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House of Assembly - Fifty-Fifth Parliament, First Session (55-1)
2025-10-28 Daily Xml
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Bills

Education and Children's Services (Enrolment and Attendance) Amendment Bill

Second Reading

Adjourned debate on second reading (resumed on motion).

The Hon. J.A.W. GARDNER (Morialta) (17:36): It is with great pleasure that I resume my remarks on the Education and Children's Services (Enrolment and Attendance) Amendment Bill. As I described before, this is a bill that deals with that most important issue of how do we best serve the children in our community by ensuring that our systems, our structures and the law put them in the position where they are most likely to attend school?

We know that children of course have agency in their own lives, and some children present behaviours, resistance or challenges to getting them to school, and their parents have a more challenging circumstance here than other parents. However, there is a key question that courts always consider in relation to whether the parents are taking the appropriate steps to get their children to school. We would love every child to be at school every day of the week, every week of the year, but we know there are circumstances where that is not going to be the case. We cannot accept that. We must always be striving to do better.

As I described earlier, this bill represents an evolution that has been continuing for some time. I became the shadow minister for education early in 2016, as it was two years prior to the 2018 election, and I believe the member for Port Adelaide had been the minister for a little while before I was. However, in the 15 to 20 years prior to her assumption to that portfolio, my recollection is that there had been two prosecutions only in that whole time for parents who had allowed their children to be truant. That is my summary, because the description of the offence in the act is a lot more complex than that.

I recall at the time the debate happening, because there was the discussion of a new Education and Children's Services Bill, an evolution of which has now become the act, as of the 2019 legislation. In that bill a number of propositions were put forward by the member for Port Adelaide in relation to reform. I will come to the detail and the specifics later, but the point that I make first is that the resistance from the department and the Office of the Director of Public Prosecutions in particular was that they were concerned that a successful prosecution under the pre-2019 legislation was unlikely.

They were concerned that the standard of proof required to be met in order to achieve a guilty verdict was unlikely to be met and the resources required to establish that proof were also unlikely to be justified according to their KPIs because of the low level of the fine that was in question. I cannot remember whether it was $250 or $150, but for the tens of thousands of dollars it would have taken the Crown to prosecute such a case, they felt there was a low likelihood of a successful prosecution, according to the metrics that they used. Unfortunately, that was a reason that they said it was not good enough.

I do want to commend the member for Port Adelaide. I am going to come to a point of difference in a moment, but only a policy one to be clear and one that I think we reached a satisfactory landing on, but that is in the later part of the story.

In 2017, I suspect it was—and I imagine that it had been worked on for a little while earlier than that—the member for Port Adelaide as Minister for Education managed to persuade, convince overall or some other effect to get the prosecutors to take two cases to court. I will not go through the details of the cases. When we are talking about children in a vulnerable set of circumstances, or indeed a unique set of circumstances, there is always a story. It can be a very sympathetically told story. But ultimately there were three children, and two prosecutions from memory, who were not going to school who could have been going to school.

Despite the low level of penalty on question, despite the high level of resources that it took, the application of that law in those cases, as we were encouraging the government to do, as the minister saw the value in doing, as the minister instructed them to do, was multifold. First and foremost those kids, who I checked in on from time to time as the minister in the years subsequent, went to a lot more school than they would have had they not had that court action taken. It also sent a message to a large number of other families.

The Department for Education, the government of the day, the Liberal Party and the Labor Party, were all interested in whether their children were going to school. It is one thing to have a framework within which we are providing every opportunity for children to get the best outcome so long as their parents are engaged. But in a circumstance where there is enormous complexity that sometimes can be complicated. Sometimes getting the parents' attention actually requires that extra step of prosecution.

Certainly that was the case in 2017 under the old law. My recollection in that case was that they were able to identify not just the standard of proof to meet an individual case, but by having a number—10 or 12 cases I think it was—laid simultaneously, because, of course, the offence is the number of days they were missing from school and if you are able to establish the child has missed 10 times that number of days without reason, then you can get 10 counts of the case and that lifts the penalty.

