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House of Assembly - Fifty-Fifth Parliament, First Session (55-1)
2024-10-29 Daily Xml
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Children and Young People (Safety and Support) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 16 October 2024.)

Mr TEAGUE (Heysen) (12:11): I rise to speak to the bill and indicate that I will be the lead speaker for the opposition. At the outset, I will indicate that the opposition will not oppose the passage of the bill through the house. I will just flag the opposition's interest, for several reasons that I will talk to in the course of my remarks on the second reading, in further analysis that may be afforded, including by committee inquiry, and that is a matter that is presently under consideration.

This is a matter of some significance and substance and I want to acknowledge the work of the government in bringing the bill to the house and concluding what has really been a very long waiting game. The minister has been, for some time now, promising that significant reform would be presented in the way of legislation. Indeed, it has been a highlight of the agency targets over estimates since the election, and such was the amount of time in which the key relevant review had remained with the minister, from about February 2023, that there has been particular concern in the parliament and by members of not just the opposition but of the crossbench that has heightened over the course of this year in particular. So it is good to have the legislative result, finally, following what has been a long time waiting.

I make the observation as well that the bill is styled as the Children and Young People (Safety and Support) Bill 2024 and, for those who are following the debate and looking to analyse what is new and what has changed, it is a matter of balance that government has decided to style the bill as a 2024 bill, as a new document. For those who are familiar with the 2017 act—the act that was the subject of a legislated review and which provides the existing legislative framework under which child protection is dealt with in this state—it is very much still the structure of what we see that is the subject of the 2024 bill that is now before us.

So if one picks up the 2017 act, or looks at it alongside the 2024 bill, the two are comparable. Changes from one to the other are discernible. I make no particular criticism about a choice of name and structure. There are significant changes that are the subject of the 2024 bill but they are discrete and reflective of, in many ways, a discrete amendment to the 2017 act.

In terms of a further word of broad context, the 2017 act, of course, results from the work that then Deputy Premier John Rau led (and not alone) in terms of taking government responsibility very much in the context of response to extraordinary disastrous circumstances and which included, but not only, the tragic death of Chloe Valentine among several terrible tragedies that shocked the state over the course of years leading up to it. Those events were in turn informed by the Nyland royal commission series of recommendations that resulted from that significant work, and that in turn led to the 2017 bill; that is, the work post 2016 under John Rau led to the 2017 bill.

In terms of guiding principles and structures that informed that legislative process, one point that ought to be highlighted and understood by the community of South Australia is that the paramount principle that was stated to underpin what I will call the 'Rau approach' that led to the 2017 act, was that safety was regarded as the paramount principle that guides all other things that follow in the act. It very much informs then the way in which actions are taken in accordance with the 2017 act, and that extends to the practice and structure of the department in all sorts of ways, this paramount principle of safety.

In the reform process that we have seen that has led to the bill, styled as the 2024 bill, that we have before the parliament, that paramount principle of safety has been retained and it is I think an important matter to dwell on. I will look to come back to it in the committee. I think while there are one or two other headline issues of perhaps controversy, complexity or difficulty, that point, that paramount principle of safety, I think will remain a controversial issue. The question whether that is remaining and abiding as a paramount principle in child protection—and I will stand to be corrected—I think is somewhat unique. If we look to the broader test, we will see that when one applies UN conventions, looks to other jurisdictions and so on, we will see that the best interests of the child is the primary principle.

So the inclusion of the best interests of the child in the 2024 bill is a welcome expression. The question whether to do away with this ongoing stated paramount principle of safety is more than just choosing one virtue over another, and there is certainly more to it than just looking at whether that ought to be removed or brought down the list in terms of priority. But it is important to note at the outset that the government has chosen to stay with what I will call that Rau formulation of paramountcy, of safety, and now to express as a principle alongside but subsidiary to the principle of what is in the best interests of the child.

Again, this may be fleshed out further in the course of the committee as to the reasons why, but it speaks to, for example, the way in which the government, by what it does through the power of the legislation, is driven to things like the priority for reunification, the priority for the support for enabling capacity of parents, and a focus on a range of things that might sit alongside safety or, in certain cases, trump safety, where the best interests of the child are the matters in focus.

It is important to bear in mind at the outset that this bill takes the 2017 paramount principle of safety and restates that that remains as a paramount principle. I suggest that is an area for considerable further debate. I suggest it is a matter that might remain controversial as we all chart a course towards improvement in this very challenging area. So that is the first thing that I want to highlight in a framework way.

