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House of Assembly - Fifty-Fourth Parliament, Second Session (54-2)
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Children and Young People (Safety) (Miscellaneous) Amendment Bill

Introduction and First Reading

The Hon. R. SANDERSON (Adelaide—Minister for Child Protection) (15:50): Obtained leave and introduced a bill for an act to amend the Children and Young People (Safety) Act 2017 and to make related amendments to the Births, Deaths and Marriages Registration Act 1996. Read a first time.

Second Reading

The Hon. R. SANDERSON (Adelaide—Minister for Child Protection) (15:50): I move:

That this bill be now read a second time.

I am pleased to introduce the Children and Young People (Safety) (Miscellaneous) Amendment Bill 2020, which makes a number of necessary amendments to the Children and Young People (Safety) Act 2017. This bill honours my commitment that I would prioritise a 12-month stakeholder review of the act.

This bill has been developed in consultation with key stakeholders, including government agencies, peak bodies, Aboriginal organisations and representative groups, as well as relevant advocacy and oversight bodies regarding the first year of operation of the Children and Young People (Safety) Act 2017. This bill seeks to progress a series of amendments based on the consultation feedback, noting that there is a requirement under the act for a full review in 2022 when I anticipate a broader public consultation will take place.

The government has closely considered the advice received. The proposed amendments will strengthen the effective and efficient operation of the act and those proposals which received overwhelming stakeholder support. Given the scope of the review, not all proposals have been incorporated at this stage. Some of these have been deferred for consideration under the 2022 legislative review, either because they did not receive widespread support or were of such significance that they warranted further testing and consultation.

I will briefly refer to the key amendments contained in the bill. The first is the insertion of a subsection to ensure those involved in the administration, operation and enforcement of this act work in the best interests of children and young people. Members in this house will be aware that I have consistently advocated that all children and young people in care should expect that those responsible for their care have a focus on the child or young person's best interests, and that implicit in best interests is safety.

A number of stakeholders provided their support for the inclusion of 'best interests' and I am proud to be responsible for its insertion in this bill. While the bill maintains safety as the paramount consideration for the decision-maker, reintroducing 'best interests' is intended to further embed a principled framework which has a child's best interests as a key consideration.

We have responded to the calls of stakeholders and this bill honours the Marshall Liberal government's own commitment to improve outcomes for Aboriginal children and young people. We have elevated our previous commitment to the Aboriginal and Torres Strait Islander Child Placement Principles, at a policy level, to a legislative framework. This embeds into legislation what we aim to achieve in practice. Specifically, the bill:

describes each of the five elements of the Aboriginal and Torres Strait Islander Child Placement Principle; and

embeds the commitment that any person or body performing functions under the act which involve or are related to the placement of Aboriginal children and young people will take active and timely steps to give effect to the principle.

These provisions are intended to ensure that those responsible understand the principle as a framework to guide their actions and that it is the government's commitment to continue to work with its Aboriginal partners towards full implementation of the principle over time.

I reiterate that each of these amendments is an important step as we work with our partners to embed our commitment to achieving the true policy intent of the principle, in the way its implementation was envisaged and articulated by Aboriginal stakeholders. This includes the Secretariat of National Aboriginal and Islander Child Care, more commonly known as SNAICC.

As we keep striving to do better, I want to acknowledge the continuing support and advice of our Aboriginal partners. The bill also includes significant amendments relating to provisions, which will enable the government's adoption from care policy.

Last year, in September I consulted on the practice of adoption from care as one of a range of permanency options in South Australia for children and young people in care. From the outset, I made it clear that adoption for Aboriginal children is not being considered. The Aboriginal and Torres Strait Islander Child Placement Principle will continue to provide the framework for permanency planning for Aboriginal children and young people. As I have stated in the house before, whilst open adoption is not for every individual, it should be considered when it is the child or young person's best interests.

The core messages we heard throughout the consultations were that each child is different, and that decisions to support adoption should be made according to a child's individual circumstances, taking into account their best interests, wellbeing and wishes. This is consistent with the government's child-centred approach to permanency planning in general.

The proposed provisions included in this bill reflect this feedback by providing a specific pathway for adoption for children and young people in care while maintaining appropriate checks and balances. This approach acknowledges the unique circumstances of children under guardianship and the particular importance of permanency and stability to the wellbeing of a child in care.

Every child deserves to live in a safe, loving and secure home for life. Adoption from care as a permanency pathway is a new, exciting and much welcome policy. Open adoption can now be considered as a genuine option when undertaking permanency planning for children and young people in care.

The house will see that the bill amends section 59 of the principal act to limit the orders under which the onus of proof is reversed. This amendment provides that the reverse onus only applies to applications for long term guardianship—specified person orders. As noted, there are a number of small amendments which give greater effect to the principle of timely decision-making, which we know is in the best interests of children and young people.

These include the reintroduction of short-term investigation and assessment orders, consistent with those previously provided for under the now repealed Children's Protection Act 1993. This amendment makes clear that the court may make an order granting custody of the child or young person to the chief executive for a specified period not exceeding eight weeks while an investigation of the circumstances of the child is carried out.

