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House of Assembly - Fifty-Fifth Parliament, First Session (55-1)
2024-10-30 Daily Xml
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Bills

Children and Young People (Safety and Support) Bill

Committee Stage

In committee (resumed on motion).

Clause 8.

The CHAIR: Where do you wish to start?

Mr TEAGUE: I am just conferring with the minister. I think the minister was, if not underway—

The CHAIR: That is right. The last time you asked a question. Do you wish to repeat the question?

Mr TEAGUE: If necessary; perhaps for the sake of the record at this point. I had addressed the submission in mid-September of the ALRM, which at that point at least was raising what might have been a concern grounded in some ambiguity about the provision in part 2 for the mandatory consideration of certain matters. I understand that the bill was amended following that feedback. It is anyway, I think, perhaps an opportunity to address what might be a broader residual submission at least from the ALRM—one that I do not necessarily share—about the need to ensure that those provisions the subject of part 4 are just as imperative as those matters that are addressed in part 2.

The Hon. K.A. HILDYARD: At 8(1)(b) we insert (1)(b) to reinforce that when performing functions in relation to an Aboriginal or Torres Strait Islander child or young person regard must be given to part 4 division 3, those additional guiding principles for Aboriginal and Torres Strait Islander children and young people.

The CHAIR: That clarifies that one.

Mr TEAGUE: Indeed at 8(1)(b) there is specific provision for the mandatory imperative to apply in relation to matters the subject of part 2 and in the case relating to an Aboriginal or Torres Strait Islander child or young person part 4 division 3. I share the view of the minister that that ought to deal with the specific concern.

Insofar as 8(1)(b) refers to an Aboriginal or Torres Strait Islander child or young person, I might have jumped over the point at clause 3 where the definition is set out and I just make the observation that the definition of an Aboriginal or Torres Strait Islander child or young person—and this is not, at least as far as I am aware, a matter the subject of concern from the ALRM—is really properly directed to clause 3 where the definition is found but it is used, I think, perhaps for the first time at clause 8. It is what might be described as the native title definition. It is a definition that is well understood, and it is widely accepted and used in a whole range of ways but has its origins in terms of establishing, first of all, eligibility for native title.

Given that we are here talking about Aboriginal and Torres Strait Islander children in that identified therapeutic environment, has the government given consideration to the use of that definition and its appropriateness in these circumstances; that is, including the necessity for a person to be accepted by a particular group?

Perhaps by extension, the identification is also part of the definition where, in these therapeutic circumstances, we are dealing with children who as a matter of fact or not are Aboriginal or Torres Strait Islander. They may not necessarily identify as such and they may not be accepted or otherwise. I just query what the utility of therefore that form of definition is, and has the government given consideration to how that might work and the avoidance of unnecessary hurdles in that regard?

The Hon. K.A. HILDYARD: The short answer is yes.

The CHAIR: Any further questions on clause 8, member for Heysen?

Mr TEAGUE: I might then foreshadow a further reference to the Aboriginal Legal Rights Movement's observations about the importance of those provisions in part 4. I know the government has ordered the bill with a view to giving prominence to part 4, but is there any better or more comprehensive an answer to that ALRM concern that clause 8 and provisions thereafter could be inclusive of the part 4 provisions? Is it just that it is a more convenient statutory drafting structure to separate it all out and to put it further down the track?

The Hon. K.A. HILDYARD: It is structural because part 2 applies to all children and young people, and part 4 specifically applies to Aboriginal and Torres Strait Islander children and young people.

Clause passed.

Clause 9.

Mr TEAGUE: I am just looking to compare as we go with the equivalent in the 2017 act, as far as possible. In the 2017 act at section 4 we see the present parliamentary declaration, and in terms of the consideration of the 2024 bill there is an expansion of what is now called the parliamentary recognition. In terms of the work that has been done to extend that declaration, is there anything in particular that has guided it? How has that arisen?

The Hon. K.A. HILDYARD: As part of the consultation process, a really broad and diverse range of stakeholders agreed that the review was an opportunity to revisit the principles in place in the legislation to better reflect community expectation and the core role of the child protection and family support sector in keeping children and young people at the centre of our work.