The bill introduces a number of discrete references or attempts to recognise some important matters that are particular to child protection. First, in clause 19, it recognises that the challenge of child protection is a whole-of-government challenge, and it provides at least a nod to the need for the Minister for Child Protection to bring together the leaders of different departments.

I think in doing so it highlights just how limited the capacity is for a minister in charge of one portfolio area to direct the conduct of those in other portfolio areas, much less the spending and accountability for funds that may be required from doing so, but it goes there in clause 19 and onward and we see a process by which we can expect to see chief executives coming together, and at least meeting and considering matters that have been brought to attention by the minister. I think to the extent that that happens, we are likely to see at least an elucidation of the sorts of things that are important across departments.

I also mention, as the minister did in the second reading contribution, that, yes, the bill does define in clause 4 and provides in part 7 for a new threshold for mandatory reporting. We have a new test of significant harm, and a definition of 'harm' and 'significant harm' for a variety of purposes that are now applied to be applied, according to the 2024 regime. That is in response to what has been undoubtedly a very large volume of reports that have occurred. It continues to escalate, to the point where the process of receiving reports and then actioning them takes on the sort of character of data and statistical management perhaps more than it does being able to deal with each individual call and to provide the best possible response.

A shift to give a signal that significant harm is the trigger for mandatory reporting is at least an endeavour towards setting a particular threshold for those reports. The practical consequence of that would remain to be seen. If this passes through the parliament, we will see a threshold applied. We will then need to see, importantly, that there is actually a change in the practical landscape. One might say for those who are in a position of mandatory reporting, first of all I had better have a fair amount of certainty as to where the boundary lines are, and some confidence that if I am now not going to start reporting the sorts of things that I have been routinely reporting for years, then I had better have the confidence that I am not going to be on the wrong side of that threshold, and so on.

Those might be matters of practice. I think they come down then to the important work of making sure that people are aware that these are your new obligations; understanding how information is received and treated; and then knowing that everybody who is participating, whether as a mandatory reporter or a receiver of information, is then able to proceed with confidence. Of course the desired outcome is that there is an improvement in the capacity for the department and all others involved to be aware and to be able to respond such that there is an improvement in the capacity to assist vulnerable children.

In terms of those discrete changes, I also draw particular attention to part 8 and the regime therefore and expanding of the articulation of family group conferences, the way in which they are to be convened and the opportunities that are to be afforded. I note that, so far as the part 8 regime for family group conferences is concerned, they remain a matter of discretion for the chief executive. That is not the case pursuant to the new part 4 with respect to Aboriginal children, and I will address that in a moment. But otherwise family group conferences remain a discretionary matter for the chief executive on the one hand and the Youth Court also will have the power to convene a family group conference, but again not necessarily therefore a mandatory early event that might therefore be able to assist all children.

In light of all the evidence we have about family group conferences, I indicate a wholehearted endorsement of the tremendous work they are able to do, alongside other early intervention actions. In addressing family group conferences in particular, I again come back to this point about the retention of the paramount principle being safety. In circumstances where the paramount principle was the best interests of the child, I have no doubt that would augur towards an even greater emphasis on family group conferences. We know the tremendous work they can do.

They also demonstrate and exemplify the kind of all around involvement with a vulnerable child that follows from a 'best interests of the child' principle; that is, all of those people, carers, friends or family who have a responsible interest in looking after the child can have an important role. Family group conferences and the successes they have had demonstrate that, where that broader community has a means of getting involved and getting involved early, then better things can follow than the alternative.

The part of the bill that is new is part 4. Part 4 provides for additional provisions commencing at clause 39 and really occupies the bulk of the additional substance of the bill when compared with 2017 and is to be found the subject of part 4. It provides for additional provisions relating to Aboriginal and Torres Strait Islander children and young people and includes a range of practical measures, including—and I have just addressed family group conferencing—rendering mandatory every best effort to convene a family group conference. It includes a range of practical matters to apply measures that are responsive to Aboriginal culture and community, kinship and those matters that may lead to particular benefit to Aboriginal and Torres Strait Islander children.

This is an area of legislating that really is new. I do not say that to be any more critical than that at the outset. It is true that Aboriginal children are substantially over-represented by reference to the overall population among the cohort of children in out-of-home care. It is true that Aboriginal and Torres Strait Islander children are in need of the most careful scrutiny of what can be done to respond to their needs and to ensure their wellbeing in terms of the response of the Department for Child Protection, and so it is unsurprising that there is this new part of the regime, the subject of part 4.

