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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 31 October 2024.)

Clause 94.

Mr TEAGUE: At clause 94, we are in the midst of part 8, dealing with family group conferences. Clause 94 deals with the chief executive's convening of a family group conference. I just go first to subclause (1)(a), the first of the two criteria of the exercise of the discretion. The chief executive needs to suspect that the relevant child or young person is at risk of harm. That raises the point about the new mandatory reporting threshold of 'serious harm'. It might be observed that that is ameliorating that new threshold, so it is a lower threshold for the exercise of the discretion.

I might just give the minister the opportunity to address that application of the lower threshold in the broad, meritorious in my view, in terms of the particular consideration the government has given to the retention of that test alongside the new mandatory reporting threshold of serious harm.

The Hon. K.A. HILDYARD: In short, we want to make sure that we have a legislative foundation in which to offer as many families as possible a family group conference.

Mr TEAGUE: Yes, okay, it was pretty broad, but the question was directed at least to the topic of the operation that is ongoing in the bill of these two thresholds. The minister's response begs the question: why have a threshold at all? I had not quite gone there. But what I am really directing that first question to is: where has the government's consideration gone in terms of establishing a mandatory reporting threshold of serious harm on the one hand—okay, so far, so understood—and then here, in (1)(a), retaining some sort of a threshold for the exercise of the discretion, but not serious harm, not the new mandatory reporting threshold, and taking it as given, for the purposes of the question, what if any specific consideration has been given?

To avoid the risk of repetition, perhaps in repeating the question, I will enhance the question: what consideration has been given to retaining a threshold at all, in circumstances of the minister's answer just now, and, given that threshold, what work has been done to consider: well, okay, it is harm, it is not the new mandatory reporting threshold of serious harm?

The Hon. K.A. HILDYARD: I do think the member understands this, but I just want to make it very clear: the new threshold relates to mandatory notifications; that requirement for those who are deemed to be mandatory notifiers—and we have expanded that group of people as we have discussed—to make a report. This does not, of course, stop anybody from making a report about a matter about which they have concern.

We have spoken at length about why we have moved the threshold in terms of that volume of reports and that desire to make sure we are ensuring that we provide particular support to those children and young people who are most at risk. What we are also doing through this clause, of course, is, when there is a notification of harm, we want the CE to have the ability to respond in a variety of ways. We think, as I have spoken about at length in this place very often, family group conferences are an exemplary way to respond and hence why included in this clause is this provision to enable the CE to offer that as an action in relation to a notification about harm or potential harm.

Mr TEAGUE: The third question again goes back to the new mandatory reporting threshold. I just stress: there is no bogeyman on this topic. The new threshold is what it is and to the extent that it needs better understanding in the community, that is a matter for mature debate. We have addressed at the relevant part of the bill the risk that people are just going to keep on reporting in the same way as they have for 30 years and they are going to need to get to a process of, 'Right, this is a new regime where we want to hear mandatory reports about serious harm.'

We have also covered the territory, 'Why not mandate family group conferences across the board?' We have covered that along the way; that is what it is. There is a question, therefore, about the retention of any threshold for the exercise of the discretion of the chief executive. Why have a threshold at all? Why not just say that the chief executive, at the chief executive's discretion, can convene a family group conference? For all of those questions there has been plenty of opportunity for the government to engage and respond on that front.

The third question for the purposes specifically of (1)(a) is in the context of the new mandatory reporting environment. Presuming for a moment that that reform is successful in terms of changing the behaviour of mandatory reporters, and taking on board that the minister is perfectly entitled to respond that people can in all sorts of different ways report risk of harm, in the broad if the mandatory reporting—the source of the overwhelming amount of reporting that is coming into the department—is at the serious harm level, does it not beg the question: how is the CE going to know in a comprehensive way about how to exercise the discretion in terms of risk of harm when all of these mandatory reports are now coming in at risk of serious harm? Is there not a risk that there is a whole cohort who would have been the subject of reports over the last 30 years who now will not be the subject of reports, and therefore what is the chief executive drawing on for the exercise of the discretion beyond those mandatory reports of serious harm?

The Hon. K.A. HILDYARD: There are a few things. First of all, we know and we absolutely accept that getting the thresholds right is really important to our ability to effectively respond to children at risk of harm or at risk of significant harm, which is why that particular question was a significant one in the review and why there was a lot of commentary about that in the review. We believe that through the legislation we have responded in the best way in terms of taking account of the breadth of views that were provided in the review, and indeed that have been the subject of commentary for many years in South Australia.

What I would also point the member to is clause 4 and clause 5. Clause 4 defines harm and significant harm and clause 5 provides a further definition of 'at risk of harm' and 'at risk of significant harm'. In terms of understanding that difference and how we respond, I would point him to those definitions.

I would also come back to something I have said previously in response to the questions about those definitions: of course, as is the case right now and will be the case over the two years of implementation, we will be developing significant practice guidance that sets out harm and significant harm, and the sorts of actions that are available to those who receive and deal with those notifications to determine what is the best course of action, whether that be a family group conference or another sort of action in relation to that particular notification.

Clause passed.

Clause 95.

Mr TEAGUE: Clause 95, still within family group conferences, deals with procedures and attendees at family group conferences. I have said the word 'serious' a number of times in the last few minutes. I have misspoken, in that the definition is 'significant'. So for Hansard purposes, or for the record, I am using 'serious' and 'significant' with equivalent meaning, and 'significant' is the defined term in clause 4.