Finally, several minor amendments have been included to provide greater clarity in the administration of the act to support more effective and timely decision-making that will best serve children and young people in care and to remedy some minor technical issues identified following the current act's commencement.

The bill will introduce the rule requiring hearings for court orders to be commenced within 10 weeks of the application. This provides the court with the ability to make short-term custody orders of up to six weeks to allow an investigation of the circumstances of the child or young person to be carried out. It also reinstates the option available under the Children's Protection Act 1993 and will allow urgent applications to be dealt with more expeditiously. The short-term custody order can be extended by up to four weeks if necessary.

Importantly, it removes the potential conflict between the jurisdictions of the Youth Court, the chief executive and the South Australian Civil and Administrative Tribunal (SACAT) in relation to inconsistencies arising over placement of children under guardianship and the application of the general and Aboriginal placement principles.

Finally, I thank my department and all those who have provided me with their comments, feedback and assistance that have enabled this bill to be presented in the house. I would like to thank each of the stakeholders who took the time to contribute to this process and provide feedback. I know we are all united in our goal to achieve the best possible outcomes for children and young people in care. I commend the bill to the house and seek leave to have the explanation of clauses inserted in Hansard without my reading it.

Leave granted.

EXPLANATION OF CLAUSES

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Children and Young People (Safety) Act 2017

4—Amendment of section 8—Other needs of children and young people

This clause inserts a new subsection (4) into section 8 of the principal Act, requiring involved in the administration, operation and enforcement of this Act must, when performing a function or exercising a power in relation to a child or young person, act in the best interests of that child or young person.

5—Amendment of section 11—Placement principles

This clause repeals section 11(4) of the principal Act.

6—Substitution of section 12

This clause inserts a new Part 3A into the principal Act, and makes provision relating to the placement of Aboriginal and Torres Strait Islander children and young people.

7—Amendment of section 34—Chief Executive may investigate circumstances of a child or young person

This clause makes a consequential amendment following the insertion of section 53(1)(ba) into the principal Act.

8—Insertion of section 34A

This clause inserts new section 34A into the principal Act, conferring on the Chief Executive or a child protection officer the specified powers in relation to the investigation of the circumstances of a child or young person under section 34, and creating an offence for a person who refuses or fails to comply with a direction under the new section.

9—Amendment of section 35—Chief Executive may direct that child or young person be examined and assessed

This clause amends section 35 of the principal Act, conferring on the Chief Executive the specified powers in relation to the examination and assessment of children or young people, and creating an offence for a person who refuses or fails to comply with a direction under the new section.

10—Amendment of section 36—Chief Executive may direct person to undergo certain assessments

This clause amends section 36 of the principal Act, conferring on the Chief Executive a power to require certain parents, guardians or other people to undergo a mental health assessment in the circumstances specified.

11—Amendment of section 37—Random drug and alcohol testing

This clause amends section 37 of the principal Act to allow the broadening of categories of forensic material that may be taken or tested in the course of random drug testing.

12—Amendment of section 51—Parties to proceedings

This clause amends section 51(1) of the principal Act to include persons under whose guardianship a child or young person is to be placed, and the Chief Executive, to be parties to certain applications under section 53 of the principal Act.

13—Amendment of section 53—Orders that may be made by Court

This clause inserts new section 53(1)(ba) into the principal Act, allowing the Court to make an order granting custody of the child or young person to the Chief Executive for a specified period not exceeding 8 weeks while an investigation of the circumstances of the child or young person is carried out.

14—Insertion of section 53A

This clause inserts new section 53A into the principal Act, with the new section making special provisions applying to orders made under new section 53(1)(ba).

15—Amendment of section 54—Consent orders

This clause amends section 54 of the principal Act to clarify that it is a party who participates in the relevant proceedings whose consent is required.

16—Amendment of section 56—Adjournments

This clause inserts new s56(1a) into the principal Act, and provides that the Court cannot exercise its general power of adjournment in relation to a contested application such that the period between the lodging of the application and the commencement of the hearing to determine a contested application exceeds 10 weeks.

17—Insertion of section 56A

This clause inserts a new section 56A into the principal Act, limiting the Court's ability to make certain orders relating to contact and placement arrangement for a child or young person.

18—Amendment of section 59—Onus on objector to prove certain orders should not be made

This clause amends section 59 of the principal Act to limit the orders under which the onus of proof is reversed.

19—Amendment of section 77—Temporary placement of child or young person where approved carer not available

This clause inserts new section 77(1a) into the principal Act to allow the Chief Executive to place a child or young person with a person under that section despite it being reasonably practicable to place the child or young person in the care of a particular approved carer if the Chief Executive is satisfied that to do so is preferable to placing the child or young person with the approved carer.

20—Amendment of section 85—Review of circumstances of child or young person under long-term guardianship of Chief Executive

This clause corrects an error in section 85(1)(a) of the principal Act by changing the reference to the 'Minister' to the 'Chief Executive'.

