HANSARD
SITTING CALENDAR
SEARCH
LIVE BROADCAST
Hansard Dynamic Subject Index
House of Assembly - Fifty-Third Parliament, Second Session (53-2)
2017-11-14 Daily Xml
Contents
Pdf Xml

Bills

Children's Protection Law Reform (Transitional Arrangements and Related Amendments) 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) (12:33): Obtained leave and introduced a bill for an act to make transitional arrangements and related amendments to various acts consequent upon the enactment of the Child Safety (Prohibited Persons) Act 2016, the Children and Young People (Oversight and Advocacy Bodies) Act 2016 and the Children and Young People (Safety) Act 2017. 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) (12:34): I move:

That this bill be now read a second time.

I seek leave to insert the second reading and explanation of clauses in Hansard without my reading it.

Leave granted.

The Children's Protection Law Reform (Transitional Arrangements and Related Amendments) Bill 2017 (the Bill) makes the transitional arrangements and consequential amendments necessary to commence the Child Safety (Prohibited Persons) Act 2016 (the Prohibited Persons Act) and the Children and Young People (Safety) Act 2017 (the Safety Act). Neither the Safety nor Prohibited Persons Acts include transitional arrangements or consequential amendments to existing legislation. Therefore, before these two Acts can commence, further legislation must be passed.

The Prohibited Persons Act will strengthen background checks for people wanting to work or volunteer with children under 18 years old. It creates a stronger legislative scheme, ensuring that a person who is assessed as being of high risk to the safety of children will be prohibited from working or volunteering with them, and that it is an offence to allow this to occur. The Prohibited Persons Act will also eliminate the current two-tiered arrangement, whereby some organisations relied on a National Criminal History Check instead of a check undertaken through the Department for Communities and Social Inclusion's Screening Unit (the DCSI SU).

The Safety Act will provide the necessary powers for the Chief Executive of the Department for Child Protection (the DCP) to protect children and young people from harm and to make provision for the alternative care of children and young people under the custody or guardianship of the Chief Executive, amongst other measures. Once commenced, the Safety Act will repeal the Children's Protection Act 1993 (the CP Act). The Bill also provides an opportunity to make a number of refinements to the Safety Act at the request of the DCP.

To support the commencement of the Prohibited Persons Act, the Bill provides for transitional arrangements whereby a DCSI SU screening will be recognised as a working with children check under the Prohibited Persons Act for a period of three years from the date it was done. This approach is supported by the recent initiative whereby persons who have undertaken a DCSI SU screening check are subjected to continuous monitoring, so that criminal convictions and child protection data is matched on a daily basis to the DCSI SU database. This recognition does not preclude the prescribed screening unit (the DCSI SU) from undertaking a working with children check and from finding the person to be a 'prohibited person' but it will mean that that a person who has had a DCSI SU screen is not required to re-apply for a working with children check until three years from the date of the DCSI SU screen.

People in the community who currently rely on a criminal history check to volunteer or work with children will also be actively encouraged to obtain a DCSI SU screen prior to the commencement of the Bill.

The registration of teachers is undertaken via the Teachers Registration and Standards Act 2004 (the TRS Act) by the Teachers Registration Board (the TRB).

In order to be employed as a teacher, a person must be registered under the TRS Act. The Bill makes amendments to require any person wanting to be registered as a teacher to have undertaken a working with children check and not be a prohibited person. However, in order to stagger the need for registered teachers to undertake a working with children check, this requirement will only apply at the time that a person applies for registration the first time or is renewing their registration, with registration occurs every three years.

Similar transitional arrangements have been put in place for the other persons, who will not be required to undertake a working with children check on commencement, but will be able to reply on a current criminal history check for a period of 3 years or until their accreditation or registration expires, including:

persons who are employed in a children's services centre under the Children's Services Act 1985;

registered health practitioners as defined under the Health Practitioner Regulation National Law (South Australia);

employees in training centres established under the Family and Community Services Act 1972 (the FACS Act) or the Youth Justice Administration Act 2016;

persons who are the holder of a current accreditation for a passenger transport service operated by the person granted under section 27 of the Passenger Transport Act 1994, the holder of a current accreditation for a driver of a public passenger vehicle granted under section 28 of the Passenger Transport Act 1994 or the holder of a current accreditation for an operator of a centralised booking service granted under section 29 of the Passenger Transport Act 1994.

To support the commencement of the Safety Act, a number of transitional provisions are required.

As mentioned, a number of refinements are proposed to the Safety Act in the Bill, in addition to related amendments to other Acts, for reasons I will now explain.