As the member has said, this section effectively updates the parliamentary recognition of children to incorporate explicit recognition around a range of matters that various stakeholders demonstrated support for: firstly, that the responsibility for keeping children and young people safe and well extends to all members of our community. It was expanded to also say that the child protection statutory framework also plays an important role—but a small role in some ways—in keeping children and young people safe, in the way that community members and governments discharge their duties to safeguard children, and that the provision of services to address the underlying risk factors that contribute to child abuse and neglect are critical in our efforts to prevent children and young people from contact with the child protection and family support system.

Crucially, and perhaps most importantly in this clause, the bill also now includes that the parliament recognises the impact of past laws and policies of previous governments, particularly in relation to the stolen generations and the continuing impact of that on Aboriginal children and young people and their families.

Mr TEAGUE: I note also that there is explicit recognition of the UN Convention on the Rights of the—

The Hon. K.A. Hildyard interjecting:

Mr TEAGUE: I do not demur from the minister's question of paramountcy and so on, but there is specific reference to recognition of the UN Convention on the Rights of the Child and the UN Declaration on the Rights of Indigenous Peoples as documents that inform the administration and the operation of this act. Apart from recognising the importance of that addition, in terms of that relevant informing of the administration and operation of the act, has the government advice, has the government given consideration and is the government satisfied that the recognition of that is going to sound in practical ways and, if so, what are those?

The Hon. K.A. HILDYARD: First of all, just as a general comment, these particular inclusions of the two UN declarations that you have spoken about have been long called for by various stakeholders and advocates for children and young people. Without giving a comprehensive list but, rather, a couple of examples that go to your question, examples of specific articles in those conventions which absolutely will inform the administration and operation of the bill include article 3, which provides that the best interests of the child should be a key consideration in actions concerning children, including that the child is protected and cared for to ensure their wellbeing.

As we have already spoken about, the best interests principle, whilst not paramount, is certainly elevated. It requires that that is considered in terms of any decisions that are made about children, again, whilst not paramount. Article 5 provides that governments should respect the responsibilities, rights and duties of parents or, where applicable, members of the extended family or community as provided for by local custom to provide appropriate direction and guidance in the exercise by the child of their rights. Of particular note here, of course, is part 4 of the bill, which introduces a comprehensive range of provisions that absolutely recognise the need and the right for Aboriginal children and young people to be connected to culture, family, community and country.

Article 7 states that children have the right to know and be cared for by their parents. This is addressed, I think, in the factors that can be considered as part of that best interests principle that we have already spoken about. Article 9 also goes to the issue around best interests. Those are just a few examples. Not every single article is explicitly dealt with in the bill, but certainly those examples I have just articulated will guide the way that we operate and administer the objectives of the various provisions of the act.

Mr TEAGUE: It is with that in mind, particularly starting at article 3, as the minister quite rightly says—it does not need me to say—that calls have been made by many others over a long period of time as guiding principles. It is article 3 that talks about the best interests and then various further references to the best interests of the child and, as the minister says, article 5 in relation to family that really highlight that best interests principle.

I do not think we see there expressed—and I do not mean to put it as a contradiction—any support for the paramountcy of safety in the UN conventions. There is plenty of reference to circumstances in which the best interests of the child and then related matters ought to be adhered to. If the UN Convention on the Rights the Child to start with was to be the document informing the administration and operation of the act, then it might be concluded that the best interests principle is starting to trump all else, and that might be a foretaste of where we are at for clause 10. I just wonder whether that then leans us even more clearly into territory where the best interests of the child is where the matter needs to head.

The Hon. K.A. HILDYARD: I think you raise a really important point, and it is a point that we very actively considered in developing this bill. I do acknowledge that many have advocated really strongly that best interests indeed be the paramount principle in child protection and family support decision-making. We did consider those different views; however, we think that the position taken in this bill to retain safety as the paramount principle does not undermine that importance of the best interests principle. Best interests has been elevated as a complimentary principle alongside, rightly, a range of newly proposed principles considered critical to child protection and family support work in our context here in Australia.

What I would say, really importantly, is that the two principles are not incompatible. I would challenge anyone who suggests that we should not endeavour to keep a child safe from harm. I say that not to be disparaging but rather to make the point that keeping a child safe is always in the child's best interests, if that makes sense. Also, conversely, if a child is not safe then that child does deserve our protection through various interventions.

