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House of Assembly - Fifty-Fifth Parliament, First Session (55-1)
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Bills

Children and Young People (Safety and Support) Bill

Committee Stage

In committee.

(Continued from 30 October 2024.)

Clause 19.

Mr TEAGUE: At clause 19, I welcomed an indication of the importance of a whole-of-government approach to child protection. It is described as an interagency approach in clause 19. I think the minister had given some indication of how that might work in practice. There is the direction to the chief executives to meet and to discuss. Does the minister concede that it only goes so far, in that there is no capacity for the minister to direct the spending of money in other portfolios, and there is no capacity for the minister to exercise executive function as it were interagency? Has the government given consideration to that really being about the limit of the extension of ministerial powers without conducting the broader reform around the scope of agency functions?

The Hon. K.A. HILDYARD: The answer is: we are comfortable with it because, as I said last night, it is important that we read this clause in conjunction with the clause about the establishment of a state strategy, because that state strategy absolutely goes to various departments needing to discuss and develop their part of that strategy, and contribute across agency to the development of that strategy.

So the answer is, yes, when you read this clause about directing chief executives to meet, to discuss particular issues that may arise for children and young people, and to ensure that the system is acting in a seamless way for those children and young people. When you couple that direction in a broader context of the public health approach that is now embedded, and the development of the state strategy across government, yes.

Mr TEAGUE: Perhaps then to round out the consideration of questions of whole-of-government interagency extended powers of the minister, and it is rather a reference back to the debate last night in respect of clause 9 and then the retention of the paramount principle in clause 10, given now the express reference to the UN convention in clause 9(8), insofar as other agencies are concerned—that is, not the minister and chief executive with responsibilities to administer the act as it is framed in terms of the paramount principle at clause 10—is there, given that express reference in clause 9(8) to the UN convention, now an imperative on those other agencies, and indeed the rest of the parliament, to give a new paramountcy to the best interests of the child and those other range of considerations subject to the UN convention, for example?

A way of saying, notwithstanding the retention of the paramountcy of safety and protection for the purpose of this act, is there now a whole-of-government paramountcy in relation to the best interests of the child that is possibly gaining a pre-eminence that was not there previously?

The Hon. K.A. HILDYARD: I guess I would reflect on my answer from last night. We are very clear that safety remains the paramount principle for the reasons that I spoke about. Best interests has been elevated as a guiding principle and, of course, this legislation, like all legislation in relation to the particular subject matter to which it refers, is legislation that across government it would be an expectation that the principles of any legislation would be adhered to in the way that that particular piece of legislation describes.

Clause passed.

Clauses 20 to 23 passed.

Clause 24.

Mr TEAGUE: I ask this in the general sense. We are here dealing for the first time expressly with the functions of the chief executive, in terms of then what will be more expressly dealt with in terms of delegations later in the bill. Is there anything about the consideration of the functions of the chief executive that has been the subject of particular consideration by the government in moving from the 2017 environment to the 2024 environment? I give the minister the opportunity to perhaps address any of those at this clause.

The Hon. K.A. HILDYARD: I think if I am hearing the question correctly, the main difference is the addition of functions for the chief executive to have power in relation to. Those additional functions include developing all the policies and procedures and strategies that give effect to the state strategy that we have spoken about; the promotion of partnerships across government but, indeed, with the community and the sector as well to address harm to children; promoting partnerships with approved carers; encouraging cooperation between state authorities to ensure that children and young people at risk of harm receive the appropriate support as much as possible; and working in partnership with recognised Aboriginal and Torres Strait Islander entities to build capacity to facilitate delegated decision-making and Aboriginal and Torres Strait Islander family-led decision-making, which we will no doubt talk about in part 4. Also, most of the current functions remain.

Mr TEAGUE: Perhaps for the record, then, is it convenient for the minister to indicate those that do not?

The Hon. K.A. HILDYARD: Yes. As I said, most of the current functions remain, excluding current section 145(b)(ii) and section 145(b)(iv).

Clause passed.

Clause 25.

Mr TEAGUE: We see at clause 25 the powers of delegation of the chief executive. There is the power to delegate a single function as it is framed in subclause (1): 'delegate a function under this or any other act to a specified person or body'. The exclusion to that is a prescribed function. Again, I am interested from the point of view of the structure of the act how those prescribed functions are caught and defined. I compare the expression in clause 50, when we get further down the line, also a reference to a prescribed function.

The Hon. K.A. HILDYARD: If I am hearing correctly with that last reference to clause 50, it is probably important to note that a discrete statutory power of delegation to Aboriginal entities is contained later in the bill. You have just alluded to clause 50 as part of the new provisions for Aboriginal children and young people. That is there to make very explicit the parliament's intention to enable that delegation to recognised Aboriginal entities and to be explicit about the scope of that power of delegation and how it accords with the Aboriginal and Torres Strait Islander Child Placement Principle.