What is particularly novel and, one might say, courageous is division 4 of part 4, which provides for, really, a form of subset of the department to be formed insofar as it provides the means for two steps to occur. First, in clause 49, it provides for the minister to be empowered to recognise certain Aboriginal and Torres Strait Islander entities for the purposes of the functions the subject of this part in particular.

I will just focus on clause 49 for a moment. It is really very broad. It provides that the minister may, either on an application by a third party—they are termed an 'eligible entity'—or indeed on the minister's own motion and after undertaking consultation, recognise a third party, recognise an 'eligible entity', as a recognised Aboriginal or Torres Strait Islander entity for the purposes of the act. Having done so, the process then proceeds, the subject of division 5 of part 4, to provide for the chief executive of the department to delegate a certain specified function or, indeed, a range of functions of an identified class to a recognised Aboriginal or Torres Strait Islander entity or to a specified member of a recognised Aboriginal or Torres Strait Islander entity.

That is a fairly broad kind of delegation power. Then, in clause 51, the bill provides that the costs of the recognised Aboriginal or Torres Strait Islander entity performing delegated functions are to be borne by the Crown. So there are three steps: the minister in clause 49—'recognises' is the word used in the clause—designates an entity for these purposes, the chief executive can then delegate a function or functions to that entity, and the Crown bears the cost of that entity undertaking the delegated functions.

That is really quite a substantial novelty. It is quite a substantial change in the way that the responsibilities of the minister and the chief executive—indeed, of the government—are discharged in terms of the practical actions of the department. I know it has been queried by stakeholders in terms of its broadness, its general application. There may be an opportunity for some clarity in committee about what entities may look to be immediately eligible or likely.

But I suppose the broad question that stakeholders raise, and which might be apparent on the face of it, is: on the one hand, at what point is it a delegation in order to ensure that services and functions that are within the responsibility of government are performed all the more effectively and, on the other hand, to what extent without more is there a risk that this might be an abdication of such responsibilities by government? I say that against the background that it is undoubtedly a new approach, so it is a significant step that I think will remain an issue of some focus once entities are designated and functions then, in turn, are delegated.

I have already mentioned that among those additional provisions the subject of part 4—the practical functions that constitute part of part 4—we see special provisions for family group conferences. There is also articulated in the new part 4 continuing adherence to the Aboriginal and Torres Strait Islander Child Placement Principle; it is the subject of clause 44. There are then particular arrangements for case planning, for placement and for reviews of contact arrangements. As I indicated, all of that is new.

The feedback—not only the feedback following the first circulation of a draft of the bill some weeks ago but, indeed, for a sustained and some considerable period of time from carers and those who are engaged in all sorts of ways and outside of government in particular—has highlighted a need for a complaints mechanism that is both effective and on an even playing field that is accessible to those outside of government. So we have seen calls for an independent complaints mechanism, and there will be many in the community who will be disappointed to see that the bill does not include provision for any overall independent complaints mechanism.

Referring to part 3, division 3, clause 27, the bill provides for a quality of care report. The bill sets out guidelines under which the chief executive is obliged to establish and publish. Those quality of care report guidelines are the subject of a whole range of mandatory components, including, among other things:

…the process by which a quality of care report is to be assessed…

…the actions which must be taken in response to a quality of care report; and

…the ways in which procedural fairness is to be afforded in relation to a quality of care report…

I make particular reference to that and also appreciate that the government has clearly given some consideration to what an independent complaints mechanism might look like. I think we have seen iterations, over recent weeks, of the bill. There was a draft that had a form of independent complaints mechanism in it. I do not think it met with much positive response and, as a result, the government has regarded it as a greater virtue to say, 'We will take that out altogether instead.' I would be interested to perhaps explore this in the course of the committee.

But, as I understand and as is clear to those engaged in the sector already, the government might, in turn, make some extra effort and focus on what might be done to join up the existing capacity of the Ombudsman to be responsive to complaints by carers and for there to be perhaps a more effective joined-up arrangement between Child Protection and the Ombudsman in terms of awareness and understanding of how the two can work to respond to complaints by carers.