The Bill amends the Births, Deaths and Marriages Registration Act 1996 (the BDMR Act) by inserting a new provision which will apply specifically to children and young people under the guardianship of the Chief Executive of the DCP. Section 25 of the BDMR Act sets out how parents can apply to register a change of a child's name. Currently under section 25 of the BDMR, parents may apply to the Registrar if:

(a) the child's birth is registered in the State; or

(b) (i) the child was born outside Australia; and

(ii) the child's birth is not registered in another State or Territory; and

(iii) the child has been resident in the State for at least 12 consecutive months immediately before the date of the application.

Section 25(2) of the BDMR Act prescribes the grounds for changing a child's name if there is only one parent provided that:

(a) the applicant is the sole parent named in the registration of the child's birth under this Act or any other law; or

(b) there is no other surviving parent of the child; or

(c) the Court approves the proposed change of name.

Section 25(3) of the BDMR Act states that the Court may, on application by a child's parent, approve a proposed change of name for the child if satisfied that the change is in the child's best interests.

The amendment in the Bill seeks to exclude the operation of section 25 of the BDMR Act and establishes a separate scheme for children and young people under the guardianship of the Chief Executive. I am advised that this amendment is necessary as the current provisions of the Safety Act (yet to commence operation) and the CP Act are ambiguous in relation to whether the Minister or the Chief Executive can make such an application and whether the Court has power to make such an order.

I am advised by the DCP that children and young people under guardianship of the Minister and/or their long term guardians or carers make a formal request of the DCP to change the child's name approximately twice a year. Typically, such a request is made by the child or young person in question (with the support of their guardian), who is aggrieved and saddened by the fact that they do not share the same surname as their guardian and the guardian's family unit. This amendment makes sense to further strengthen the existing measures that promote permanence and a sense of belonging for children and young people under long term guardianship.

The amendment to section 25 of the Births Deaths and Marriages Registration Act 1996 proposes to equip the Chief Executive with an own motion power and/or upon application of the guardian or guardians of the child or young person to the Chief Executive to change the child's name. The Chief Executive may, by notice in writing, direct the Registrar to register a change of the name of a child in relation to whom the section applies. This is a discretionary power of the Chief Executive and when deciding whether to exercise this power by own motion or in response to an application by a guardian, the Chief Executive must consider it whether it is appropriate and in the best interests of the child to do so and must take reasonable steps to notify the parents of the proposed change of name; and have any regard to the any submission made by a parent of the child in respect of the proposed change of name. The same power will also be given to the Court, when considering long term guardianship applications to ensure this matter can be dealt with at the same time if required.

As mentioned, a number of refinements are proposed to the Safety Act in the Bill, which I will now explain. Section 107 of the Safety Act currently states that 'a person must not be employed in a licensed children's residential facility unless the person has undergone a psychological or psychometric assessment of a kind determined by the Chief Executive.' Contravention of section 107 of the Safety Act by an individual or employer attracts a significant monetary penalty.

Pursuant to section 103(d) of the Safety Act, a residential facility or a training centre established by the Minister pursuant to section 36 of the FACS Act is expressly excluded from the definition of 'children's residential facility' set out in section 103 of the Safety Act, thereby omitting these staff from the scope of such testing. To correct this inconsistency, a new provision is required to be added to the Safety Act to capture persons employed in a residential care facility established by the Minister under section 36 of the FACS Act and to make it an offence to employ a person without having undergone such testing. A mirror provision is proposed to be inserted into the Youth Justice Act 2016, to capture persons employed in training centres, where a number of young people under the guardianship of the Minister are also detained..

Another reform measure contained in the Bill is to clarify that that once a long term guardianship order is made pursuant to sections 89 to 91 of the Safety Act, a long term guardian will not be subject to the requirement to obtain a WWCC. This amendment has been drafted to ensure that an exemption from a WWCC is tied to a prescribed child only, so that if the said child leaves the care of that guardian and assumes care of another child under the guardianship of the Chief Executive, a WWCC will again be required.

One of the consequential amendments of the Bill is to delete section 74 of the FACS Act, a provision addressing assistance to persons caring for children, as a result of this matter being dealt with at 112 of the Safety Act. Since the passage of the Safety Act, some have expressed concern that s112 of the Safety Act is not broad enough to capture the breadth of payments made currently by the DCP to support children and young people, which includes carers continuing to care for children who are 18 and over for example. The Bill corrects this.

Another amendment is required to section 164 of the Safety Act, which addresses confidentiality for persons engaged or formerly engaged in the administration, operation or enforcement of the Safety Act. It is proposed to amend section 164 to include an exception which allows the Chief Executive to authorise disclosure of personal information.

A final amendment to the Safety Act concerns liability. As the Safety Act does not contain a provision providing blanket immunity to the Crown, there is a possible argument that the Crown would nevertheless be vicariously liable for the negligent acts of an employee who is responsible for the operation, enforcement or administration of the Safety Act. In order to mitigate this, the Bill amends section 58 of the Safety Act to expressly prescribe that no liability in tort attaches to the Crown, the Minister, the Chief Executive or any other employees of the Department.