Mr TEAGUE: That has the same carve-out; that is what I am saying.

The Hon. K.A. HILDYARD: It is the same as the existing clause. However, the carve-out in terms of 'other than a prescribed function' is that maybe at a particular point, for particular reasons, we carve out a particular issue that we do not want the CE to have that function to delegate.

Mr TEAGUE: I understand that. As I framed it, it was a statutory interpretation and structure question. I think we came across this in another bill recently. It turned out there was no such prescribed function, no definition—did not work. The whole thing was not able to be interpreted from start to finish. The carve-outs are not expressed other than any function that may be prescribed by regulation, for example. We just refer to small-p, small-f 'prescribed function', and I do not even see it defined.

For the purposes of both this clause and clause 50, is it the case that there is not any at the moment? If there was to be one, how would that be recorded? It would not be gazetted by regulation; it does not say so. It would presumably not be done by an amendment to the act. Is this not the occasion to provide for how that might be done?

The Hon. K.A. HILDYARD: You are right; there are none at the moment. That is something that we would develop obviously in consultation with the various bodies that we would usually consult with, whether that is Wakwakurna Kanyini, others in the non-government sector, SAACCON, etc., but there are none at the moment.

Mr TEAGUE: How would you go about prescribing such a function, given the way—

The Hon. K.A. HILDYARD: In regulations, through consultation.

Mr TEAGUE: If so, why not say so? For example, in clause 13(7) we see a 'prescribed decision', and we see them spelled out. The answer is there are no prescribed functions at the moment. I am not suggesting that there necessarily needs to be. It might be convenient to do it, and it is good to have on the record that there would be a process. If it is the subject of advice that it is not necessary to frame it in terms of 'as may be described in regulation', that is the government's view.

The Hon. K.A. HILDYARD: Yes, it is our view. I am happy, though, to look at that in between the houses, as to whether we need to be more specific that the method would be via regulation and the necessary consultation.

Clause passed.

Clause 26 passed.

Clause 27.

Mr TEAGUE: At clause 27 we see the commencement of division 3 and the Quality of Care Report Guidelines. As I read it, this is the closest approximation to a reform of the complaints handling process. As has been canvassed in the course of the second reading debate, there has been a move away from a start to finish, independent complaints process, something of that nature, but we have an obligation here on the chief executive to publish guidelines that I might roughly describe as being a road map or framework of how the department will go about investigating itself in circumstances of concerns about quality of care and so on.

Before I get to any possible interaction with other agencies, as has been flagged in the second reading, is there anything that the minister might take the opportunity to put on the record in relation to how that quality of care guidelines approach has been reached and what is anticipated by the government to flow?

The Hon. K.A. HILDYARD: I have spoken in the second reading speech and many times in here about being really committed to listening to carers and to making sure there is a timely, transparent and effective care concern process in place for carers, without of course compromising the safety of children and young people and the need to balance any necessary inquiries in relation to particular issues.

Dr Fiona Arney's report included a proposal to embed the care concern process in the legislation. This recommendation follows similar and significant advocacy from carers and the peak body, so this clause has been included to specifically respond to carers and advocates alike by creating an obligation on the chief executive to publish these Quality of Care Report Guidelines, which will govern the processes by which reports are to be assessed and responded to, including—which was very strongly advocated for by the peak—how procedural fairness will be afforded and how decisions can be reviewed.

The approach we have in the bill responds to that desire to have this embedded in legislation. It also ensures the guidelines can remain flexible, responsive, contemporary and also be underpinned by legislative requirements to ensure that the process is fair and transparent. Further opportunities to strengthen this process will also come through the care concern reform project that carers are right now inputting into. Carers are involved in that process very actively, so as well as this embedding in legislation that project will also continue. It is due to conclude around the middle of next year, from memory—I will certainly double-check that for you—but those two things operating together will be really important.

Mr TEAGUE: The minister mentions the only report. I do not recall the specific date, but a review was commenced middle of the year or thereabouts into the matter broadly. I noticed there was media reporting yesterday. I stand to be corrected, but I do not understand the review itself to have been published in full. What is the status of the review and will the government publish it and to what extent is it informing, coming as it does relatively late in the piece, the overview the minister has just given?

The Hon. K.A. HILDYARD: We are talking about two slightly different things. The Arney review also recommended that there be a review of the internal complaints process and that was conducted, there was media about that and I have just looked over at the CE and I understand we will publish that in due course on the website. As a spokesperson from the department said in the media yesterday, of course we will consider those recommendations.

We had a conversation in our briefing also that we are absolutely committed to improving both the internal complaints process, through exploring how we can strengthen pathways from that process to other bodies, namely, the Ombudsman, but also we have committed (and I have spoken about this in here and I spoke with the honourable member in the briefing and I think it is also in the media article) to better training and resourcing staff to, as effectively as possible, deal with internal complaints as well. I think that has answered everything you have asked in that question.