In terms of the procedures and attendees at family group conferences—I am conscious that this is a subject of some longstanding practice—the chief executive has the discretion to convene them and there is a certain amount of initiative and power that is devolved then to the coordinator of a family group conference. Is the government satisfied that with the chief executive having exercised the discretion, the coordinator has sufficient power and information to make their own inquiries as to necessary participants and dealing with circumstances, including the need to exclude would-be participants and including along the way?

The Hon. K.A. HILDYARD: Yes, and I say that because I have delved deeply into the operation of family group conferences here in South Australia and have had discussions with those who provide family group conferencing. They are deeply immersed in that process, deeply skilled at that process in terms of not just the actual facilitation of the conference but also, in all of my conversations with those practitioners, it is very, very clear that there is a significant amount of time and expertise expended in setting that family group conference up. That, of course, includes developing relationships with the parties who will be part of that family group conference and also ascertaining who should be in that family group conference and how that discussion will be facilitated. So, yes.

Clause passed.

Clauses 96 to 98 passed.

Clause 99.

Mr TEAGUE: We move to part 10 as proceedings before the Youth Court of South Australia, and clause 99 deals with applications for court orders. I maintain this focus on the use of the threshold of harm as distinct from significant harm. While I think I have indicated there is an ameliorative use of that threshold for the purposes of clause 94 that I welcome, to the extent that there is any threshold at all, in clause 99 we see it rather working the other way. The provision in subclause (2) of clause 99 provides:

…an application for an order under this Part…may be made—

(a) if the applicant—

(i) reasonably suspects that a child or young person is at risk of harm…

These are, then, serious and consequential steps. Again, by reference to the new mandatory reporting threshold of significant harm, how, to start with, does (2)(a)(i) as a threshold square with the reform that is the subject of the new mandatory reporting threshold in this sense? Is it a drafting error that might be correctable?

The Hon. K.A. HILDYARD: I point the member to (2)(a)(i) and (ii) needing to be read in conjunction with one another because, of course, the word 'and' is significant in between (2)(a)(i) and (ii). It may be that that opinion does not exist that the making of such an order is necessary or appropriate to protect the child or to allow the performance of particular functions under the act in relation to the child. I would encourage the member to think about those two parts together, because it may be that that action is not required if there is not that concern that there needs to be that order made to protect the child from the risk of harm.

Mr TEAGUE: Yes, and I have. If we go from that first reference to the one that the minister has then just put in the conjunctive, that (2)(a)(ii)(A), we see both of those criteria referable to harm. It was really the flow-on question. Yes, it is right to shine a light on it. They are both referable to the threshold of harm, so the question is the same. You have on the one hand the applicant reasonably suspecting the lower level threshold of harm; that applicant also needs to be of the opinion that the making of the order is necessary to deal with the harm in both cases.

Now, if the minister was saying, 'I point you to the need for that person to be of the opinion that something needs to be done to prevent the risk of significant harm,' then alright, but it is the same threshold. Yes, if the order was not required in order to ameliorate the risk of harm, sure, it would be futile, but the suspicion and the opinion as to the necessity both turn on that lower threshold. In the circumstances, how is that squared away with the new mandatory reporting threshold of significant harm in terms of going to the court for the seeking of orders at the lower threshold on both the suspicion and the consequence?

The Hon. K.A. HILDYARD: My answer is pretty much the same as the answer I provided in relation to clause 95, and that is that we do want the CE to be able to act. We think it is really important that should there be a suspicion that there is a risk of harm and a belief that it is necessary to put in place an order to protect a child or young person, we want to have that ability to act as a foundation in the legislation.

Again, as per my answer in relation to clause 95, we have thought very carefully about the provisions around mandatory notification and have considered the extensive debate that has occurred in this state about that, including that which occurred through the comprehensive review of the act, and we think that we have landed that in the right place, particularly when you couple that with the intention to have training, development, practice guidance, etc., developed over the next couple of years in consultation with practitioners.

Mr TEAGUE: I appreciate that, and I think clause 94 might have been the—

The Hon. K.A. HILDYARD: Sorry, yes, clause 94.

Mr TEAGUE: It is not just the mandatory reports that the chief executive is acting on, obviously, but I am dwelling on this point about coherence in terms of if there is a policy objective to deal with mandatory reports in terms of a new threshold of significant harm; we see that is the subject of part 7. Clause 72(1)(a) sets the threshold of significant harm for the prescribed person to make the mandatory report—that so much is clear—and in division 2 we see the chief executive assessing and taking action, and then assessing circumstances.

All of them, clauses 73 to 75 inclusive, are on that threshold of harm, subsequent to the mandatory threshold for the report of significant harm, and so where that then sounds here in clause 99, is that the starting point for those voluminous reports that are the subject of data informing the department, that is now effectively coming in at significant harm? Is there an as yet undisclosed body of information, reporting, feedback to the minister or the chief executive that is expected to be coming in still at this level of harm, and absent the general? If we are going to be receiving mandatory reports of significant harm now, how does it square away with the 73 to 75 process, and then in turn find itself ultimately—at least in one sort of consequential way—the subject of an order that is sought by the chief executive under clause 99(2)?

