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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-11-18 Daily Xml
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CHILDREN'S PROTECTION (IMPLEMENTATION OF REPORT RECOMMENDATIONS) AMENDMENT BILL

Committee Stage

In committee.

Clause 1.

The Hon. S.G. WADE: Is the minister in a position to provide any answers to questions raised in the second reading debate?

The Hon. G.E. GAGO: I again thank honourable members for their support. I want to take this opportunity to answer questions raised by the Hon. Stephen Wade. In noting the opposition's support for the bill, he has asked the following questions: does the bill provide sufficient power under new section 8B(8), the prescribed functions definition, to limit these functions; and how do the provisions of this bill for the independence of the guardian compare with independence provisions in other legislation for statutory officers; and, to the extent that they differ, why does the government prefer the provisions in this bill? The third question is: have there been any ministerial directions given to the guardian under this legislation?

The bill amends the prescribed functions definition to achieve a better balance between protection and practicality. The definition within the act is amended to exclude situations where a person is under the direct supervision and observation at all times of appropriate personnel. There is sufficient power for this to occur, as the bill amends the definition contained within the act itself rather than by regulation.

In regard to the independence of the guardian, the honourable member asked how the provisions of this bill compare with other states. Most Australian jurisdictions have established a commission for children or a children's guardian. The role and functions of these offices vary from state to state—for example, the Queensland Commission for Children and Young People—and the Guardian Act 2000 states that the commissioner must act independently and in a way that promotes and protects the rights, interests and wellbeing of children and is not under the control or direction of the minister.

In practice, the guardian already operates as a statutory officer at arm's length from executive government. In drafting this bill, the South Australian government chose to align the provisions establishing the independence of the guardian with those of the Health and Community Services Complaints Commissioner (section 11). This provision is also consistent with the discussion relating to this section, where the commissioner specifically refers to the provisions within the Health and Community Services Complaints Act. Whilst the Minister for Families and Communities has from time to time requested advice from the guardian pursuant to section 52C(1)(f) of the act, to the best of my knowledge, no other ministerial directions have been given to the guardian under this act.

The Hon. Stephen Wade also noted that, first, regulations to be established under section 8D of the act must be carefully worded and scrutinised and, secondly, that the Charter of Rights for Children and Young People will not be annexed as a schedule to the act. The act makes provisions for the making of regulations to exempt certain organisations, persons and positions from the requirement to conduct criminal history checks, where the risk to children from a particular activity or position is low; for example, the activity where a parent is present at all times or where it is not appropriate to require a person to be checked, such as parents volunteering in activities with their own children or people in general work situations. For this reason the clause provides for the making of regulations to exempt organisations, persons and positions in certain circumstances. The exemptions seek to achieve the best balance between best child protection mechanisms and practicality.

In drafting the proposed exempting criteria consideration was given to the Working with Children schemes in other states and territories. To ensure that the scheme has achieved this balance, the operation of the exemption scheme will be reviewed at the end of the phase-in period. A key philosophy of this bill is that child protection is a community responsibility and that children must be safe and protected in all settings. This is particularly important where a child or young person is in care, as they are amongst the most vulnerable.

Amending the Children's Protection Act 1993 to require that a charter of rights for children and young people in care exists will enshrine principles and objectives that will influence the practices of agencies and individuals caring for children and young people in care. This will help ensure best practice for the treatment of children and young people and ensure they are embedded in agencies, policies and procedures. The primary purpose of the charter is to communicate to children and young people in care their rights in an easy and comprehensible format.

In its discussions relating to recommendation seven, the commission of inquiry advised that it supported a legislative endorsement of the charter of rights in the same way that the parliament passed schedule 1, South Australia's carer charter and the Carers Recognition Act 2005. The proposed amendment does not include the charter as a schedule to the act but instead creates a legislative requirement that a charter exists. This is considered preferable because it allows for the charter to be drafted in easy and comprehensible language and also allows for more frequent review of the charter, thus ensuring it remains relevant and a useful resource for children and young people in care.

It should be noted that similar provisions exist in legislation in both Western Australia and Victoria. I also take this opportunity to respond to the honourable member's concern regarding the government's response to recommendation 43. Recommendation 43 calls for the establishment of a secure care therapeutic facility for high risk children. This recommendation remains under consideration by the South Australian government and no final decision has been made. The government has received comprehensive advice from the Guardian on the issue, and she is strongly opposed to the introduction of legislation and facilities for safe keeping children.

In light of this advice the government is continuing to seek advice on the issue of a secure care therapeutic facility and will consult further with interested stakeholders. The government's response to a number of other recommendations of the Mullighan inquiry will also support children and young people in care who are at risk. These recommendations include recommendation 42 (a pilot program to provide intensive therapeutic support to children and young people who are identified as at risk), recommendation 47 (legislation to create offences for failing to comply with a direction not to harbour or communicate with children who are the subject of a placement arrangement), recommendation 2 (self-protective training for children in care), and recommendation 45 (where contact officers have been appointed for SAPOL local service areas where residential care facilities are located to ensure strong communication between agencies if a young person absconds).