Mr TEAGUE: I think I heard the answer to that being that the government will publish the review in due course. I get it, loud and clear, that what the government has preferred over a legislated independent complaints process has been two prongs: one is taking some active effort to promote the existing capacity of the Ombudsman to provide, effectively, an independent complaints process. Secondly, it is having what has been described as regional oversight, within the department, of individual staff members who might, with the benefit of some oversight, be likely to improve in terms of practice—that there be some opportunity to review by that means.

In relation to what the government has indicated it regards as the existing power of the Ombudsman to do all that might be desirable in this space, what actions, if any, is the government taking or planning to take in respect of facilitating such complaints to be directed to the Ombudsman, in terms of the resourcing capacity of third parties, staff and then also the Ombudsman, to make that work better?

The Hon. K.A. HILDYARD: First of all, in the original draft of the bill we did canvass an independent complaints mechanism. It was not well received, and we heard that. What we have publicly committed to—and I am not going to go through the words of my second reading speech—is to explore how we can provide additional resources so that carers can get to that independent provision of investigation that the Ombudsman creates through what they do by the very nature of their position. So we are going to provide additional resources in that regard.

I know there was some commentary from the shadow minister, I think in a Budget and Finance meeting maybe last year, about that particular proposal and the role of the Ombudsman. From memory, that was something you supported in terms of that function of the Ombudsman. We, though, want to make sure that carers have information and the best possible pathways there, and that is where we will focus resources to make sure they can access that independent complaints mechanism, because, as I know the shadow minister agrees, the Ombudsman is absolutely independent, of course, by the very nature of their function and their powers, etc. So we will be resourcing that.

Also, we will be resourcing additional training and exploration of pathways to make sure that those internal complaints at that first step are handled much better—and you did speak about that regional oversight as well. Additionally, and we have spoken about this publicly also, we have been very open about the fact that we are creating a director of carer services role in the department because, on coming into government, it was very clear that there are different responses to carers within the department. We think that carers need to have a person, a function, in the department that they can go to directly to seek the support that they need. So we are also resourcing the establishment of that new position.

As you know, and as I have spoken about here, we have established our Carer Council so that I can hear directly through the Carer Council. Also, as I have been very open about and as I have demonstrated by pretty much nonstop forums and meetings, I am very happy to keep listening to carers about what else we can do to make those improvements. They should be listened to, and I am very happy to do that, and I am very open to doing that, and, in doing that, we can keep improving that system, including around complaints, together.

Mr TEAGUE: The minister referred to resourcing that in terms of the engagement with the Ombudsman. Is there anything more specific about that? Is there a proposed cost to child protection? Is there a cost to the Ombudsman in terms of that sort of interagency direction? What sort of form does that take, or is it as general as that at this stage?

The Hon. K.A. HILDYARD: The CE, if I have just read what she has said, is having those discussions with the Ombudsman about how that can work, but also, as I spoke about recently at an event to re-sign our refreshed Statement of Commitment to carers, we will also be involving carers in that consultation about what that needs to look like because, as with everything we do in relation to carers, their voices need to be part of what that looks like. So I very much look forward to it, and that is absolutely a commitment that we engage with carers around that.

The CE will keep talking with the Ombudsman, and also, through that new director of care services position, we will be making sure that there is a further opportunity for carers to have that person, that department within the department, if you like, where they can actually find out about particular matters, speak, give ideas about what carers want to be further consulted about, etc. So I think amongst all of those avenues, we have the best opportunity in partnership with carers to get this right.

I see two of our wonderful carers here. I look forward to working with them and other carers to progress that change in a way that works for carers. Right throughout this bill, we have been very clear—and I will be speaking about it in relation to a range of clauses—we will have a period of time for implementation of this bill so that we can absolutely get things right in partnership with carers.

Clause passed.

Clauses 28 to 38 passed.

Clause 39.

Mr TEAGUE: We come to the new part 4, which I have identified as being the wholly novel part of the bill. Treating it in a kind of clause 1 type of way and given that it is a brand-new approach, it might be fair to say that there would be a range of participants in the sector—stakeholders and so on—who are new to it as well.

Perhaps from a framework point of view to start with, can the minister indicate to the committee that the government has had relevant advice, including as to the constitutionality of it, for want of a better word, in that it is clearly carving out a whole range of provisions that are going to apply only to a particular group, and then to the genesis of the work that has contributed to this part 4, the rationale for it and how this approach is expected by the government to pan out in a new way? It is a pretty open question.

The Hon. K.A. HILDYARD: Yes, it is. Thank you. I think it is a good way to start the conversation on this chapter, because this chapter does make significant change, and the significant change comes literally from years and decades of advice from Aboriginal and Torres Strait Islander people and organisations about the way forward. Embedded in that advice are three really clear proposals that have been consistently put forward to governments of every persuasion. Those principles relate to delegation, self-determination and the embedding of the Aboriginal and Torres Strait Islander Child Placement Principle.