In proposing that safety is retained as the paramount principle I also acknowledge article 3, as I just have, which provides that the best interests of the child should be a primary consideration alongside a range of other considerations. I think it is really important to distinguish this from being the paramount consideration as is often quoted when this discussion has gone on.

What I would say as well is that across jurisdictions, yes, there are different ways that different jurisdictions contemplate safety and best interests, but in most jurisdictions there is some balancing between the two. Here in South Australia, of course, it was very firmly recommended in the coronial recommendations following the tragic death of Chloe Valentine that we do maintain safety as that paramount principle. That is a very clear direction.

Also, we have had this ongoing advocacy around best interests becoming paramount, but we think that we have actually landed in the right place, taking into account the range of views that we have heard and taking into account that not only are we elevating best interests as a guiding principle but also other principles, rightly, including the Aboriginal and Torres Strait Islander Child Placement Principle.

I understand your question. I think it is a really important one and it is one that we have grappled with. I suspect that our community will continue to grapple with that particular question about what should be paramount, but I think we have landed in the right place.

Clause passed.

Clause 10.

Mr TEAGUE: Clause 10 is indeed, as I think I flagged in my second reading contribution, among the most important clauses characterising the bill. As the minister has just pointed out, it has been the subject of quite sustained and thoughtful debate, including prior to the 2017 act and at all times since.

The provision in clause 10 retains as a paramount principle safety of children and young people and, more particularly, the paramount principle is to ensure that children and young people are safe and protected from harm. No other principles or requirements that are in the act displaces or can be used to justify the displacement of the paramount principle. It is pretty categorical and remains so. As the minister has addressed just now, that might have had its genesis more particularly in South Australia in the Rau consideration prior to the 2017 bill and formed by coronial inquiries into terrible events.

The Nyland royal commission was undertaken in that timeframe as well. The minister has adverted to other jurisdictions that might wrestle with imbalance notions of safety alongside best interests. Is there any more elucidation more particularly that the minister might refer to in terms of consideration in other jurisdictions—Scotland and elsewhere—where safety and protection, given that they are both specifically particularised in clause 10, have quite as distinct a role as they do here in clause 10?

The Hon. K.A. HILDYARD: Without going into detail, I have notes here on every jurisdiction, but I don't want to go through every single one. I think we can probably share that analysis with you. As an example, in New South Wales the paramount consideration is safety, welfare and wellbeing. The other thing I wanted to provide to the member, which I meant to provide in my previous example, is that the UN Convention on the Rights of the Child also includes article 19, which states:

…Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.

Mr TEAGUE: I appreciate those two references. Having mentioned Scotland myself, if we were to cherrypick one stand-out, I just note, if I am right, the Children and Young People (Scotland) Act in part 1, when talking about the duties of Scottish ministers in relation to the rights of the child, appears to me wholly focussed on the UN Convention. If that might beg a further question, in consideration of the transition from 17 to 24, is one matter that is under consideration—and given the treatment in article 19 and the overall picture—to move to a Scottish position, jettison the rest and be guided by the UN Convention in all respects, rather than retain the paramountcy of our own test of safety and protection?

The Hon. K.A. HILDYARD: I think you are asking a question about what we might consider into the future?

Mr Teague: No, for these purposes.

The Hon. K.A. HILDYARD: I think there is probably a very lengthy discussion we could have and we could have with many people in our community about this particular issue, and it is a debate that has gone on for a very long time. As I said, we have landed, taking into account the coronial recommendations, taking into account the development of our new part 4, which absolutely brings into focus the Aboriginal and Torres Strait Islander Child Placement Principle as another guiding principle for Aboriginal children and young people, and the elevation of best interests as a guiding principle.

We have carefully considered that we have landed at the right place, again taking into account the various advocacy on this particular clause, and the journey, as you have spoken about, that our state is on. I think South Australia does have a particular context that we must, of course, take into account. With all of those factors, this is where we have landed.

Mr TEAGUE: I respect the answer and respect that it is a matter of seriousness and it is informed by our own particular experience; all of the above. I think it would be remiss of me not to highlight, however—and this might lead to an explanation as to how these matters might be ameliorated in part 4—that the ALRM draws special reference to its concern that the best interests of the child are not the paramount consideration in decision-making.