The Hon. S.G. WADE: I thank the minister for her answer. Can the minister advise when the next implementation report for the Mullighan commission of inquiry will be available?

The Hon. G.E. GAGO: It is due to be reported on in January. However, we are committed to having that done by the end of this session, and I am advised that it is likely to be sooner rather than later in terms of this parliamentary session.

The Hon. S.G. WADE: Do I take from the minister's remark that it was due in January and that the report that will be tabled before the close of the session is the 2010 report and not the 2009 report?

The Hon. G.E. GAGO: The reports are obviously over a 12 month period, and the period on which it will report is December 2008 to December 2009.

The Hon. S.G. WADE: If I explain my understanding of the implementation report process, it might help the minister in terms of understanding my query. In the other place the minister responsible suggested that the government had made a commitment to annual reporting. What is relevant is not the government's commitment but the statute, which requires that the government reports for each of five years following the making of the full response. The full response was made on 25 September 2008. Section 11A(c) of the Commission of Inquiry (Children in State Care and Children on APY Lands) Act 2004 provides:

For each year for five years following the making of the full response, the minister must, within three months after the end of the year, make a further response stating...

The year in that context is not a financial year: it is a calendar year. Considering that the full response was given on 25 September, one interpretation of that paragraph might have been that a report was due by the end of March 2009. I am not being critical of that; it could it interpreted in one of two ways. However, if the government is interpreting it as meaning that the first report is due at the end of March 2010, that means we have five reports left, and the last one will be in 2014. That is really what I am getting at. I do not think a report can be for a financial year; I think it needs to be for a calendar year.

The Hon. G.E. GAGO: I have been advised that the response was tabled in September. The implementation was required to be reported three months after that time, which was in December. We take the view that it is then 12 monthly after that December report. We apply that same view to both the Mullighan report and the APY report, and we report on and table those reports in good faith at the same time so that they do not fall outside of a session.

The Hon. S.G. WADE: That is an interesting interpretation. In that case, it would be due at the end of December, not the end of January: three months from 25 September would be 25 December. I thank the minister for clarifying how the government is interpreting that section. I take it that, in that context, the last report will be due in 2014.

The Hon. G.E. GAGO: I am advised that the last report is due in 2013.

The Hon. S.G. WADE: I will do my maths outside the chamber. Can the minister advise when the act will be proclaimed and when it will come into operation?

The Hon. G.E. GAGO: I have been advised that, in fact, the act can be proclaimed now. However, because we have given a commitment to give organisations one year's grace in relation to police checks, that section will not be operational until 2011. However, the guardianship and community complaints component—the COAG component—can all be operational straightaway.

The Hon. S.G. WADE: I gather from the briefings that the government will be continuing to consult on the regulations and the implementation. Can the minister indicate what process the government intends to go through in relation to consulting on the regulations and when they are likely to be promulgated?

The Hon. G.E. GAGO: I have been advised that the consultations are occurring already, that the Department of Recreation and Sport is undertaking significant consultation with sporting groups and that we will continue to consult with all relevant stakeholders. That is what the one year's grace is partially about as well, and we will continue that process throughout the next 12 months.

Clause passed.

Clauses 2 to 6 passed.

Clause 7.

The Hon. G.E. GAGO: I move:

Page 5, after line 5 [clause 7(6), inserted subsection (7)]—insert:

(ab) provide for the authorisation of persons or bodies to undertake criminal history assessments for the purposes of this section; and

(ac) make provision in relation to the release of information relating to a person's criminal history to another jurisdiction; and

This amendment enables the authorisation of persons or bodies to undertake criminal history assessments for the purposes of this section. It provides for the release of information relating to a person's criminal history from another jurisdiction.

The amendment has been introduced to accommodate South Australia's participation in the Council of Australian Governments' interjurisdictional exchange of criminal history information. In April 2007, COAG agreed to a framework to improve access to enhance interjurisdictional information to improve the quality of screenings undertaken by child-related employment screening units. In order to participate in the exchange South Australia must meet the minimum legislative requirement agreed to by all Australian jurisdictions. This amendment will ensure that South Australia has an appropriate legislative basis to meet these minimum requirements, which include provisions to authorise persons or bodies as authorised screening units and to enable the release of information relating to a person's criminal history from another jurisdiction.

The Hon. S.G. WADE: In the context of the clause as a whole, including the foreshadowed amendments, could the minister advise, first, how many people are currently required to have a criminal history report under section 8B? Secondly, how many additional people is it estimated will need to have a criminal history check following the passage of the legislation, including the foreshadowed amendments?

The CHAIRMAN: I remind the Hon. Mr Wade that this is the first amendment. Can the honourable member indicate support or otherwise for that amendment?

The Hon. S.G. WADE: I will support the amendment.