The Hon. K.A. HILDYARD: There is a coherence and, as I have spoken about, I think that implementation period will be really important in terms of how mandatory notification is approached. In terms of that implementation period and developing that understanding, as I have said in here before, we still want people to feel confident should they have a suspicion about a particular harm that should it be necessary for the CE to take particular action that there is a mechanism for them to do so.

The CHAIR: Is there any additional information, minister?

The Hon. K.A. HILDYARD: I think the other point to be made is that, yes, there is mandatory notification, and then there is community, for want of a better word, just to sum up that general community notification about a suspicion of harm. But the department also ascertains information from a range of other sources. It may be through discussions about a particular case plan with the Department for Health and Wellbeing or the Department for Education. So it is very important that that information is also considered in a holistic way in determining whether particular action does need to be taken as per subclause (2)(a)(ii), or (i) and (ii) together, but (2)(a)(ii) in terms of this clause and the clause that we spoke about previously.

The CHAIR: We are on clause 99. You have had your three.

Mr TEAGUE: Have I? I thought I had had two.

The CHAIR: Best case scenario, you have had three plus a supplementary. It is three. Is it going to be a quick one?

Mr TEAGUE: Yes, I think so.

The CHAIR: That does not reassure me.

Mr TEAGUE: It can be no more than a reference, with the Chair's permission.

The CHAIR: Okay, I will let you have it.

Mr TEAGUE: I refer in this sense to clauses 78 and 79, that is, directions that a person undergo certain assessments, all at the threshold of 'harm' as opposed to 'significant harm', and at clause 79, drug testing, again the risk of 'harm'. Perhaps of keenest relevance in this regard is clause 84(2), again, at the threshold of 'harm'. It might be convenient to come back to 84(2) in a subsequent context, but those are the references.

The Hon. K.A. HILDYARD: I can probably just take that as a comment. I am happy to continue to explore that. I think there will be other opportunities.

Clause passed.

Clause 100.

Mr TEAGUE: At clause 100, we are talking about parties to the proceedings, and obviously the applicant is one of those parties. In this context, I refer to the connection back to clause 84(2) and the threshold of risk of 'harm' being applied. It is a marquee provision because clause 84 is dealing with action following the removal of a child or young person, and clause 84(2) is providing a pretty full-bore stipulation that the child or young person must not be returned to the custody of a parent or guardian in the case the chief executive reasonably suspects that if the child or young person is so returned then the child or young person is at risk of 'harm'.

So we see there the application to the court, among other means. Removal occurs at the threshold of 'harm'. Return is prohibited at the risk of 'harm', yet we are operating in circumstances where that whole universe of mandatory reporters are exercising their obligations now at the level of 'significant harm'. It sounds in terms of the broader context of family capacity, family support, reunification, all of the above, that the mandatory report—let's say from the teacher, the clinician—is at 'significant harm', yet the suspicion that the chief executive forms on reasonable grounds is at the level of 'harm' and the prohibition to return is also at the level of 'harm'. I just invite the minister to address the coherence, or lack thereof, at that point.

The Hon. K.A. HILDYARD: The decision to remove a child without a court order, as you have said, is—another definition of threshold is 'significant harm'—obviously, for want of a better word, a very significant decision. As I have spoken about in relation to the other clauses, we want to have that foundation for the CE to be able to act if there is a risk of harm or if they deem that there is not a risk of harm. That is why there is that twofold way in which a number of these clauses are framed: because we want the CE to have those powers to act.

Mr TEAGUE: I appreciate that. It is for that reason I have been at some pains to highlight a meliorative use of that threshold on the one hand and what might be a rather contrary disconnect between the two, as to coherence in the bill about the threshold for removal and return, for example. To use the clause 94 circumstance in terms of the exercise of the discretion, call that, 'Harm threshold: good (if you are going to have a threshold at all)'. I understand it is not mandatory for the chief executive to call on a family group conference. There is a threshold that is applied. The chief executive needs to form a view that there is a risk of harm. It is the lower threshold—good. If you are going to have a threshold, that is an example of a good one.

That might be then contrasted, in particular, with the clause 84(2) scenario, where there has been a removal, as the minister describes, in circumstances of risk of significant harm that has either been reported or, without an order, the chief executive has formed that view somehow. Therefore, it is kind of like the sheep yards in the pastoral country with a great big funnel for entry. In you come for the water, but once you are in, then there is a very narrow pathway out and, as a result, once removed, you are not going readily back again. That is there on the face.

I have put the question as to whether it is a drafting error. If it is not and therefore it is using, you need to satisfy either the chief executive without an order that there is significant harm involved. That might come off a mandatory report of significant harm. Once that has been achieved, a child has been removed from his or her parents, the return under 84(2) is not happening while ever there is a risk of harm. I hope the proposition is clear and, to the extent that it is not a drafting error, how are the two coherent and is it, in fact, a deliberate endeavour on the part of the government, in a sense, to say the removal without a court order is happening at a high level, but, once removed, there is no reunification while ever there is even the lower level of risk remaining?

The Hon. K.A. HILDYARD: The most simple way to answer that is to say we do not want to send children back unless we are convinced that there is not a risk of harm and we want to make sure that the chief executive has the power to take particular actions in relation to that assessment in the context of that child.