It is not about applying a financial penalty to a family who might have been in a vulnerable situation in one case, who were not in the other case. It is not about the penalty. The courts apply discretion in such things not to need to apply the full penalty. It is about ensuring that attention is given to those children and that encouragement is joined by the enforcement to get those kids to school. And, indeed, other parents in the same situation can no longer think, 'They will never take us to court, it is never going to be an issue'.

From a policy point of view it was still seen as desirable by everybody to improve the legislation, because there were complexities in establishing a prosecution where potentially the threshold could have been easier. One of the factors being put forward by the opposition at the time, as we are now, was to substantially increase the level of fine and leave it to the court's discretion to determine what was appropriate. That has broadly been introduced in the subsequent 2019 legislation.

Another proposal was put forward to have expiation notices. That was in the original 2017 bill and we rejected it. We argued against it in the parliament and we rejected it from the ultimate bill. I understand that is still in consideration now and there are processes taking place. If a bill comes back in the future bringing that forward, it will be for other minds than mine to consider that aspect. It is not in this bill, the government has decided not to pursue it at this time. From my own point of view, I applaud that and I encourage anyone interested in the topic to revisit the debates of the time.

I think the whole point about a court being able to apply their discretion to come up with an appropriate penalty and, indeed, that you want to do everything you can to work with a family prior to pursuing a prosecution is potentially lost once you look at an infringement notice, a parking ticket, a speeding fine, if you like, an expiable offence. I am worried about them being applied too liberally in one sense but also as a burden in another.

So that takes us past the 2018 election. The 2019 bill as it came through resolved that issue in favour of increasing the fines allowing the courts to apply their discretion and not having the expiable offence.

I highlight one other issue that the 2019 legislation included, and that is this family conferencing system that has subsequently been used, I think the minister highlighted in his second reading speech, in 179 children's cases with 122 families. Those are the ones that are being reviewed for prosecution. Without having the stat in front of me in terms of family conferences, I understand it is in the hundreds, or at least over 100.

In those family conferences, it is an education conference. It is similar to the processes used in the Youth Court. It fundamentally involves getting a family around the table and establishing what has been going on, what are the challenges, who are the relevant officers of the education department or other government authorities that are relevant, the school and the parents, and seeking resolution in a collaborative session.

This is something that was first suggested to me when I was the new shadow minister in 2016 by a man called Trevor Elburn. Trevor Elburn is many things and he has been many things. He would be known to anyone involved in housing policy in South Australia. He has made a significant contribution to supporting people to downsize into their third stages of life. He is also a musician and a great singer.

Trevor Elburn was a truancy officer some decades ago, and he brought forward this idea about how you effectively engage with people, ensuring that there is a stick available to encourage them to the family conference, but the purpose of the family conference is to identify how the government and the school or the police, or whoever else, can best meet the needs of supporting that family for a good outcome for the students. That made its way into the legislation, which I think the minister and the department have been using to great effect.

The year 2019 came along, and I was very much looking forward to then following the lead of the member for Port Adelaide and supporting the department in prosecutions, potentially having the services of the Crown to give us assistance in securing some positive outcomes and getting some more kids back to school. Ultimately that was cut short, as were so many things, by the pandemic.

In February 2020, we changed our posture completely. We had approaches in Port Augusta, where we had piloted a new model of advertising and social media and a social awareness campaign about getting kids to school. We had all sorts of exciting collateral developed. I hope that the department has made some use of it in some of the things that the minister has done in the last couple of years.

All of these things, of course, were thrown out of the window when our posture shifted to telling everyone to keep their kids at home if they had the sniffles. It became extraordinarily difficult to determine, from a school's point of view, whether a child was truant, when our first order of business was to make sure that they were not going to make somebody sick by their attendance at school, to the point where you did not need a doctor's appointment to be absent, you needed a doctor's appointment to prove that you were well enough to attend, a test to say that you did not have COVID.