Finally, the Commonwealth has identified that the Child Sex Offenders Registration Act 2006 requires amendment to capture four Commonwealth offences related to child exploitation material, namely section 233BAB of the Customs Act 1901 (Cth) and sections 273.5 to 273.7 (inclusive) of the Criminal Code Act 1995 (Cth).

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

4—Interpretation

This clause defines terms used in the measure.

Part 2—Transitional provisions relating to Child Safety (Prohibited Persons) Act 2016

5—Interpretation

6—Expiry of Part

7—Certain applications for assessments of relevant history taken to be application for working with children check

8—Recognition of certain assessments of relevant history as working with children checks

9—Transitional provisions—teachers

10—Transitional provisions—persons employed under Children's Services Act 1985

11—Transitional provisions—health practitioners

12—Transitional provisions—foster parents

13—Transitional provisions—licensed foster care agencies

14—Transitional provisions—licensed children's residential facilities

15—Transitional provisions—employees in training centres etc

16—Transitional provisions—passenger transport services

17—Evidentiary provision

These clauses make transitional provisions in respect of the commencement of the Child Safety (Prohibited Persons) Act 2016.

Part 3—Transitional provisions relating to Children and Young People (Oversight and Advocacy Bodies) Act 2016

18—Interpretation

19—Expiry of Part

20—Continuation of members of Child Death and Serious Injury Review Committee

21—Continuation of chair as presiding member

These clauses make transitional provisions in respect of the commencement of the Children and Young People (Oversight and Advocacy Bodies) Act 2016.

Part 4—Transitional provisions relating to Children and Young People (Safety) Act 2017

22—Interpretation

23—References to working with children checks and the Child Safety (Prohibited Persons) Act 2016 etc

24—Chief Executive to be guardian of certain children and young people

25—Chief Executive to have custody of certain children and young people

26—Continuation of voluntary custody agreements

27—Continuation of approved foster parents as approved carers

28—Continuation of licensed foster care agencies

29—Continuation of licence to maintain children's residential facilities

30—Notifications of abuse or neglect and investigations etc under repealed Act to continue

31—Continuation of family care meetings under repealed Act

32—Orders relating to access to child or young person to continue as determination of Chief Executive

33—Continuation of certain delegations under Family and Community Services Act 1972

34—References to Families SA

35—Application of Chapter 7 Part 8 of Children and Young People (Safety) Act 2017 to certain children and young people

36—Certain policies and procedures taken to satisfy Chapter 8 of Children and Young People (Safety) Act 2017

37—Certain persons the subject of interim registration taken to be approved carers under Children and Young People (Safety) Act 2017

38—Certain commercial carers taken to be approved carers under Children and Young People (Safety) Act 2017

These clauses make transitional provisions in respect of the commencement of the Children and Young People (Safety) Act 2017.

Part 5—Amendment of Births, Deaths and Marriages Registration Act 1996

39—Amendment of section 25—Application to register change of child's name

40—Insertion of section 25A

41—Amendment of section 38A—Notification by court appointed guardians

These clauses make related amendments to the Births, Deaths and Marriages Registration Act 1996 consequent upon the enactment of the Child Safety (Prohibited Persons) Act 2016, the Children and Young People (Oversight and Advocacy Bodies) Act 2016 and the Children and Young People (Safety) Act 2017.

Part 6—Amendment of Carers Recognition Act 2005

42—Amendment of section 5—Meaning of carer

This clause makes a related amendment to the Carers Recognition Act 2005 consequent upon the enactment of the Child Safety (Prohibited Persons) Act 2016, the Children and Young People (Oversight and Advocacy Bodies) Act 2016 and the Children and Young People (Safety) Act 2017.

Part 7—Amendment of Child Safety (Prohibited Persons) Act 2016

43—Amendment of section 5—Interpretation

44—Amendment of section 8—Meaning of assessable information

These clauses make related amendments to the consequent upon the enactment of the Child Safety (Prohibited Persons) Act 2016, the Children and Young People (Oversight and Advocacy Bodies) Act 2016 and the Children and Young People (Safety) Act 2017.

Part 8—Amendment of Child Sex Offenders Registration Act 2006

45—Amendment of Schedule 1—Class 1 and 2 offences

This clause makes a related amendment to the Child Sex Offenders Registration Act 2006 consequent upon the enactment of the Child Safety (Prohibited Persons) Act 2016, the Children and Young People (Oversight and Advocacy Bodies) Act 2016 and the Children and Young People (Safety) Act 2017.

Part 9—Amendment of Children and Young People (Oversight and Advocacy Bodies) Act 2016

46—Insertion of section 13A

47—Amendment of section 26—Functions and powers of Guardian

48—Amendment of section 37—Functions of the Committee

These clauses make related amendments to the Children and Young People (Oversight and Advocacy Bodies) Act 2016 consequent upon the enactment of the Child Safety (Prohibited Persons) Act 2016, the Children and Young People (Oversight and Advocacy Bodies) Act 2016 and the Children and Young People (Safety) Act 2017.