Mr TEAGUE: My last question in this run, if you like: why not at least empower the chief executive with the balancing discretion, to say that it is within the power of the chief executive not to return, where the chief executive is still reasonably satisfied of risk of harm, but that it is also within the power of the chief executive to return, notwithstanding that there is a perception of harm—no longer significant harm, the source of the removal, but there is a discretion at that point? This 84(2) leaves it at the high level. To the extent that that is deliberate, I query it and I just invite the minister to say anything further about how those two might work together.

The Hon. K.A. HILDYARD: It comes back to safety being the paramount principle in this legislation. We do not want to return a child if the chief executive deems that it is not safe to do so. We do want them to have the power, as we have spoken about in relation to other clauses, to take particular action.

Clause passed.

Clauses 101 and 102 passed.

Clause 103.

Mr TEAGUE: We are here dealing with other interested persons who may be heard and the provision for the discretion of the court to grant standing to what are still defined categories of person, so it is a limited discretion. They are a member of the child's or the young person's family, a person who at any time had the care of the child or the young person, or a person who has counselled, advised or aided the child or young person, and a discretion of the court to hear the manner in which those submissions—to the extent that they are largely going to be submissions—are made by any of those persons.

The question is: why limits on the court's discretion at all and is there an endeavour specifically to encompass everyone who might have participated in a family group conference, for example, or is there any other measure according to which those persons have been identified?

The Hon. K.A. HILDYARD: First of all, this is in the main an existing clause. The only difference is to clarify that the court can determine the manner and the form in which submissions are to be heard, which is actually what occurs now in practice. The change is just about clarifying that, and in terms of the people or the groups of persons that are listed there we believe that does cover the breadth of people who are already in practice, through the use of that particular clause, involved in any proceedings.

Mr TEAGUE: I think just one more at this point. Has the government given any consideration to whether there is any direct capacity for, either at the court's discretion or at the application of any such eligible person, funding to be provided such that they might be on a more equal footing particularly with those who are appearing for the department in those proceedings?

It is something that is well familiar to the minister, I am sure, this concern about the unequal capacity provision for those who might be involved in proceedings seeking to be heard and participating and so on. The question is: in conjunction with the exercise of the discretion to grant an opportunity for those parties to be heard, what consideration has the government given to providing something closer to equality of capacity to appear?

The Hon. K.A. HILDYARD: I do really understand the question. I think it is an important question. Of course, in relation to clause 103, we are not talking about particular people being parties but rather being empowered to be heard, which does not require representation as such, but I do take your point. Certainly, as the member would know very well, there are particular avenues through which people can seek advice, depending on their particular circumstances. I am sure you know those avenues well, and that continues to be the case.

Certainly, two of the groups that we will be working with during the implementation phase are of course the Carer Council, the peak body connecting foster and kinship carers, and also our Direct Experience Group. That is certainly a matter that we can discuss with them in that implementation phase.

Clause passed.

Clauses 104 to 109 passed.

Clause 110.

Mr TEAGUE: At clause 110, we deal with the court's discretion to convene a family group conference. In terms of the operation of that court-convened family group conference, I would be interested if the minister can inform the committee in terms of particular consultation with the court about this juncture and whether or not there is sufficient funding for the court to do so. It is not going to make the court concerned about scarcity of resources when it has not happened until the court convenes it. Has there been any other input, from a practical point of view, from the court about how that might best be managed by the court?

The Hon. K.A. HILDYARD: What I can say, in a broad sense, is that we obviously worked closely with the Attorney-General and there was significant consultation with the Attorney-General, his department and, of course, the Youth Court. We are confident that resources will be available to be able to have the Youth Court convene those particular family group conferences.

Mr TEAGUE: I am grateful for that answer. Has there been any direct consultation with the Youth Court, and what is the source of the minister's confidence that resources will be applied? If there is a source of that confidence, how will those resources be applied?

The Hon. K.A. HILDYARD: We do understand the needs. I am not going to go into the detail, but I can absolutely say that yes, there has been that consultation and lengthy discussions with the Attorney-General and the Attorney-General's Department, and we are satisfied that those resources will be sufficient to enable the Youth Court to convene those family group conferences as per this clause—and they do now.

Clause passed.

Clause 111.

Mr TEAGUE: I have just been looking for the most convenient way to wrap up the part; it might just as well be at clause 111, but it is a question that relates to the part as a whole, really. The discretion to convene a family group conference is one super-added process. In terms of the range of the court's functions, obviously the Youth Court has a significant central role to play and that is very much the subject of part 10.

What consultation in relation to the bill, if any, has the minister undertaken with the court, with the judge of the Youth Court, with those professionals engaged in the day-to-day practice that is really going to be the subject of part 10? Will the minister inform the committee about the scope and nature of that?

The Hon. K.A. HILDYARD: There were a number of direct consultative meetings with the Youth Court, and we are satisfied that was a robust process.

Mr TEAGUE: If there is a corollary, at the pointy end, is there any direct consequence in terms of funding for the court's operations, for the court's infrastructure, for the court's functions more broadly, and the costs of those litigants and professionals engaged? So, funding consequences of any kind.

The Hon. K.A. HILDYARD: In the course of the consultation of course we have considered—and I think I answered that previously—any particular issues for the Youth Court in terms of personnel, etc., in terms of the introduction of the respected persons scheme, and in terms of the convening of family group conferencing. We are satisfied with the outcome of that consultation and where we have landed in terms of the provisions right across this particular part.