In terms of how we have arrived at that, as I said this has been decades—longer—of Aboriginal community members and organisations putting those principles forward. It is a shame that governments of all persuasions have not always heard those words from Aboriginal people—Aboriginal people who have been so strong and resilient in putting forward those three principles in articulating their desire about what needs to change.

So I am very grateful to those Aboriginal community members and organisations who have very generously engaged with this process that is in front of us now—and when I say this process that is in front of us I include the long-term discussions that have happened in the national environment where SNAICC has engaged, again, with ministers over time of every political persuasion at a national level. SNAICC has provided very strong advice about what is in front of you today, and in fact Safe and Supported and the first action plan absolutely have been committed to, again by governments of all persuasions over the years, to bring to life those principles.

In terms of the Aboriginal and Torres Strait Islander Child Placement Principle, that concept I think has been around for about 40 years, and it was finally embedded in the national plan, called Safe and Supported, and in the first action plan. All Australian jurisdictions, obviously including ours, have agreed that more needs to be done to fully embed that principle in legislation as part of our efforts to reduce the over-representation of Aboriginal children and young people in contact with the child protection and family support system.

As I said, that shared commitment from all jurisdictions was developed in collaboration with Aboriginal partners. As well as being in Safe and Supported: the National Framework for Protecting Australia's Children 2021-2031, it is also embedded in target 12 of the recently refreshed Closing the Gap agreement. The Closing the Gap agreement and that national plan, signed up to some years ago, which committed all of those Australian jurisdictions to this approach, have absolutely informed where we are today.

Also this approach has been informed by the extensive review process where I think 167 Aboriginal people—or around 167; I will check the number for you—engaged in that review. Through our review the overwhelming majority of stakeholders indicated an exceptionally high level of support for embedding the principle, including all five elements, in relation to the standard of active efforts within our legislation.

I am sure I will have an opportunity to speak about some of these steps forward as we go through this significant part, but again this is guided by those three tenets of delegation, self-determination and embedding the principle. Those commitments around each of those areas are embedded in the national plan, Safe and Supported 2021-31, and the first action plan and also in target 12 of the Closing the Gap agreement.

Mr TEAGUE: My question is on the record in terms of the government satisfying itself as to the benefit of advice in relation to any problems, as in discrimination and so on. The minister might wish to address that directly or not in response to this question.

This second question goes to the providence of the part and the extent to which stakeholders have engaged in the process of the establishment of part 4. Is it a good characterisation of part 4 to say that it is informed by a whole lot of elements, the work of government over a long period of time in some ways, but that the particular formulation in part 4 is being presented by government, the subject of the draft bill, and it is now for all of us to consider as a new proposal, but it will be in the working out that stakeholders will have more to say? If there has been any particular input by stakeholders in advance then the minister might care to highlight that as well.

The Hon. K.A. HILDYARD: Absolutely this has been informed, as I said, by discussions over many, many years and representations by SNAICC through the development of the national plan and then the first action plan that resulted in all jurisdictions signing up to this. That work is not new; it absolutely, though, does inform the bill.

To go to your question about is it that we have heard all of that and then we have come up with something else, actually what we have heard over all those years, what we signed up to in the national plan, is absolutely embedded in this chapter. It is a chapter I am really proud of, because it does demonstrate that commitment that governments all around the country have made to Aboriginal people. It is a demonstration of that.

The other thing I would say is that I know there are particular views, right throughout this bill, of some wanting us to go even further at this point in time. What I will say to that is that we have landed in a place where we have embedded those three principles I have mentioned—one of those being the Child Placement Principle—but also, as I just spoke about, over the next couple of years there will be an opportunity to deeply engage with, for instance, the newly funded Wakwakurna Kanyini, with SAACCON, with SNAICC, with various Aboriginal organisations to make sure that we bring these provisions to life in the best, most appropriate and respectful way.

So yes, this is where we have landed, but we will be working very closely with our Aboriginal partners to make sure we get the rollout of these provisions right.

Clause passed.

Clauses 40 and 41 passed.

Clause 42.

Mr TEAGUE: We come back to the point about definition, clauses 42 and 43. My questions are directed to the practical mechanical questions, partly in circumstances where we have a differential family group conferencing mandate that is applying, that has a consequence once you have ascertained a child is Aboriginal or Torres Strait Islander. Clause 43, which we will get to in a moment, contains presumptions that ameliorate what I have described as the 'native title' definition in clause 3.

Just staying with clause 42, the stipulation in clause 42 rises to 'active efforts to ascertain'. That, if I am right, is an effort that takes place prior to what would become a mandatory family group conference. I flag that we see references in clause 43 about presumption in a way that looks more fit for purpose than the definition in clause 3, but which might be matters that are coming to light at a family group conference.