Part 10—Amendment of Children and Young People (Safety) Act 2017

49—Amendment of section 28—Chief Executive to prepare case plan in respect of certain children and young people

50—Amendment of section 32—Chief Executive must assess and take action on each report indicating child or young person may be at risk

51—Amendment of section 33—Chief Executive may refer matter

52—Amendment of section 53—Orders that can be made by Court

53—Amendment of section 90—Long-term care plan to be prepared

54—Amendment of section 103—Interpretation

55—Insertion of Chapter 7 Part 7A

56—Insertion of section 112A

57—Amendment of section 163—Protection of identity of persons who report to or notify Department

58—Insertion of section 166A

59—Amendment of section 170—Regulations

60—Amendment of Schedule 1—Repeal and related amendment

These clauses make related amendments to the Children and Young People (Safety) Act 2017 consequent upon the enactment of the Child Safety (Prohibited Persons) Act 2016, the Children and Young People (Oversight and Advocacy Bodies) Act 2016 and the Children and Young People (Safety) Act 2017.

Part 11—Amendment of Coroners Act 2003

61—Amendment of section 3—Interpretation

This clause makes a related amendment to the Coroners Act 2003 consequent upon the enactment of the Child Safety (Prohibited Persons) Act 2016, the Children and Young People (Oversight and Advocacy Bodies) Act 2016 and the Children and Young People (Safety) Act 2017.

Part 12—Amendment of Criminal Law Consolidation Act 1935

62—Amendment of section 5—Interpretation

63—Amendment of section 49—Unlawful sexual intercourse

64—Amendment of section 50—Persistent sexual exploitation of a child

65—Amendment of section 57—Consent no defence in certain cases

66—Amendment of section 63B—Procuring child to commit indecent act etc

These clauses make related amendments to the Criminal Law Consolidation Act 1935 consequent upon the enactment of the Child Safety (Prohibited Persons) Act 2016, the Children and Young People (Oversight and Advocacy Bodies) Act 2016 and the Children and Young People (Safety) Act 2017.

Part 13—Amendment of Education and Early Childhood Services (Registration and Standards) Act 2011

67—Amendment of section 3—Interpretation

68—Amendment of section 13—Meaning of certain terms in Education and Care Services National Law (South Australia) for the purposes of this jurisdiction

69—Insertion of section 13A

70—Amendment of section 22—Composition of Board

71—Amendment section 23—Conditions of membership

72—Amendment of section 27—Registrars of Board

73—Amendment of section 28—Staff of Board

These clauses make related amendments to the Education and Early Childhood Services (Registration and Standards) Act 2011 consequent upon the enactment of the Child Safety (Prohibited Persons) Act 2016, the Children and Young People (Oversight and Advocacy Bodies) Act 2016 and the Children and Young People (Safety) Act 2017.

Part 14—Amendment of Family and Community Services Act 1972

74—Amendment of section 6—Interpretation

75—Amendment of section 8—Delegation

76—Repeal of Part 2 Division 3

77—Repeal of Part 2 Division 5

78—Amendment of section 23—Special welfare funds

79—Amendment of section 36—Establishment of facilities and programmes for children

80—Repeal of Part 4 Division 2 Subdivision 3

81—Repeal of Part 4 Division 2 Subdivision 4

82—Repeal of Part 4 Division 2 Subdivision 8

83—Amendment of section 98—Liability of near relatives for maintenance of child

84—Amendment of section 99—Issue of summons for maintenance

85—Amendment of section 104—Order for payment of preliminary expenses

86—Amendment of section 105—Where order made during pregnancy

87—Amendment of section 111—Power of Chief Executive to accept settlement in full

88—Amendment of section 117—Order for payment of medical and like expenses

89—Amendment of section 142—Evidentiary provision

90—Amendment of section 145—Variation of order against near relative of child

91—Amendment of section 151—Orders may direct mode of payment

92—Amendment of section 156—Order for delivery of attached property

93—Amendment of section 158—Liability of persons contravening order

94—Amendment of section 159—Collection by police of money due to Chief Executive

95—Amendment of section 160—Caveats

96—Amendment of section 161—Warrant to enforce payments under orders

97—Amendment of section 163—Sale under warrant

98—Amendment of section 164—Assurances to purchaser

99—Amendment of section 165—Issue of warrant without previous demand

100—Amendment of section 166—Effect of payment under warrant

101—Amendment of section 176—Application for attachment of earnings order

102—Amendment of section 177—Employer to make payments under order

103—Amendment of section 179—Discharge, suspension or variation of order

104—Amendment of section 180—Cessation of attachment of earnings order

105—Amendment of section 183—Notice to defendants of payments made

106—Amendment of section 189—Payments by Crown etc

107—Amendment of section 195—Proof of payment or non-payment under maintenance order