Clause passed.

Clauses 112 to 140 passed.

Clause 141.

Mr TEAGUE: I am conscious that this comes off the back of a regime the subject of part 11 in terms of planning, and then we are well into part 12 and placement and contact arrangements. So I do not wish to deny the minister the opportunity to reflect on the application particularly of part 12 more broadly, but I just as a matter of convenience go to clause 141 and the review of contact arrangements by the review panel. I ask a question about the consultation around the operation of the panel and the satisfaction—and how so—the minister has formed in terms of the operations of the panel, its make-up and its functions in the service more broadly of part 12.

The Hon. K.A. HILDYARD: First of all, as per my answer to some previous questions, of course this was also canvassed in the comprehensive review, where around 1,000 people or organisations responded, and then of course we subsequently had the feedback period. What is important to note here is that consistent with recommendation 74 of the Nyland royal commission contact arrangements will remain reviewable by CARP.

However, the CARP process has also been strengthened by introducing a four-week period within which a CARP review has to be completed, requiring that the chair of CARP not be an officer or an employee of the department, requiring CARP to have regard to the submissions of the applicant and the child or young person and requiring that CARP provide to the applicant within 14 days notice in writing of their decision and the reason for the decision.

It is very important to note that clause 13 of the bill specifically requires—and there has certainly been feedback from children and young people, to go to your question about consultation in relation to this arrangement around CARP—that the voices of children and young people are heard in relation to decisions relating to their contact arrangements. Clause 13 provides flexibility—rightly so—in terms of the ways in which a child or young person's views might be presented. So, alongside the review and the feedback process, those discussions with young people themselves have certainly been very important to the development of that process.

Clause passed.

Clauses 142 to 144 passed.

Clause 145.

Mr TEAGUE: Clause 145 comes at the commencement of Part 13—Approved carers, licensed foster care agencies and licensed children's residential facilities. I note that I might endeavour to deal with the part as a whole here. The part continues to provide for the chief executive to establish categories of approved carers, and there is a prohibition in a subsequent clause with a notional penalty attached. I would perhaps put it broadly: is the minister satisfied that the arrangements for the chief executive's establishment of categories of approved carer remain appropriate, and penalties for breach of prohibitions also? Is there any anticipation from the government as to any material change that will come about as the result of the application of part 13?

The Hon. K.A. HILDYARD: This is an existing provision in the existing Children and Young People (Safety) Act, as I am sure the member is aware. It sets out that currently we have four categories of approved carers to provide out-of-home care: foster, kinship, and specific child-only carers who provide family-based care in their own homes for children under the guardianship of the chief executive, with the assistance, as the member is well aware of, a regular subsidy and regular placement support from either DCP's Kinship Care Program directly or from one of our many outstanding foster care agencies who provide particular support to carers.

Of course, the other category is family day care or guardianship carers, who are engaged and funded through an administrative arrangement with the Department for Education to provide family-based, emergency and/or short-term care for children under the guardianship of the chief executive where there are no other family-based placement options available.

Clause passed.

Clauses 146 to 197 passed.

Clause 198.

Mr TEAGUE: We are here dealing with Part 17—Review of certain decisions under Act, clause 198, dealing with the internal review of certain decisions. My interest in this regard is particularly in relation to short-term carers—and if I can turn up the connection in the schedule, then I will. This is a change. Can the minister explain the rationale for the change in terms of the exclusion of short-term carers and the rationale otherwise for the regime for internal review at 198?

The Hon. K.A. HILDYARD: It is a really important question. The member may or may not be aware that SACAT's jurisdiction in relation to child protection was newly created in the Children and Young People (Safety) Act, and since the implementation of that act in 2018 there has already been identified a number of unintended consequences as a result of that new act.

One of the unintended consequences is that short-term carers have brought reviews in relation to long-term placement decisions, usually with family members. It has not been in the best interests of children, including very young babies, to have long-term placements with families delayed during the review process, so it is for this reason that it is only approved carers, who have cared for a child for at least six continuous months, who have the right to seek a review.

We think this amendment balances the rights of carers, who are an absolutely crucial part of the child protection and family support system, with the need for timely decision-making in relation to placements and, of course, that timely decision-making is in the best interests of a child. It is also really important to note that a range of mechanisms exist to review decisions made in relation to children in care, including, as we have just spoken, about the contact arrangements review panel and the department's central complaints unit. There are, of course, as the member is aware, additional oversight bodies, including the Ombudsman, who has the power to investigate any complaints.

Mr TEAGUE: I appreciate the answer. This might then deal with the review of decisions, the subject of clause 199. Again, for the sake of the record, I was fumbling around for schedule 1, and the prescribed persons set out in schedule 1 that speak to the change in 198. It might be appropriate to ask the question at 199, so I do not have further questions at 198.

Clause passed.

Clause 199.

Mr TEAGUE: We are still at part 17, division 2 and the 'Review by SACAT of decisions made under section 198'. Clause 199 provides for a review by SACAT of decisions made under section 198. There is a change of subject in clause 199. Clause 200, the other clause of the division that requires the views of the child or young person to be heard, is unchanged, but we have a provision now for 'Review by SACAT of decisions made under section 198 etc'—that is not me: that is the heading. Perhaps that is a convenient point at which to address the change of subject of clause 199, how that is going to operate and how SACAT is now going to function, to the extent that it has not been addressed at 198.