The feedback I have, anecdotally—and I think it has found its way onto the public record in various ways—is that presently the Ombudsman might have legislated power to receive and deal with complaints but is not necessarily doing a lot of it, and carers, similarly, might not regard the Ombudsman as the first port of call. If that can be a means by which an independent complaints mechanism can be advanced, then I will be glad to work with the government to see how that can happen. I highlight for the moment that this remains an area of real concern for those carers outside government who have complaints and feel both thwarted and as though they are not on a level playing field when it comes to getting to grips with things that are not working.

The second thing that the government has indicated the department will pursue as a matter internally is a better, more broad-ranging form of regional oversight of individual staff members, with the intent that there might be improvement there. It remains a sore point, it is not addressed in the bill. That might just be where that is at, for better or worse, and I think there might be more to be said about that, but I for one welcome the opportunity to see what might be done further with the Ombudsman, and it might be that an independent complaints mechanism is still work to be done.

The bill has been the subject of feedback from a variety of very thoughtful and well-known stakeholders, individuals as well as organisations active in this space, and I recognise those who have provided feedback to the government. It has been an interesting contrast in that there has been a long waiting period before seeing the legislation, and it has been a relatively short period of weeks since seeing the legislation and now its being brought to parliament.

As a result of that, I just indicate that I am still due to meet, in the course of the next hour or so, with stakeholders who have been active in this space and keen to provide their feedback, but we press on. They include the Guardian for Children and Young People, Shona Reid, and I recognise her work and, in particular, the Children and Young People feedback document that she provided in August of this year. I recognise and appreciate the work of April Lawrie, the Commissioner for Aboriginal Children and Young People, who has provided the results of her inquiry of work in anticipation of the bill and has also addressed the bill in recent weeks.

I recognise the advocacy of Uniting Communities and I draw particular reference, in the course of this debate, to its submission dated 15 September of this year in raising, I think, what it describes as the positive, on the one hand, and what is missing on the other. That is a thoughtful, succinct and valuable contribution to the debate, and Uniting Communities has been particularly engaged in this for a long period of time.

The Guardian for Children and Young People has also provided a submission dated September this year, and I recognise that submission, which highlights, in particular, the point about the best interests of the child, and there is scope to come back to it. In recognising those contributions I, finally for the time being, note the submission from the South Australian Council of Social Service (SACOSS), which provided a submission also dated September 2024.

All of those that I have mentioned are familiar to me. I have had the opportunity at various times over not just these last few weeks but over the last couple of years in particular to engage with them. I know how dedicated each of them are, in some cases to discrete parts of the community of vulnerable children in the state, and the work that they do is particularly valuable. I expect there will be an opportunity to draw from their contributions questions and submissions in the course of the committee, so I just flag that.

We are in a relatively live-action progress situation. It is not as though the responses to the draft bill have sat on the table for a long period of time and the whole situation has been settled. Some of these contributions, meetings, feedback to the draft and so on were only, really, in very recent days, so there may be more still coming. As I say, I expect to meet with some of those people, including just over the lunch adjournment in a moment.

I note and thank the government and thank the minister for the briefing that was afforded to me on the 24th of this month, last Thursday. As I indicated to the government in the lead-up to the debate, there are clearly important areas of work that are carried on in this bill that were very much the subject of the 2017 bill. There are matters that have been retained that will continue on and there are both discrete changes that I hope I have addressed at least in some sort of overview as well as this entirely novel part 4 of the bill, which will apply those additional provisions for Aboriginal and Torres Strait Islander children and young people.

What I propose to do is, perhaps having flagged those particular matters in the course of my second reading contribution, to take the opportunity of the committee to walk through and provide, perhaps, the government the opportunity to address more particularly those matters that I have flagged, especially part 4.

It is an important framework piece of legislation. It ought not be regarded as entirely some sort of revolution in child protection, and I do not think that the government present it as such.

The SPEAKER: Member for Heysen, do you want to seek leave to continue your remarks?

Mr TEAGUE: No. I think I will wrap up in just a few seconds. It is important that South Australians get to grips with the details of what is now a step from the 2017 act to the new regime, the subject of the 2024 bill. I look forward, therefore, to the opportunity to contribute in the course of the committee stage.

Ms O'HANLON (Dunstan) (12:59): I, too, rise to speak on the Children and Young People (Safety and Support) Bill 2024, which—

The SPEAKER: Member for Dunstan, did you want to seek leave to continue your remarks?

Ms O'HANLON: Yes.

Leave granted; debate adjourned.

Sitting suspended from 13:00 to 14:00.

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