I refer to its submission again. At page 3—and I say it in the particular context of the ALRM, because it goes further to highlight that concern in the context of what is in the best interests particularly of Aboriginal and Torres Strait Islander young people—it makes the following observation:

The Bill does not make the best interests of the children the paramount consideration. Best interests include a child's safety, but is broad and holistic about a child's needs.

Making best interests subservient to the narrowness of what safety means is not in a child's best interests and is in direct contravention of the Convention of the Rights of the Child (Article 3) and of Recommendation 47 of the Bringing them Home Report.

It is not in line with Family Law nor Child Protection legislation in other states of Australia.

That is the ALRM's stated view at that time, so I highlight that. I also do not think I am putting words in the mouths of stakeholders, including SACOSS and UnitingCare and the peak body, Connecting Foster and Kinship Carers, in all expressing one way or another a view that there is this important work to be done in departing from safety as a paramount guide.

As I say, I singled out the ALRM because it is advocating in particular for what might be all the more imperative for Aboriginal and Torres Strait Islander children and young people, but in respect of each of those groups, if the minister has anything further to add about what perhaps I would describe as that high-watermark expression from the ALRM, I invite the minister's response.

The Hon. K.A. HILDYARD: Again, I think we are sort of agreeing on this. I suspect that this deliberation in our state about safety as the paramount principle, and the proposition put forward by a number of people that that should actually be best interests, will continue. I have outlined why we have landed in the particular place that we have in this legislation.

I think in regard to the first part of your question—and I suspect there will be a further opportunity to explore this when we get to part 4—there are additional considerations relating to the best interests, in particular, of Aboriginal and Torres Strait Islander children and young people. Clause 48 provides particular discrete provisions around exactly what matters should be taken into consideration when determining whether particular steps are in the best interests of Aboriginal and Torres Strait Islander children and they are additional to those that are identified in respect of all children at clause 11 of the bill.

The need for additional matters specific to Aboriginal children to be listed recognises the importance of ensuring culturally safe and relevant considerations being embedded in the legislation, consistent with the broader commitment to fully embed the Aboriginal and Torres Strait Islander Child Placement Principle to the standard of active efforts, and those additional matters recognise the unacceptable over-representation of Aboriginal children and young people in care and that provisions which recognise the particular needs of Aboriginal in children are a critical element of any legislative framework which seeks to support the broader transformation of the system and Aboriginal people's engagement with child protection and family support services.

Clause passed.

Clause 11.

Mr TEAGUE: The corollary to the debate that we have just been having—clause 11 indeed now addresses the importance of the best interests principle. At this point I just make particular reference to the considered view of SACOSS again—not to put particular words in its mouth—but again the emphasis of the UN convention in all its aspects, emphasising the best interests of children and young people. We have talked about the importance of ensuring that actions are taken to avoid the worst of outcomes.

I just highlight the positive benefit of the best interests principle, in that it moves the focus inevitably away from one which is, from a starting point, risk averse to a place of looking at the picture as a whole under the UN convention. There is a potential blossoming out of the capacity to think about the child that is permitted, if the best interests of the child are indeed given paramountcy. To reflect that SACOSS view, is the government giving consideration to any aspect that is lost in making that best interests principle subservient to the ongoing paramount principle of safety and protection?

The Hon. K.A. HILDYARD: I think I have said this in a previous answer, but importantly those two propositions are not incompatible and, of course, in making safety the paramount principle we want to be really clear to child protection officers that their focus is absolutely clearly on the safety of the child.

We want to make sure that that message is very clear, but the two propositions are absolutely not incompatible. However, if a child is not safe then that child does deserve our protection. However, again, and I think I also said this before, keeping a child safe is always in their best interests and that is why I say these two propositions are not incompatible and in proposing that safety is retained I also refer again, as I did before, to article 3 of the UN convention, which does say that the best interests should be a primary consideration alongside a range of other considerations. It is important to distinguish those words in that article from being the paramount consideration as is often quoted.

Mr TEAGUE: I thank the minister for that answer, and I think it is clear that there is a range of views about that, and I think it is valuable to have the government's view on the record in that regard.

I just turn then specifically to clause 11(2)(e). I think that is really where it is most clearly referred, and the concern raised by the ALRM about the emphasis on the making of decisions and taking actions in a timely manner and I do so to be faithful to the ALRM's concern in that regard. It may be something that has been given some careful consideration. As the government is aware, it is on the face of the ALRM's submission. The ALRM expresses concern for the need for ongoing consideration of reunification and therefore, in its view, the removal of 'timely' from the process of decision-making.