The Hon. G.E. GAGO: I have been advised that, in terms of the new arrangements, it is currently unknown. Obviously the new additions will involve non-government organisations, sporting organisations, GPs, etc., and the actual number will depend on how many of those organisations are deemed to require that. The exact figure is unknown, but obviously there would be a reasonably significant increase in the number required.

The Hon. S.G. WADE: In that context, the AMA said, in a letter to a minister in another place:

Some 160,000 South Australian employees and volunteers will be impacted, and required to undergo a police check and criminal history assessment (on the department's own estimates).

Would the minister be aware to what departmental estimate the AMA may have been referring?

The Hon. G.E. GAGO: Yes; I have been advised that the figure is based on the Western Australia figure. It is an estimation; it may or may not be an indicative figure for South Australia. As I said, it will depend on the number of people actually deemed. However, it is based on Western Australia, I believe.

The Hon. S.G. WADE: In terms of the current number of people with a criminal history report under section 8B (and I may have missed it), is the government in a position to estimate how many people are currently required?

The Hon. G.E. GAGO: Again, I am advised that the figure is unknown. I am happy to take it on notice and try to find the best figure available. The reason we do not have an exact figure is that the checks are conducted by different bodies or organisations—SAPOL, the Department for Families and Communities, and schools also conduct their own. The information sharing between those agencies is not necessarily efficient.

The Hon. S.G. WADE: I thank the minister for her answer. I appreciate that it is very difficult, particularly in relation to projected figures moving forward, because, based on the consultation on the regulation, I assume that number will vary. Presumably, if the government agrees to exemptions, there will actually be a reduction in the number. However, I suggest to the government that it may be of assistance to the Legislative Review Committee, when the regulations come before it, if an estimate were to be provided to that committee.

I would like to make some general remarks. As I have already indicated, the opposition will support amendment No. 1, but in doing so I should indicate that it is somewhat bemused. We are told that these amendments came out of a COAG process, so could the minister explain the origin of the amendments?

The Hon. G.E. GAGO: I have been advised that it was work that was done by an officers group, and their work was not finalised until after the bill had been tabled in the lower house, so it is hot off the press, so to speak.

Amendment carried.

The Hon. G.E. GAGO: I move.

Page 5, after line 10 [clause 7(6), inserted subsection (7)]—Insert:

(ca) define classes of information that are to be taken to be included in, or excluded from, a person's criminal history for the purposes of this section; and

(cb) confer discretionary powers on the Minister, the Chief Executive or another person or body; and

This enables South Australia to define types of information that are to be included or excluded from a person's criminal history for the purposes of section 8B and enables discretionary powers to be conferred on the minister or chief executive via regulation. Again, it is to bring this into line with the COAG commitments that I have already outlined.

The Hon. S.G. WADE: Paragraph (ca) is reminiscent of the recommendation from commissioner Mullighan where in recommendation 3 he said that a criminal history report should be defined as a report that includes information as to whether a person is on the Australian National Child Offender Register. Will the minister indicate whether under the act as proposed to be amended by the bill the criminal history report needs to include information as to whether the person is on the Australian National Child Offender Register or whether it is the government's intention that the regulations made under this measure will include such a requirement?

The Hon. G.E. GAGO: I have been advised that the way that CrimTrac works it does not actually indicate whether or not a person is on the register; however, it does show an offence that would put a person on the register so, in effect, it does identify those persons, but it does it by way of identifying the offence.

The Hon. S.G. WADE: I thank the minister. In relation to paragraph (cb), will the minister explain what the effects of this provision would be and why it is necessary? On a broad reading, it would seem to be a power for not only the minister but also the chief executive, another person or a body to make regulations or even to change the statute, so we are not clear as to the impacts of this provision.

The Hon. G.E. GAGO: I have been advised that, because we have a pilot and a 12 month review and it is part of a COAG process and agenda, we believe that then provides the flexibility to us to enable us to deal with it through regulation rather than the act itself. Therefore, it is then easier to amend and accommodate changes in a much more timely and less cumbersome way in future.

The Hon. S.G. WADE: Do I take it from the minister's answer that, considering that that is a subsection of the section that deals with the scope of the regulations, the discretionary powers being referred to therefore are discretionary powers only to amend the regulations?

The Hon. G.E. GAGO: I have been advised that you are right: it does allow amendment through regulation, and it also allows the minister to designate the screening units which can process people.

The Hon. S.G. WADE: Considering that members would like to deal with other matters, I wonder whether the minister might consider reporting progress. The breadth of that power does concern the opposition. We do not think it is appropriate. Obviously, the minister can go to cabinet at any time and seek a regulation, but this power seems to be very broad and the possibility of a chief executive, another person, or a body making what is subdelegated legislation is of concern.

The Hon. G.E. GAGO: At this point I will ask that we report progress, as there are some other matters that the chamber needs to deal with.

Progress reported; committee to sit again.

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