21—Amendment of section 86—Direction not to communicate with etc child or young person

This clause amends section 86 of the principal Act to allow the Chief Executive to direct a person not to be in the company of, or otherwise associate with, a specified child or young person who is in the custody, or under the guardianship, of the Chief Executive.

22—Insertion of Chapter 7A

This clause inserts new Chapter 7A into the principal Act as follows:

Chapter 7A—Adoption of children and young people from care

Part 1—Preliminary

113A—Interpretation

This section defines terms and phrases used in the new Chapter.

113B—Application of Chapter

This section sets out how the new Chapter applies, including by providing that it does not apply to Aboriginal or Torres Strait Islander children and young people.

113C—Modification of Adoption Act 1988

This section sets out a series of modifications to the Adoption Act in relation to adoptions to which the new Chapter applies. In effect, that Act applies as so modified when dealing with an adoption contemplated by the new Chapter.

Part 2—Eligible carers

113D—Eligible carers

This section sets out who is an eligible carer for the purposes of the Chapter.

113E—Assessment of suitability of prospective adoptive parents

This section requires the Court to be provided with the results of an assessment of the suitability of prospective adoptive parents conducted in accordance with any requirements set out in the regulations.

113F—Eligible carer need not be in relationship

This section clarifies that an eligible carer may be a single person, that is they do not need to be in a relationship of a particular kind or at all.

Part 3—Orders under Adoption Act 1988

113G—Applications for adoption

This section sets out who can apply for an adoption order under the Chapter.

113H—Copy of application to be served on birth parents

This section requires copies of an application to be served on the birth parents of a child or young person, and makes provision for where such service is not reasonably practicable.

113I—Consent of certain children and young people required

This section requires, other than where subsection (3) applies, that a child or young person who is older than 12 to consent before an order contemplated by the Chapter can be made.

113J—Consent of birth parent not required

This section clarifies that consent of the birth parents is not required in order to make an order contemplated by the Chapter.

113K—Views of child or young person to be heard

This section requires the Court to give a child or young person to whom an application relates a reasonable opportunity to personally present to the Court their views related to the proposed adoption.

113L—Right of birth parents etc to be heard

This section requires the Court to give the birth parents and siblings of a child or young person to whom an application relates a reasonable opportunity to personally present to the Court their views related to the proposed adoption.

113M—Court to have regard to additional matters

This section sets out additional matters to which the Court must have regard before making an adoption order contemplated by the Chapter.

113N—Child or young person to have legal representation in proceedings

This section requires a child or young person to which an application relates to be legally represented in the proceedings, unless the Court is satisfied that the child or young person has made an informed and independent decision not to be so represented.

113O—Court not bound by rules of evidence

This section provides that, in proceedings under the Chapter, the Court is not bound by the rules of evidence.

Part 4—Miscellaneous

113P—Additional annual reporting obligations

This section imposes annual reporting obligations on the Chief Executive in relation to the operation of the Chapter.

113Q—Minister to review operation of Chapter

This section requires the Minister to review the operation of the Chapter before the fifth anniversary of commencement and to report to Parliament on the review.

23—Amendment of section 152—Sharing of information between certain persons and bodies

This clause amends section 152 of the principal Act to correct an error in the title of the Committee.

24—Amendment of section 157—Internal review

This clause amends section 157 of the principal Act to remove decisions under s 112A of the Act from those that can be reviewed under the section.

25—Amendment of section 158—Review of decisions by South Australian Civil and Administrative Tribunal

This clause amends section 158 of the principal Act to remove decisions under s 112A of the Act from those that can be reviewed under the section, and also prevents the SACAT from being able to require parties to an application from taking part in a compulsory conference under the SACAT Act.

26—Insertion of section 161A

This clause inserts new section 161A into the principal Act, restricting the publication of names and identifying information in relation to certain children and young people.

27—Amendment of section 164—Confidentiality

This clause amends section 164 of the principal Act to include amongst the permissible disclosure of information a disclosure is reasonably required to lessen or prevent a serious threat to the life, health or safety of a person or persons.

28—Amendment of section 167—Evidentiary provision

This clause makes a consequential amendment to the evidentiary provision in section 167 of the principal Act.

29—Amendment of section 168—Service

This clause amends section 168 of the principal Act to allow a notice etc to be served on a child or young person to be left with a parent or guardian etc of the child or young person.

30—Amendment of section 170—Regulations

This amends section 170 of the principal Act to allow transitional or savings regulations to be made.

Schedule 1—Related amendments and transitional provisions Part 1—Amendment of Births, Deaths and Marriages

Registration Act 1996

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

This clause amends section 38A(4) of the Births, Deaths and Marriages Registration Act 1996 to clarify the definition of 'court appointed guardian'.

Part 2—Transitional and savings etc provisions

2—Application of certain provisions to existing applications etc

This clause clarifies the effect of this measure on existing and future applications.

Debate adjourned on motion of Mr Brown.

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