The question might be: is it enough and is it appropriate to conduct the active efforts ahead of the family group conference, which might actually not otherwise occur at all because it is not mandated if those active efforts do not ascertain the child as an Aboriginal or Torres Strait Islander child, and so the rest of the provisions do not apply, including the family group conference? Is the minister satisfied that we are not going to see children missed, as it were, under that active efforts stipulation?

The Hon. K.A. HILDYARD: I am confident about that. Again, I speak to that period of implementation and involvement of the Aboriginal community in how we bring this to life in a way that is absolutely respectful of Aboriginal community members and organisations.

Mr TEAGUE: Is it right, therefore, to regard the government's attitude to this as being one in which the nature and extent of those efforts is not actually core to the risk of missing a child—that through the other mechanisms the government is confident that ascertaining a child is not going to be a major risk in this regime? The 'active efforts' is there to stipulate something, but the risk is not great, as it were?

The Hon. K.A. HILDYARD: The short answer is yes. Again, the implementation will be important. The standard of active efforts themselves also speaks to a timeliness, a thoroughness, a practicability and a purpose, so I think in terms of how we apply those active efforts that will be very helpful—and also how we adhere to that definition in clause 3 that goes to the tripartite test and, again, how Aboriginal people inform us in that regard.

Clause passed.

Clause 43.

Mr TEAGUE: We see in clause 43 what is described as provision for 'presumption as to acceptance by the Aboriginal or Torres Strait Islander community'. I suggest that the heading does not quite give the clause justice, in that it is doing more than that to ameliorate what might otherwise be rather harsh consequences of the clause 3 definition, in that it is both ameliorating the question of acceptance and, importantly, it is also extending the test as to 'regards oneself', obviously in the context of a child.

As I addressed at clause 3, clause 3 for whatever reason, I am not sure, retains or applies again what I have described as the native title definition. The minister has described it as the tripartite test—the well-established test—which is all very well for purposes including native title, establishment of entitlement to do other things, and there is a whole of range of ways in which that is applied. For these purposes we are talking about, by definition, children, and in terms of the eligibility for therapeutic, beneficial receipt of government services.

We see here the amelioration of the definition to the extent that the definition in clause 3 perhaps does not have a great deal of practical work to do. Might it be read for practical purposes—the relevant definition is 'Aboriginal person' in clause 3, but for practical purposes the definition is best sourced at clause 43; is that right?

The Hon. K.A. HILDYARD: I think the definition you are talking about is wider than a 'child', so having regard to what you have just raised, a rebuttable presumption as to acceptance by community has been inserted. That is considered important in this statutory context where under later provisions in the bill the court will be required to, for instance, consider if active efforts have been made before making certain final decisions, whether a respected person is involved, etc.

Mr TEAGUE: Yes, and I might address that briefly when we get to clause 57. I appreciate that it is not only children who are relevantly Aboriginal persons for the purpose of the act. Might I posit, then, that for the purposes of identifying Aboriginal children for the purpose of the act, clause 43 is really the go-to in that it is addressing both the question of how one might regard oneself and a child not necessarily regarding themselves as anything in particular other than a child.

But in paragraph (b) it is extending the definition in clause 3 to a member of their family, which seems sensible, and that is why I say the heading does not seem to do the clause justice fully. Then in terms of acceptance, maybe for practical purposes, paragraph (b) does the work of acceptance already in the first place, so that regarding of the child as Aboriginal on top of the fact that they are Aboriginal is the relevant work. Is that a fair characterisation of the clause?

The Hon. K.A. HILDYARD: Yes.

The CHAIR: That is your answer to the question?

The Hon. K.A. HILDYARD: Yes.

Mr TEAGUE: The third question is: in what circumstances outside of clause 57 is it anticipated that there will be a contradictor or someone else withstanding who might be leading such evidence as is referred to there? The clause talks about 'the absence of evidence to the contrary'. Who is interrogating that and who is leading that evidence?

The Hon. K.A. HILDYARD: There is not anything contemplated. I guess it is there should anybody raise a particular issue. It is not ruling out that that could happen.

Clause passed.

Clause 44.

Mr TEAGUE: I note that in clause 44 we see the restatement of the principle. I do not know that there is anything new or that the minister would like to add about that. Clause 44 is restating the Aboriginal and Torres Strait Islander Child Placement Principle. It is there; it is now contained within part 4. Is there anything the minister would like to say about the context of that?

The Hon. K.A. HILDYARD: No, other than I think the key thing is to look to clause 45 about how we are embedding it to the standard of active efforts and the test about whether or not active efforts have been adhered to.

Clause passed.

Clause 45.