108—Amendment of section 197—Collector of Maintenance, Deputy Collector of Maintenance and Assistant Collectors of Maintenance

109—Repeal of section 236

110—Amendment of section 236A—Hindering a person in execution of duty

111—Amendment of section 240—Evidentiary provision

112—Amendment of section 242—Chief Executive may require report

113—Repeal of section 250

114—Repeal of section 250A

115—Amendment of section 251—Regulations

These clauses make related amendments to the Family and Community Services Act 1972 consequent upon the enactment of the Child Safety (Prohibited Persons) Act 2016, the Children and Young People (Oversight and Advocacy Bodies) Act 2016 and the Children and Young People (Safety) Act 2017.

Part 15—Amendment of Intervention Orders (Prevention of Abuse) Act 2009

116—Amendment of section 3—Interpretation

117—Amendment of section 10—Principles for intervention against abuse

118—Amendment of section 16—Inconsistent Family Law Act or State child protection orders

119—Amendment of section 20—Application to Court for intervention order

120—Amendment of section 23—Determination of application for intervention order

121—Amendment of section 26—Intervention orders

These clauses make related amendments to the Intervention Orders (Prevention of Abuse) Act 2009 consequent upon the enactment of the Child Safety (Prohibited Persons) Act 2016, the Children and Young People (Oversight and Advocacy Bodies) Act 2016 and the Children and Young People (Safety) Act 2017.

Part 16—Amendment of Mental Health Act 2009

122—Amendment of section 86—Minister's functions

This clause makes a related amendment to the Mental Health Act 2009 consequent upon the enactment of the Child Safety (Prohibited Persons) Act 2016, the Children and Young People (Oversight and Advocacy Bodies) Act 2016 and the Children and Young People (Safety) Act 2017.

Part 17—Amendment of Residential Tenancies Act 1995

123—Amendment of section 89A—Termination based on domestic abuse

124—Amendment of section 105UA—Termination based on abuse of rooming house resident

125—Amendment of section 112—Restraining orders

These clauses make related amendments to the Residential Tenancies Act 1995 consequent upon the enactment of the Child Safety (Prohibited Persons) Act 2016, the Children and Young People (Oversight and Advocacy Bodies) Act 2016 and the Children and Young People (Safety) Act 2017.

Part 18—Amendment of Spent Convictions Act 2009

126—Amendment of clause 13—Exclusions

127—Amendment of clause 13A—Exclusions may not apply

128—Amendment of Schedule 2—Provisions relating to proceedings before a qualified magistrate

These clauses make related amendments to the Spent Convictions Act 2009 consequent upon the enactment of the Child Safety (Prohibited Persons) Act 2016, the Children and Young People (Oversight and Advocacy Bodies) Act 2016 and the Children and Young People (Safety) Act 2017.

Part 19—Amendment of Summary Offences Act 1953

129—Substitution of section 66V

This clause makes a related amendment to the Summary Offences Act 1953 consequent upon the enactment of the Child Safety (Prohibited Persons) Act 2016, the Children and Young People (Oversight and Advocacy Bodies) Act 2016 and the Children and Young People (Safety) Act 2017.

Part 20—Amendment of Summary Procedure Act 1921

130—Amendment of section 99AAC—Child protection restraining orders

131—Amendment of section 99KA—Special restrictions relating to child protection restraining order proceedings

These clauses make related amendments to the Summary Procedure Act 1921 consequent upon the enactment of the Child Safety (Prohibited Persons) Act 2016, the Children and Young People (Oversight and Advocacy Bodies) Act 2016 and the Children and Young People (Safety) Act 2017.

Part 21—Amendment of Teachers Registration and Standards Act 2004

132—Amendment of section 3—Interpretation

133—Amendment of section 9—Membership of Teachers Registration Board

134—Amendment of section 10—Terms and conditions of membership

135—Amendment of section 21—Eligibility for registration

136—Amendment of section 22—Application for registration

137—Amendment of section 24—Conditions of registration

138—Insertion of section 24A

139—Amendment of section 28—Register

140—Amendment of section 30—Special authority for unregistered person to teach

141—Amendment of section 31—Register

142—Amendment of section 33—Cause for disciplinary action

143—Insertion of section 33A

144—Amendment of section 37—Employer to report dismissal

145—Insertion of section 52A

146—Amendment of section 61—Regulations

These clauses make related amendments to the Teachers Registration and Standards Act 2004 consequent upon the enactment of the Child Safety (Prohibited Persons) Act 2016, the Children and Young People (Oversight and Advocacy Bodies) Act 2016 and the Children and Young People (Safety) Act 2017.

