those mechanisms have in the past been choked, basically. There is a challenge for the department to work out practical administrative ways of chugging through that amount of information, and that is a work in progress. The government accepts that is a priority for the department. I can assure the member for Adelaide that it is a priority for the department, but the solution to that problem lies in a series of practical, on-the-ground administrative arrangements to be implemented by the department, not in this bill.

New clause inserted.

Progress reported; committee to sit again.

Sitting suspended from 13:01 to 14:00.

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