Mr TEAGUE: We have referred to the ALRM's problem with the word 'timely' and whether or not there is necessary foundation for caution about that. The standard of active efforts is tied to the application of the principle. I might perhaps invite the minister to describe anything more broadly about how this standard of active efforts is applied, but also to perhaps confirm if it is true that it is also relevantly informing active efforts for the purposes of clause 42.

The Hon. K.A. HILDYARD: Yes. First of all, I note your comment about ALRM. Again, I appreciate all the feedback that we have received and had to weigh up in terms of a slight, and sometimes larger, diversity of views. Active efforts are described by SNAICC themselves as thorough, timely and purposeful efforts that aim to ensure an Aboriginal child's connection to family, culture, community and country are maintained at every stage of engagement with the child protection and family support system. We have taken SNAICC's definition because that is also the definition and the standard that we as a government—and, indeed, as I said, every jurisdiction around the country—have signed up to in the national plan and the first action plan.

Clause passed.

Clause 46 passed.

Clause 47.

Mr TEAGUE: We are now dealing, in clause 47, with the principle of Aboriginal and Torres Strait Islander family-led decision-making. Perhaps I will invite a wider ranging response than just this, but in the context of mandated family group conferencing for children the subject of this part, is there anything in particular that the minister would seek to highlight in terms of the principle stated in clause 47?

The Hon. K.A. HILDYARD: Probably to draw the member's attention to the review. We received absolutely consistent, positive feedback about embedding Aboriginal family-led decision-making in the legislation and requiring active efforts to apply this model for all significant decisions, right across the system relating to Aboriginal children and young people. The feedback on this part was very, very clear. It is a new part and it is in there because it is really well established that Aboriginal families and communities are best placed to make decisions relating to the care and wellbeing of Aboriginal children and young people and that when Aboriginal families' voices are privileged in decision-making this does lead to better outcomes.

So through this bill we are fulfilling that commitment to embed this principle of Aboriginal family-led decision-making. We want to absolutely elevate the existing departmental policy framework for Aboriginal and Torres Strait Islander family-led decision-making through embedding it in the legislation and, as you mentioned, this clause will be particularly enlivened through the clause relating to family group conferencing being offered to Aboriginal families.

Clause passed.

Clause 48 passed.

Clause 49.

Mr TEAGUE: Clause 49, still within part 4 and the beginning of division 4, which provides for the recognition of Aboriginal and Torres Strait Islander entities, empowers the minister to recognise certain Aboriginal and Torres Strait Islander entities for the purposes of the act.

This is a new concept within a new part and I think I have described it in various ways as a sort of courageous step of government, because it is really putting both trust and funds in what might be anticipated to be an entity or entities outside of government and I guess there is a risk that it might be characterised as an abrogation of responsibility, or an abdication of sorts of the responsibility to do that important work within government.

In terms of just stepping through it, there seem to be two means by which an entity can be so recognised. The first is on an application by an entity that might be so eligible, or on the minister's own motion. Is there any eligible entity that the government is aware of that is aware of this and is expected to apply and, in the same breath, is there any such entity that the minister has presently in mind to proceed to recognise for the purposes of clause 49?

The Hon. K.A. HILDYARD: The first thing I would say, just by way of background, is that again in the comprehensive review the vast majority of stakeholders and people who attended community consultations absolutely agreed that the legislation should explicitly provide for the progressive delegation of legislative functions to recognised Aboriginal entities and, again, all jurisdictions around the country and Aboriginal partners have agreed that the only way to reduce the over-representation of Aboriginal children and young people is to transition to and strengthen Aboriginal-led organisations and their role in the system.

In terms of the question about whether this is—I cannot remember the exact words—abrogating responsibility, absolutely not. This is taking responsibility to do absolutely the right thing that Aboriginal people have told us for some time needs to occur.

The first action plan—again, all jurisdictions have signed up to that—and South Australia's Closing the Gap implementation plans specifically include the commitment to legislative change, inclusive of the commitment to recognise self-determination, one of those three principles I spoke about, and family-led decision-making to implement the Aboriginal Child Placement Principle to the standard of active efforts and the ability to delegate legislative functions to Aboriginal entities.

These provisions are intended to enable the broader goal of transition over time to the Aboriginal-controlled sector and structural transformation that will much better support better outcomes for Aboriginal children and families. It is the right thing to do. Implementation will, of course, be supported by the government's broader commitment to continuing to strengthen the Aboriginal community-controlled sector and our work through the national framework and those commitments that I mentioned under both the state and the national level Closing the Gap agreement.

Again, I think it is really important to note the implementation period in relation to this clause and to recognise that delegation provisions will only be implemented at the discretion of the CE and with the agreement of a specified recognised Aboriginal or Torres Strait Islander entity or a specified member of a recognised Aboriginal or Torres Strait Islander entity and for those particular powers and functions as agreed.