The Hon. K.A. HILDYARD: If I have this question right, the decision to be reviewed by SACAT is the outcome of the internal review rather than the initial decision made by the CE's delegate. The current position is that the external review is of the original decision, which does not make sense when the internal review changes or reverses the original decision of the internal review, if that makes sense.

Amendments have also been made to the existing SACAT provisions to ensure basically a change of panel members to ensure that the panel is constituted of members who have particular and appropriate expertise and experience to hear child protection and family support matters. That change acknowledges the complexity of the child protection and family support system in which the department operates and, of course, where the decisions are made.

I can go into the detail, if you like, about the changes to the panel—those changes are set out—but the SACAT panel must sit with an assessor with social work qualifications or at least seven years' experience in the child protection and family support system in every case. In addition, rightly, in the case of a matter relating to an Aboriginal child or young person, the panel must also consist of an assessor who is an Aboriginal or Torres Strait Islander person.

Mr TEAGUE: It is clear that the review is in (1)(a), a decision of the Chief Executive under 198(4), which is the internal review, that the chief executive is required to come up with a decision. So that is reviewable. The 'etc' seems to be the subject of subclause (b), and there is the opening to anything else under the act that might be prescribed by regulation. Is there anything in the offing that is new about the 'etc'?

The Hon. K.A. HILDYARD: No.

Mr TEAGUE: But it is a wideranging possibility to confer jurisdiction on SACAT by regulation, so the argument might be made—the usual point—that it is likely to be consequential and there is a balance point about bringing back amendments in terms of conferring any significant further jurisdiction on SACAT that might otherwise be the subject of (1)(b). If there is nothing in the offing, then that is good to know about and, if it is otherwise the subject of regulations that might come, that we keep an eye on those gazetted regulations.

The Hon. K.A. HILDYARD: I might take that as a comment. Of course, we have narrowed it and, no, there is nothing in the offing but certainly we can continue those discussions should there be a need to in the future. But, no, there is nothing in the offing.

Clause passed.

Clauses 200 to 202 passed.

Clause 203.

Mr TEAGUE: It might be the most convenient point to ask a question about the operation of part 18, the interagency practice review panels. Clause 203 empowers the chief executive—and there is a note to comply with any other requirements in the regulations—becoming aware of an adverse incident, to appoint a panel to review and report on the relevant adverse incident. In terms of the operation of the part as a whole, to what extent has the minister engaged in any necessary consultation, satisfied that the operation of the part will continue to serve its purpose and represent best practice?

The Hon. K.A. HILDYARD: Probably, in a general sense, the new model contained in the bill certainly builds on existing child protection related death review models interstate and similar review processes that have been adopted in South Australia, for instance, in the health context. There has been an exploration of those models. In terms of the question about consultation, a very important conversation has occurred with the child protection expert group headed, of course, by now South Australian Australian of the Year Professor Leah Bromfield about not just this particular aspect of the bill but this aspect of practice to make sure that we have this right going forward.

It is something that we will continue to speak with the child protection expert group about going forward and it is also a discussion that we have had across government in terms of getting the model right.

Mr TEAGUE: I am just checking that I have the timing right. It is a convenient point to congratulate Professor Bromfield. It was, indeed, a very happy occasion last Thursday evening when South Australia's Australian of the Year was recognised for her nation-leading work. It is appropriate to give all the plaudits to Professor Bromfield and the significant work now recently celebrated 20 years in the development of best practice child protection. That might be a comment as well.

Clause passed.

Clauses 204 to 207 passed.

Clause 208.

Mr TEAGUE: This relates perhaps more or less equally to clauses 208, 209 and 210, particularly clause 210(1). Bear in mind that we are traversing an area that involves potentially very serious criminal conduct that might be the subject of serious criminal charges with very serious penalties attached. I realise we are at clause 208, but clause 209 in particular, one might say, in terms of clause 209 dealing with the impersonating of a child protection officer, to what extent has the government's consideration in relation to these provisions, particularly the penalties attached—they are relatively nominal penalties—extended in respect of the particular conduct?

Perhaps the government might respond and say, 'In relevant circumstances, they would be the subject of serious criminal charges.' A question might be: what work does the discrete offence and penalty do in circumstances where it might be acknowledged that in many such cases, and particularly clause 209 cases perhaps, this is almost inherently of the most serious nature in terms of criminal conduct?

The Hon. K.A. HILDYARD: Are you asking about penalties?

Mr TEAGUE: Yes. I am asking what work does a nominal penalty like this have in circumstances where the most serious of criminal charges might be applied in relevant circumstances with lengthy prison terms attached, and to what extent has the government, in considering a civil penalty of this kind, said, 'Well, here's an opportunity to apply the sort of whacking penalty, for example, that applies to restrictions on publication of information that might have the same sort of breach of personal safety and security implications'? I note that on those restrictions there are penalties of $50,000 and $120,000 and so on. Here we are talking about a series of maximum penalties of $10,000.

The Hon. K.A. HILDYARD: In relation to the particular matters contemplated at clause 209, this is based on the provision and the penalties that currently are in the old Family and Community Services Act. However, there are other parts of the act where we deemed it necessary to increase penalties. For instance, the penalties for harbouring or concealing a child have been increased from 12 months' imprisonment currently to three years, and that has been made because we think that is the right thing to do but also it brings it into line with the provisions in terms of penalties relating to the breaches of a written direction, which is, of course, at clause 166.