Keeping the community safe is a government's first priority in any circumstance. Children attending school is a very, very high priority, but there was a clear and immediate danger to the whole community of any outbreak. There has never been a year in recorded history when so few people have had the flu or the common cold as in 2020, but it meant that everyone had to stay home.

For the rest of the term of the Liberal government, we were unable to pursue any truancy-related policy, because from late term 1 in 2020, people may recall, we had school attendance in South Australia down to about 65 per cent. It was less in some schools—far less in some schools, higher in others—but across the whole state it was about 60 per cent, and that was high by national comparison.

I remember that, coming into term 2 of 2020, South Australia, Western Australian and the Northern Territory were the only states encouraging their kids to go back to school. The Labor minister in the Northern Territory was Selena Uibo, and the name of the Labor minister in Western Australia escapes me for a minute, but I suspect she was there before me with the member for Port Adelaide and after me with the member for Wright. The three of us were exchanging messages, competing with each other about who was going to have the higher attendance at school, while hardly anybody was at school in Victoria for 18 months.

It was a different set of circumstances, but ultimately it led to the position where we were not able to pursue that from a policy point of view. The minister has taken that up since the end of the experience of the pandemic. I commend the department for that, and I say to the minister, 'You are welcome,' for the preparation that was done.

I would highlight that as we seek to further iterate and improve the bill with certainly the in-principle support of the opposition—we are supporting the bill; there may be some questions to come when we get to the committee stage about detail—this is something that will keep evolving. We are not in a perfect state and there is no such thing, but we will keep improving this legislation in the years to come. The legal advice that ministers and future ministers will get will inform further improvements to the bill. Also, the challenges are different.

When I was the minister, I recall on any given day there were about nine per cent of kids absent and about 91 per cent attending. Of that nine per cent, the average would probably be that three per cent were sick, three per cent had a reason and three per cent did not have a reason. The three per cent who did not have a reason, or did not have a reason that would be acceptable, has grown: it grew by about 10 per cent in the years immediately after COVID. There are increases in school refusal, there are increases in anxiety and there are increases in people who are concerned about infectious diseases. That third one has directly informed one of the clauses in this bill that we are dealing with today.

So I make the point that some of this bill is further improvement in response to circumstances, some of this bill is further improvement no doubt in response to legal advice and some of this bill is related to consideration of policy questions. I am sure those policy questions will continue in the years ahead. I think as a function of the family conferences working, working out a way to use that family conference as a mechanism to identify whether or not a family needs to have a letter of concern or a potential prosecution investigated is worthwhile. I think that is clearly incorporated into the proposed legislation.

I think that in the years ahead there may be further changes needed. I am sure the Liberal Party will seek to support those from government, as we will be, and I hope that the Labor Party in opposition will take as constructive an approach to this sort of legislation in the future as we will for these remaining three months to five months while we are in opposition.

With that, I commend the bill. I acknowledge that either the member for Flinders or I, or potentially others, will likely have some questions at the committee stage. I look forward to its further consideration in due course.

The Hon. B.I. BOYER (Wright—Minister for Education, Training and Skills, Minister for Police) (17:51): I just want to make a few very short comments to thank those who have contributed to this bill, including the member for Flinders. The member for Morialta, of course, was a former education minister, as was the member for Port Adelaide. They have a lot of experience in terms of different things different governments have tried to do to tackle issues around non-attendance.

I think this is a pretty thorough piece of work. There are other things that could be considered that we have decided not to progress as part of this bill. I think I addressed those in the second reading speech around what I think are pretty decent reasons for not doing that.

I again thank all those members who have contributed in a very meaningful way and in a way that shows they are very keen as local members to do everything they can to make sure that the young people who live in their seats are at school as often as they can be. We know that is kind of a base requirement. I commend the bill to the house.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The CHAIR: I thank the member for Flinders for being here, but given the time constraint I might ask the minister to move that progress be reported.

Progress reported; committee to sit again.

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