Mr TEAGUE: Perhaps the minister chose deliberately not to answer the question. The core of the question in those two limbs was: is there any such eligible entity that it is anticipated is going to take advantage of the application process? The second part is: is there any such entity that the minister has in mind, any expectation of recognition for the purposes? That is really question one all over again.

The Hon. K.A. HILDYARD: What is fair to say is this provision has elicited a lot of anticipation and excitement because finally we are taking a step forward on what Aboriginal people and communities have told us for a very long time needs to change for that over-representation to be addressed.

Of course, there are existing Aboriginal community-controlled organisations, but it is my hope that further entities evolve and strengthen over time. As I said, that is certainly part of the commitment through Closing the Gap and through the national Safe and Supported plan and the first action plan. It is the right thing to do that we keep strengthening the sector. Again, that implementation period will be really important in this regard.

Mr TEAGUE: On the face of it, it is a new process. I take that answer to be a way of saying no but also of indicating that there is a process that is subject to this and that whoever comes out of the woodwork will come out of the woodwork and whoever the minister might give consideration to will be a matter for the future and is not preloaded.

I notice then as well that subclause (2) among the balance of the provision sets out a process by which there will be a manner and form of application determined by the minister and information that may be required by the minister, and so on. In terms of those manner and form provisions that are subject to the balance of clause 49, is that also as far as we have got, or has the government prepared and has ready to go such manner and form as will meet the criteria particularly for those eligible entities that might be wishing to apply?

The Hon. K.A. HILDYARD: We do need to consult about that but insofar as that question about being ready to go, there are Aboriginal community-controlled organisations right now that are in this space and doing particular work very much aligned to what is in the legislation. But we will do deep consultation and this will be a really important part of our implementation process. The newly formed peak body Wakwakurna Kanyini and, of course, SAACCON will be really instrumental in that consultation and implementation process.

Mr TEAGUE: Just to be clear that, yes, clearly, there is going to be a bunch of existing eligible entities, entities that are in existence that will meet the definition of eligible entity. The question was a manner and form question: that is, should, for example, any of those that the minister has just mentioned be interested to apply, that the work to constitute a form of application has not yet been done and, so far as the manner and form aspects, any of those eligible entities will need to—that is work to be done in the future. There is nothing the minister has got to show and tell about that right now.

The Hon. K.A. HILDYARD: Yes.

Clause passed.

Clause 50.

Mr TEAGUE: Clause 50 is really where the consequence of that recognition occurs because that is where the chief executive is now empowered to do a delegation, the minister having recognised the entity. Clause 50 got a mention earlier on because it also has this reference to carving out prescribed functions, none of which exist at the moment but might. Okay; right, we understand. So it is a broadranging power for the chief executive to delegate once there is a recognised entity or entities to whom to delegate functions.

Is it presently anticipated by government that that scope and range of delegation powers of the chief executive is, for present purposes, unlimited and that it might be anticipated that the result of this is that really quite substantial core functions and otherwise obligations of the chief executive will be delegated both as to responsibility and funding to one or more such recognised entities?

The Hon. K.A. HILDYARD: I think the important thing to point out is that any function can be delegated; however, before that can occur there are very clear provisions at (5)(a), (b), (c) and (d), which set out in short, to summarise those, what has to happen prior to that delegation of a particular function.

Mr TEAGUE: And then to understand, we have two forms of delegation. Firstly, the specified function, and then secondly functions of a specified class. Is it more than hypothetical? Is a good example of such a delegation being to an entity to take responsibility for family group conferences the subject of part 4, for example, so functions of a specified class desirable that a single entity might take responsibility for family group conferencing across the board, for the purposes of the part?

The Hon. K.A. HILDYARD: That is possible, yes.

The CHAIR: Is there anything further on clause 50? One more question?

Mr TEAGUE: One more, thanks, Chair. I turn to subclause (7); it is over the page. In the context of this, on one view there is endless scrutiny that this is amenable to, so I am just looking to identify some key points. Subclause (7), as part of that delegation, empowers—although it does not oblige—the chief executive to provide such information and documents to a delegated decision-maker in respect of a child as the chief executive considers reasonably necessary to allow the delegated decision-maker to perform delegated functions.

Bearing in mind that those delegated functions might be pretty serious, broad-ranging, comprehensive in terms of the care and response to the child, is there not a tension there between, on the one hand, the consideration that the chief executive has to make about retention of documents and the sensitivity of them and all the rest of it, and then the capacity of the delegated entity actually not to be doing work with half an arm tied behind their back?

Might it not be expected that the chief executive, under a provision like this, would tend to err on the side of saying, 'Well, you are going to need everything, actually. You've got the delegated function. Here are all the documents and information that we've got about the child.' Is that not going to require some form of monitoring and oversight, return of document process so far as the department is concerned to satisfy itself that there are not these discrete risks, both in terms of a partly informed delegation on the one hand and a risk of things getting outside the department's control on the other, just to raise a couple of examples about how that might work?