My question is: without then rehearsing the balance of the ALRM's submission in that regard, to what extent has the government considered that concern specifically in relation to Aboriginal and Torres Strait Islander young people and is there an answer to the concern that ought to be a source of satisfaction to the ALRM and others?

The Hon. K.A. HILDYARD: If I am hearing the question correctly, I think probably the most important thing to note in relation to the shadow minister's question is that embedded in the requirement that the Aboriginal and Torres Strait Islander Child Placement Principle be embedded to the standard of active efforts is a requirement about timeliness in terms of active effort, so I think that would allay the concern you are raising.

Mr TEAGUE: I might emphasise, unusually in this regard, that I am raising the concern because it is raised by the ALRM. I appreciate the minister's answer, but I am seeking to elucidate both the nature of the concern and whether it is capable of being answered. I stress here that the ALRM maintains that its concerns all ought to be best expressed within part 2 and, perhaps more particularly, within clause 11.

Much of that concern is directed to the inclusion of these things in clause 11, where the answer might be, 'Well, it's there in the placement principle,' or, 'It's there in part 4.' I would just note, because it is emphasised, that the ALRM is making particular reference to the benefit for Aboriginal children of placement with siblings, and it seeks that specific reference be made to it in clause 11. In that regard, I would again invite the minister's response as to how that is best expressed in the clause, if not in the bill.

The Hon. K.A. HILDYARD: What I can say is that we have absolutely included in the bill provisions to strengthen the rights of children and young people to be connected to their siblings, and that clause came directly from engagement with children and young people themselves, who spoke about how important that was. What I can say is that clause 11(2)(k)(i) provides that, in considering a child or young person's best interests, regard should be given to the desirability of case planning that places a child or young person with a member of family, including the child or young person's siblings—and the clause goes on.

Clause passed.

Clauses 12 to 14 passed.

Clause 15.

Mr TEAGUE: I want to be clear on the nature of any relevant change at this point. Can the minister indicate the nature of any change to the chief executive's obligations at this point and the reasons for that?

The Hon. K.A. HILDYARD: The purpose of this clause is to bring to life the commitment we made to make sure that the voices of children are at the centre of our efforts through this legislation and indeed in everything we do. It is also to make it clear that the child protection and family support system has a responsibility to make sure that children and young people are empowered to participate, as far as possible, in decision-making that impacts them.

This inclusion introduces a statutory obligation on the chief executive to provide a copy of the charter of rights to all children and young people in care as well as information about the role and contact details of the Office of the Guardian for Children and Young People to bring those two factors that I just spoke about to life. I should note that it is to all children who are capable of understanding it, noting that if you are six months old or one year old you probably cannot read a charter of rights.

Clause passed.

Clauses 16 to 18 passed.

Clause 19.

Mr TEAGUE: At clause 19, as I flagged in my second reading contribution, I note that at subclause (1) the minister is empowered in a new way—I think so. It boils down to the minister being empowered, with the prior consultation of the relevant other ministers, to direct chief executives to meet and consider matters that ought to be given interagency consideration. I suppose considering the balance of clause 19 there is a recognition there, I guess, about both the desirability of an interagency approach and the limitations of ministerial power beyond portfolio. Is there any indication as to the consideration the government has given to the scope and capacity of the provision and how it might be worked out in practice?

The Hon. K.A. HILDYARD: I think the really important thing to note about this particular power is that it needs to be considered in conjunction with the public health approach that we are very deliberately setting out in this bill—the fact that we are introducing, rightly, the concept of effective intervention, which is about ensuring that we meet a child or family where they are at. When I say 'we', it is across government that we meet that child or family where they are at.

It introduces the concept of a state strategy so that all of those government agencies and indeed others involved in child protection and family support can look at all of their roles and responsibilities across the system and work together to make sure that we are doing the very best that we can in an aligned way to make a positive difference in the lives of children and young people.

As I said, this clause has to be read in conjunction with those provisions and also read in a way that means that through this power to direct particular chief executives to meet we are bringing to life that desire to make sure we are working across government with children at the centre to drive change.

Progress reported; committee to sit again.


At 23:55 the house adjourned until Thursday 31 October 2024 at 11:00.

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