Clause passed.

Clause 209.

Mr TEAGUE: Again, perhaps all the more specifically, as I say it might be that the same question could be put at clause 210 as well, but clause 209 deals with impersonating a child protection officer and creates an offence for:

A person who falsely represents…that—

(a) they are a child protection officer; or

(b) they are performing a function under this Act,

There is a penalty of $10,000, so it is in that group. I hear the minister that that is a retained offence and penalty. Perhaps it might be put this way: to what extent, if any, has this occurred? If it is occurring in circumstances where a civil penalty is appropriate that is something short of very serious criminal conduct, why not apply, as it were, the more serious range of civil penalties that are applied in subsequent clauses to other conduct relating to breaches of safety and security?

The Hon. K.A. HILDYARD: As I spoke about in my previous answer, we have made a decision for the right reasons to increase penalties, for instance, in the matter where a person harbours or conceals a child or young person. We have kept the penalty the same in this particular case.

In terms of your question about how many times or the circumstances in which the impersonation offence has occurred, I would have to check on that and take that particular question on notice and, I daresay, speak to other authorities also to understand the number or the volume in relation to that particular breach of the legislation.

Mr TEAGUE: Thank you, I appreciate that. I guess to further inform the inquiry and the answer that might come back on notice, is there work for this provision to do, for example, at the margins in relation to what are functions broadly related to the protection of children but that are conducted by a person not so entitled but nonetheless broadly in the space; that is, completely separate from the more sinister or criminal conduct? Is there work for it to do in terms of separating those who might broadly provide services in connection with children but who are on notice that they are not to represent that they are in fact a child protection officer or performing a function under the act? I guess it goes back to the question and I appreciate the minister taking that on notice.

The Hon. K.A. HILDYARD: Potentially. That is certainly something I will think about and contemplate whether there is that distinction to be had in relation to the ways, I guess, and the intention of a person who may breach this particular provision.

Clause passed.

Remaining clauses (210 to 220) passed.

Schedule 1 passed.

Schedule 2.

Mr TEAGUE: Schedule 2, part 1, clause 1 is a reference to, like other provisions at schedule 2, the name change. First of all, is it something that was not addressed in 2017? Should it have been an amendment made for the name change reference in 2017 and why both now?

The Hon. K.A. HILDYARD: Yes, it was a technical amendment that was missed when the 2017 bill was introduced and passed.

Mr TEAGUE: I guess I will ask the question: now that we are at 2024, there is still work, I presume, for the reference to 2017 being retained in 2024, and, if so, what work is that?

The Hon. K.A. HILDYARD: The short answer is yes because, potentially, a child who is still in the system was taken into care either before the 2017 act or since the 2017 act, so we need to make sure that any provisions that do or could relate to them are updated to ensure that they are contemplated in those pieces of legislation.

Mr TEAGUE: I say this against the background that it is a vanishingly rare event, for better or worse: is the minister satisfied there has been no material adverse consequence of that not having been referred to at the 2017 stage?

The Hon. K.A. HILDYARD: I am advised that there is nothing of concern.

Schedule passed.

Title passed.

Bill reported without amendment.

Third Reading

The Hon. K.A. HILDYARD (Reynell—Minister for Child Protection, Minister for Women and the Prevention of Domestic, Family and Sexual Violence, Minister for Recreation, Sport and Racing) (12:32): I move:

That this bill be now read a third time.

Just briefly, can I first of all say thank you to the shadow minister for his thoughtful and considered questions. I think it is clear from the debate that we have had that he and many other people through the review process, through the feedback process, but also, much more broadly, through the contemplation of our transformation of the child protection and family support system, have thought very deeply about what this legislation will mean in terms of the foundation and the framework that it sets for that transformative change.

I do appreciate the way that the shadow minister and the opposition have engaged in that process and, more broadly, as I have said at several times during this debate and, indeed, many times in this parliament, I have so much gratitude to all of the people who have contributed to the development of this bill and who play such an important role in this system.

I particularly thank the children and young people who directly provided their feedback on this bill but who so generously share their experiences and certainly help me to shape my thinking about the way forward in this space. It is them that I always carry in my heart and mind as I go about my work as minister. I do not like to call it work; I call it more a vocation because I am deeply dedicated to driving this change. I thank them. I thank those birth and carer families who have really generously provided their feedback about this bill, but, again, about system change.

I wholeheartedly thank all of the workers in the sector, both those who work directly in the department and those in the many wonderful community organisations who are partners in this sector. They are the people who front up every single day and contemplate and carry the risk that is inherent in the child protection and family support system: the heartbreak and the really difficult decisions that need to be made to make sure we are doing the best we possibly can to help ensure the safety, the wellbeing and the care of children and young people.

I thank all of those partners right across those many community organisations who again are absolutely instrumental in what we do together to change the life trajectories of children and young people, those children and young people who most need our support. I thank them for the work that they do and also for their approach to what we do—an approach that is so much about partnership and working to transform the system together.

I really thank all of those people on the various advisory groups that we have established. We spoke just a few moments ago about the Child Protection Expert Group. I thank again Professor Leah Bromfield, now South Australia's Australian of the Year and director of the Australian Centre for Child Protection. I thank all of the members of the newly established Chief Executive Governance Group that comprises chief executives right across state government. I thank the members of the Direct Experience Group, the members of the Carer Council, the members of the Heads of Industry Forum, and again all of those children and young people who provide such wisdom to me as I go about this process of transformation.