The Hon. K.A. HILDYARD: I think it is a tension, and that is one that we will have to work through. This is a brand-new provision. It is a provision, as we have spoken about at length, that is about doing that right thing to delegate this authority, and as part of that the chief executive will have to balance how we provide those documents that are reasonably necessary for a delegated authority to undertake work for a child or young person. It is a tension and it is something we will have to work through.

Clause passed.

Clause 51.

Mr TEAGUE: Clause 51 deals with the costs of the entity in performing the delegated functions. Again, this is new territory. This is now delegating power and saying the department will be good for the costs of doing so. It is a pretty brief clause that is couched in general terms. I recognise that clause 50 deals with matters of memoranda of understanding and so on. Is the need for the clause in the first place to somehow recognise that this is a serious form of delegation and that the department is actually obliged in a general sense to pay costs?

But is it otherwise analogous to the costs of third-party providers of services and that there will be the usual process of invoicing for services and oversight of that kind? Or is it anticipated that there might be some overarching budget in the broad for the provision of functions so delegated?

The Hon. K.A. HILDYARD: Yes and yes to your first two questions. Yes, this is about being very clear that this is a very serious delegation. In answer to your question about will it operate in the same way where we strike agreements with particular non-government organisations now to provide particular services, we are provided with an invoice that is paid for the provision of that particular service.

Clause passed.

Clause 52.

Mr TEAGUE: I indicate that my consideration of a question on clause 52 might be wrapped up with clauses 53 and 54. They are the three clauses that deal with the special provisions for family group conferencing for Aboriginal and Torres Strait Islander children and young people. Apart from highlighting the mandatory aspect of it, for the purpose of part 4, I am really just giving the minister the opportunity to address any matters that the government regards as of particular significance in terms of the provision of family group conferencing for the purpose of this part and all three clauses.

The Hon. K.A. HILDYARD: Again, this clause responds to significant feedback from the community about the need to require that a family group conference is offered to Aboriginal children and young people. We know that family group conferencing has a greater than 90 per cent success rate and that, when we can convene a family group conference that brings together extended family to make decisions about their child or young person in a way that is constructive and facilitated and aims to bring people together around the interests of that child, those family group conferences can make a profound difference.

We have listened to community and that is why we have embedded this provision about requiring that a family group conference be offered. Again, the review showed really strong support, and various reports all over the country and indeed all over the world have expressed support for the use of family group conferencing. In a 2022 report, the Trust in Culture report, Kate Alexander reiterated those calls for more resourcing for family group conferencing.

Of course, we have already invested an additional $13 million into family group conferencing and we want to see family group conferencing increasing, because we know that the results absolutely help to keep families safely together and connected to culture, country, community and kin.

Mr TEAGUE: I appreciate the minister's response. It might be then a more particular question in relation to clause 54. I guess in light of that characterisation of family group conferences more generally, is there any reason—outside of resourcing or setting some sorts of limits on the mandate—why this mandatory regime isn't applied to the whole act?

The Hon. K.A. HILDYARD: Certainly, it is potentially available to a range of other families, and provision is made for that in part 8 of the bill. Those family group conferences can be convened by different parties from what we set out in this provision, so it is certainly available and, again, it is showing very good results, and it is being taken up by other families as well. We have focused, in seeking to embed to the standard of active efforts, on the Aboriginal and Torres Strait Islander Child Placement Principle and, in response to that very strong feedback, we have included this particular provision.

Clause passed.

Clause 53 passed.

Clause 54.

Mr TEAGUE: Clause 54 provides specifically that the coordinator of family group conferences is to be an Aboriginal and Torres Strait Islander person, and that is then a superadded provision in comparison with what will be the section 94 and 110 regime. Is there anything that is particularly informing that, in the context of a mandatory process? Is the government satisfied that that is always going to be readily possible and will be able to occur?

The Hon. K.A. HILDYARD: It is certainly the case that we do think there are—I cannot remember your exact words—enough Aboriginal people to perform that function. There will be particular circumstances, of course, where Aboriginal families may not want a particular Aboriginal person and may choose another facilitator.

Mr TEAGUE: I appreciate the answer in a way in that there is clearly an emphasis on the importance of family, kinship. The stipulation in clause 54 is talking about a requirement that the coordinator be an Aboriginal person. That Aboriginal person might be perfectly Aboriginal but also perfectly unrelated to anyone involved in the particular family group conference. Does the government anticipate such a circumstance, and is there in any event a virtue therefore in that generalisation, because it is not as if it were requiring that the coordinator have any special connection to the child, family or kin, but just that broader stipulation?

The Hon. K.A. HILDYARD: Yes.

Clause passed.

Progress reported; committee to sit again.

Sitting suspended from 12:59 to 14:00.

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