Part 22—Amendment of Youth Court Act 1993

147—Amendment of section 7—Jurisdiction

This clause makes a related amendment to the Youth Court Act 1993 consequent upon the enactment of the Child Safety (Prohibited Persons) Act 2016, the Children and Young People (Oversight and Advocacy Bodies) Act 2016 and the Children and Young People (Safety) Act 2017.

Part 23—Amendment of Youth Justice Administration Act 2016

148—Amendment of section 3—Objects and guiding principles

149—Amendment of section 4—Interpretation

150—Amendment of section 10—Official visitors

151—Amendment of section 14—Training Centre Visitor's functions

152—Amendment of section 43—Community programs

153—Insertion of section 21A

These clauses make related amendments to the Youth Justice Administration Act 2016 consequent upon the enactment of the Child Safety (Prohibited Persons) Act 2016, the Children and Young People (Oversight and Advocacy Bodies) Act 2016 and the Children and Young People (Safety) Act 2017.

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (12:34): I rise to speak on the Children's Protection Law Reform (Transitional Arrangements and Related Amendments) Bill 2017. Essentially, the government requested a meeting yesterday to advise that they would seek to introduce this bill and further undertake procedural orders, as we have just done, to progress it through the House of Assembly forthwith on the basis that, firstly, we have somewhere between six and nine days left of parliamentary sitting for this session and, secondly, it is necessary to pass this legislation to give sufficient workable operation to primary legislation that has been passed in respect of child protection and child safety in the preceding few years. For that reason, we note some urgency if the bill is to have an application that is of some benefit to children as soon as practicable.

I thank those advisers in the Attorney-General's Department who attended yesterday's meeting for the information on a number of transitional matters, but, as we would expect with the government, of course, there are many more amendments that they want to progress from their perspective to make improvements to the legislation. Some we do not necessarily accept as urgent, but, obviously to deal with other aspects, they seek to have them included.

Our party room has not yet seen any advice as to the detail of the bill. The reason for this bill coming in has been explained to them. It is always disappointing to us, obviously, when governments seek that matters be dealt with on the run, but we accept that there may well be some delay in application otherwise and, therefore, we think it is prudent to acquiesce to the government's request on the clear notice that we will consider this matter in more detail over the next week. Now that I have the government's formal detail as to the reason for each of the amendments and the transitional provisions, we will examine those, but there are a few aspects I wish to address while we are here.

The first is part 2, which contains the transitional provisions relating to the Child Safety (Prohibited Persons) Act 2016. Essentially, clauses 5 to 17 in this part, we are told, are designed to allow a staggering of the working with children checks. This is the new description to apply to the procedure that people need to undertake when they are working with children or before they can lawfully commence their employment. This is essentially to be able to deal with the fact that DCSI (Department for Communities and Social Inclusion) is already swamped with the check procedures necessary for people seeking employment and those who are doing volunteer work and the like.

In support of the government, over the years we have set up a process to identify or better identify, as a precautionary measure, and ensure that, where possible, children who may be exposed to someone in a working environment—a local school camp or the like—or volunteers, are protected. This is one measure whereby we can do that. What has been shamefully ignored by the government is that, when you set these rules up and make it a comprehensive application, it actually requires a significant amount of resources.

We have been very disappointed with the government's desire to come in here and make the legislative reform but not actually provide the services to ensure that there is a timely approval of these types of processes to ensure that volunteers do not get bored, in the sense of too lengthy a period of time to be properly processed, and go off and find some other activity. In a voluntary situation, you might lose that person. Even worse off still are people who want to commence employment. They cannot hang around for weeks or months. They have to get on and get some work. The process is unreasonably delayed and they therefore miss out on the opportunity of that employment.

I think the government has to understand that when you go out and make grand statements about protecting children, which we are happy to support, you have to make sure that you put the resources behind it in order for it to happen. Nevertheless, we know that there is a huge backlog, and the whole purpose of these transitional provisions is to allow the government to progressively introduce the new regime up to a period of three years.

Obviously, the logical question from us was: in the meantime, how do you protect those children who are in an environment where we are relying on the old system for their protection? The answer essentially from the government is that there will still be a continual monitoring on a daily data exchange basis. That works on the basis that if somebody is convicted of an offence which may interrupt their capacity to be able to lawfully undertake employment with children, that data is transferred on a daily basis to the relevant unit and they can then notify the employer and set in place a process where there will be a termination or at least a suspension of their employment, and some action can be taken.

We note with some reassurance that that is the general objective, to still be able to protect children while the government gets its act together and makes sure that there is some process. As usual, the government has not consulted anybody other than the Teachers Registration Board, or the Department for Health, or the Department for Child Protection, or the Department of Transport in relation to these areas of employment that are covered—teachers, health practitioners, passenger transport services, etc.