As I always say, no one person can transform this system alone; no one person can improve the lives of children and young people alone. It is that partnership, and that willingness to work together toward this profound change that we need to make, that I am deeply appreciative of, that really makes a difference, and that has absolutely informed the development of this bill.

I have spoken about the shadow minister but I want to also thank those other colleagues who spoke to this bill. I know one of them is here in the chamber. I thank again the member for Dunstan and also the member for Elder who spoke with such passion and such wisdom and really generously shared some of their own experiences and journeys in terms of expressing why this area of work, of public policy, is so incredibly important to them. I thank them for that.

Finally, I want to thank Matt Pearce, my wonderful child protection adviser, and Ruth Sibley, my Chief of Staff, who have absolutely been on this journey to get the legislation to this place and support me in so many different ways. I could not do this work without them. I also thank Jackie Bray, the wonderful CE of the department, Elizabeth Boxall and, of course, Mark Herbst who have been incredible in terms of drafting a bill that is 220 clauses. That is a significant amount of work and I am really grateful to you all. Thank you so much and thank you to you, Mr Deputy Speaker.

Mr TEAGUE (Heysen) (12:38): I just want to make some observations about the committee process and where we got to. I recognise the work of the minister and the government. This has clearly set out the government's agenda in terms of child protection and certainly in terms of the legislation that relevantly governs and otherwise provides for child protection in the state.

This is a significant piece of legislation and I think I made the observation that in many ways it is an augmentation of the 2017 act. There is one aspect in particular that is novel, which is the subject of part 4. There is indeed—significant now—learning to be done in the application of part 4 that includes, perhaps primarily, the provision for delegation of powers and obligations to designated entities, the funding by government, the provision of information otherwise held by government to that designated entity, and then the range of applications of approach to Aboriginal and Torres Strait Islander young people who are undoubtedly so much over-represented in terms of the need to draw on the capacity of government service in this regard.

In terms of that part's mandating of family group conferences, it is welcome, and if it is going further to prove up the beneficial capacity of family group conferences across the board then I expect that we will continue to see a drive towards a more or less comprehensive application of family group conferences for all children and young people who come within the orbit of the department. So part 4 is new—in some ways it is courageous in that particular sort of sense—and it might, by making particular provision for Aboriginal and Torres Islander children and young people, show the way towards what the application of best practice looks like for all children and I think that that will be one area of focus. As the debate goes now to another place, I will be interested in following closely where to from here in terms of the functions that are the subject of part 4.

Much has been said about some of the highlight changes that have been made that are what I have described as augmentation of the 2017 act. I suggest chief among them in terms of a guiding principle is the retention of safety as a paramount principle. That is an important and core starting point for debate that informs so many other parts of what goes on, the subject of the act.

As I have suggested from second reading and through the committee stage, I expect that to remain a matter of controversy and a focus for those who are engaged in the care of vulnerable children in terms, particularly, of what leads to maximum capacity for thriving, and we have seen a welcome reference to the UN conventions, we have seen a welcome addition of the best interests of children principle being applied as key. A paramount principle remains, that of safety. Again, I indicate that that might be expected to remain a matter of debate, and I would emphasise the capacity of the conventions and the principle of the best interests of the child in terms of guiding family support, capacity for reunification, and all of those other range of responses that are in the best interests of the child.

There has been some quite significant focus on the application of risk thresholds. The introduction of a new threshold for mandatory reporting is well known. How that now is applied in practice is, I think, a matter of real consequence over the time ahead. It will be important to see that a threshold has meaning to those who are the subject of the mandatory reporting obligations and, in turn, that it assists in terms of the department's functioning.

I have highlighted my concern about the differential retention of risk of harm in various ways throughout, in terms of both the application of the chief executive's discretion and in terms of the prohibition particularly the subject of clause 84(2), and those matters have all been tested in the course of the committee process.

I think as a starting point, given that mandatory reporting has been a matter of concern for a significant amount of time in terms of the department's capacity to deal with reports, I suggest that that change—yes, important that it has real effect—might not be where the eventual rubber really hits the road. The analysis might turn to those provisions where the threshold is remaining at that lower level of harm from the threshold for the application of the chief executive's discretion to call on a family group conference to the threshold for the chief executive and others to seek an order from the court and, as I have said a few times, I think that the retention of the lower threshold the subject of clause 84(2) might all be matters that come into focus as the operation of the act is commencing.

I look forward to the debate in the other place. I look forward to continuing engagement with all those individuals, non-government organisations and research institutes that have been engaged over a long period of time, including in response to drafts of this bill, and engaged in advocacy towards improvement for our state's most vulnerable children.

This is undoubtedly the most significant work, responsibility and opportunity for government and, indeed, for us all as South Australians. If we can come to a point where one of our core sources of confidence in this state is our capacity to care for our state's most vulnerable children, and indeed to see them thriving in every possible way, then we will have done our duty as representatives and members of this place. There is debate to occur in another place, but for this moment, the conclusion of the debate in the house, I hope that the process of the debate at all stages has served a purpose. I look forward to seeing it now continue into the future.

Bill read a third time and passed.

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