That is always disappointing because the government has to understand that government departments are not the reservoirs of all information, and they are certainly not the repositories of all things that are relevant to this type of reform. It is important that they consult with agencies that deal with children in vulnerable situations—the NGOs and the like. I just do not understand why it is that if legislation passed last year needed transitional provisions—and we are a year or so down the track—that at the very least other agencies have not had a chance to consult about this.

Obviously, because the government are now facing an embarrassing situation near the end of the legislative and calendar year, they have to progress this. We are not here to hold that up, but I make the point that they need to get their act together. They need to understand that they do not know everything in government and that there are other people who can make a sensible contribution to the development of legislation and ought to have an opportunity to do so. As best we can, we will obviously have a look at that in the meantime.

Part 3 relates to transitional provisions relating to the Children and Young People (Oversight and Advocacy Bodies) Act 2016. I almost choked when I saw that in this bill—almost choked—because the government say, 'Look, we need to have a continuation of term of office of the Child Death and Serious Injury Review Committee and the continuation of the chair.' Absolutely—if, in fact, this bill was even operational at all.

As the government well know, after we had had a very long legislative debate (three years in fact) dealing with the question of the appointment of a commissioner for children and young people, with investigative powers—which was the sticking point over a number of years, notwithstanding that Commissioner Nyland and every other body that was relevant to this issue across the care and protection of children had strongly recommended it—the government resisted it to the eleventh hour. Ultimately, when the legislation passed in November last year it proclaimed that almost every operative part of that bill would be suspended.

I almost choked with laughter when I saw that we needed this transitional amendment to be able to get on with that legislation. Well, they have taken a year and still they do not have the regulations in place. Remember that the bill we are talking about, which now has to have these transitional provisions, provided for the appointment of a children's commissioner. Just about every other state in the country has one, so why we needed to take a year to do the regulations is totally beyond me. I will come to what the minister said here in the house.

I am not sure that the Attorney-General was actually available to listen to her answers to questions a week or so ago on this matter, and we are aware that he was attending to some other matters. Of course, they are always available, we recognise that, and I do not in any way make adverse comment on whether he might have been otherwise engaged at the time these particular questions were asked.

The government's excuses for the delay in the implementation of the bill—and, in fact, the reprehensible action of suspending almost every operative part of this act for which they now want a transitional clause—are utterly disgusting, especially when the parliament had made a decision about what should happen not just in the appointment but in the reform of areas of responsibility for the Guardian for Children, for the Child Death and Serious Injury Review Committee (for which they now want to ensure a transitional clause for the continuation of the membership of that committee until their term of appointment has terminated under the current act and the legislation that was to be then redundant) and for an upgrading in relation to a council for children, which I think they were going to give another name. In any event, the substantive legislation of that act, passed over a year ago, has been suspended.

One of the most contemptible aspects—other than in relation to the Commissioner for Children and Young People, which has been almost everything other than her appointment (it happens to be 'her' now that they have been appointed) and their power to have staff and resources and employees and delegation of powers, and they have absolutely no powers to do anything else which this parliament has vested them with—of the proclamation to suspend the operation of this act was to suspend the obligation of all the state authorities to seek to give effect to the United Nations Convention on the Rights of the Child. I cannot even understand why that is necessary.

I cannot understand why any state government that has signed up to the obligation of the United Nations convention that permeates other legislation would move to suspend it. It currently has an obligation under section 5:

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 the United Nations Convention on the Rights of the Child and any other relevant international human rights instruments affecting children and young people.

It is beyond belief. I am almost shocked into silence at the government's decision to suspend that provision.

Since then, I see that an early intervention bill has been tabled in another place to deal with prevention of harm to children. I cannot remember the full name of the bill, but they want to insert in it a very watered-down obligation in relation to the charter—and, again, I am disgusted at that—but nevertheless we will deal with that bill in due course. What is concerning to me is the government's decision to suspend the operation of this legislation.

It has been in prior legislation. It ought to be in the conversion into this principle bill of which we are being asked to do transitional clauses today, and it has not been. So far, we have had no satisfactory explanation from the government as to why they would suspend their commitment to that obligation, and I am appalled by it. I am so appalled that I have written to the Australian Human Rights Commission, and I have raised this with them because I am so utterly disgusted at the government doing such a thing, to not honour that and not even have the decency to come to the parliament and tell us why they did it.

When the minister stood up here like a stunned possum in the spotlight the other day to tell us her pathetic excuses on some other matters, she did not even give an answer to it. She said, 'I haven't had a response. No, I have not had any requests from the human rights commissioner. I do not know anything about that.' I am so utterly disgusted. In the 15 years I have been here, I have never been so disgusted with the government's conduct in contempt of the parliament—never.

It is not going to go away. When I see a bill that has been raced into the parliament to deal with transitional clauses in an act of parliament that has been passed here a year ago, of which they have suspended almost every operative clause, I almost have to choke with indignation at the appalling gall of this government to ask us to do that when they have so disgracefully suspended its operation.

With that, I indicate that overall it is reasonable that we are going to upgrade the rights, obligations, powers and responsibility of the Child Death and Serious Injury Review Committee and the continuation of its chair, Ms Dymphna Eszenyi, who I think does an excellent job. Every year, I read the report and, sadly, about 100 people die in this state. About a third of them are known to welfare agencies. Some die tragically in swimming pool accidents and some have post-birth conditions. Some of them are preventable, in the sense of being accidental, and some children are murdered.

Very sadly, it is a committee that has to trawl through the records and identify whether there are areas of reform or protection that we can enact or whether there are resources that the government should contribute to try to ensure that where possible, where children die or have a serious injury, we do something to try to reduce that risk. Every year, when I read this report, they outline concerns they have about not even having enough resources to get into the list of serious injury. What we end up seeing are reports year after year, which came from the Layton inquiry, probably circa 2003, in which Robyn Layton QC recommended we have a committee of this standard.

Since its operation in around 2004, we get these annual reports and they do an assessment largely focused on the deaths of children because they do not even have enough resources to actually deal with serious injury. Nevertheless, they do a good job. We passed legislation, which was to upgrade their areas of responsibility and protection against interference and all sorts of things, in line with the Nyland inquiry. Obviously, we will be supporting the transition, but mark my words, I am not happy that, a year later, they have not been upgraded.

There are transitional positions in relation to the Children and Young People (Safety) Act 2017 and, again, we are talking about this whole question of working with children checks and the existing DCSI screening services to be able to then deal with the continuation in relation to voluntary custody arrangements, approved foster-parents, licensed foster care agencies, and the licensing continuation for those who are already in a children's residential facilities. The notification processes are to continue.

The family care meetings are to continue. Orders in relation to access to children that were the court's are now to be the chief executive's. There is the continuation of certain delegations under Families SA, certain policies and procedures to satisfy chapter 8, and also some interim registration and the continuation of certain commercial carers being approved carers. These are genuine transitional requirements, on my assessment of the briefing that has been provided, and I do not expect that there will be any issues with those.

Part 5 is the beginning of the amendments, in this case, to the Births, Deaths and Marriages Registration Act. The government suddenly decided that they want to have provisions where children or a carer are able to make an application, reviewable via SACAT, to change the name of a child. I am told that they have a couple a year that come forward to seek negotiation with the Births, Deaths and Marriages Registration Act. Under their procedure, they have the capacity at an administrative level to hear a request, be satisfied of certain things and grant them.

I do not yet have any detail as to whether that has ever been rejected. On the face of it, it does not appear to be, so I am not sure why it is necessary to introduce that. However, some information is to be provided and we will consider it in due course. The assessable information under part 7 adds in new offences and largely, as I understand it, it is to deal with areas of offence such as bestiality, which has accidentally been left out, and some child pornography and overseas offences which quite properly should be incorporated.

I refer to part 9, which is the amendment to the Children and Young People (Oversight and Advocacy Bodies) Act 2016. Most of the operations of this act have been suspended. In this case, they want to be able to deal with the functions and powers of the guardian. There is some material we will need to look at, including the reporting obligations. I am stunned to find that, here we are in mid-November, and we still have not had the report of this newly appointed Commissioner for Children and Young People for April, May and June of this year. She has obligations.

In this bill, the government are asking to bring the commissioner's reporting obligations to the parliament in line with others who report, which is usually in October each year. I think I am right in saying that under the commissioner's provisions she has to report by September; she wants to be in line with everyone else. That might be perfectly reasonable, but for goodness sake, it is November and we still have not seen a report. The commissioner has been operating with no powers of investigation—and not much else, actually. She has been working around the state, going to high schools and visiting and interviewing children, and she has raised an issue in relation to cyberbullying at one of the southern schools.

The commissioner is probably doing quite good work in that regard, but nothing like the extent of obligation and responsibility we invested in her within the act. In any event, if we need to be able to refine that for the purposes of the ultimate implementation of the principal act, ultimately the government can expect that they will have our support. Frankly, they should start complying with the rules that are already in place so that we make sure that we see the material that these people are obliged to produce.

The office of the Commissioner for Children and Young People has been operating since April. It has staff, it has an office and it has a website, which means there is the capacity to be able to tell us what they have been doing. When members look at this issue—which I am sure they will—I am sure some of them will be as disgusted as I am. When you go to the website, you will see the commitment to the obligation of the office of the Commissioner for Children and Young People to recognise United Nations Convention on the Rights of the Child.

It is disgraceful that the government has issued a proclamation to suspend the state authority's obligation on that, yet they parade a commitment to it across their website. I would be very interested to read the commissioner's report on what she and her staff have been doing over the past few months. I seek leave to continue my remarks.

Leave granted; debate adjourned.

Sitting suspended from 13:00 to 14:02.

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