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Legislative Council - Fifty-Second Parliament, First Session (52-1)
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CHILD EMPLOYMENT BILL

Committee Stage

In committee.

(Continued from 5 May 2011.)

Clause 1.

The Hon. G.E. GAGO: Again, I thank members for their contribution. In particular, the Hon. Rob Lucas raised a number of issues that I took on notice, which I will now provide a response to. In relation to capacity to regulate a child's working hours, a clarification is required regarding the capacity of the state parliament to regulate a child's working hours following the referral of certain industrial relations powers to the commonwealth.

The short answer is yes; we can regulate the times at which or the periods during which a child may be employed. This was clarified on Thursday 5 May 2011; however, it appears that the Hon. Lucas was still not clear on this. The Fair Work Act 2009 provides that state child employment laws may not regulate issues covered by the National Employment Standards, modern awards or enterprise agreements. However, it clearly permits state and territory child employment laws to regulate the times at which or the periods during which a child may be employed. I refer the honourable member to the commonwealth Fair Work Act 2009 and regulations, in particular, section 29(3) of the act and regulation 1.15 of the regulations.

In relation to prosecutions under section 78 of the Education Act, the honourable member queried the number of prosecutions that occurred under section 78 of the Education Act. I have advice from the department of education that there have been no employers prosecuted under section 78 of the Education Act. Where a child has been found to be employed during the hours at which they are required to attend school, the department of education will in the first instance approach the employer. These matters are generally resolved through discussion and have not required prosecution to date.

The fact that there have been no prosecutions under section 78 of the Education Act does not mean there have been no cases of children being required to undertake work that adversely affects their schooling or their health, safety and development in the workplace. It is important not to be distracted by the fact that the Education Act focuses on educational outcomes and regulates young peoples' attendance at school.

The Child Employment Bill focuses on industrial conditions and regulates young peoples' participation in the workplace. An employer will come into conflict with the Education Act if a child of compulsory school age fails to attend school and the reasons for this are that they were employed during this time or their employment rendered them unfit for attending school. In those situations, an employer will be approached and, as I have pointed out, the conflict has generally been resolved through discussions and has to date not resulted in any prosecutions. Unless an employer was intentional or reckless in employing a child of compulsory school age during school hours then no offence will have been committed.

In relation to the Education Act in general, the Hon. Rob Lucas in his address to the Legislative Council on 5 May focused primarily on the Education Act. However, in his discussion he raised a number of concerns with the Education Act that need to be corrected. He stated that the Education Act talks about the impact of a job on a child's education or schooling and does not relate solely to a child's attendance at school. This, I have been advised, is incorrect. The Education Act is not industrial legislation. The only provision of the Education Act that deals with the employment of a child is section 78, which deals specifically with a child's compulsory attendance at school.

I refer members to section 78 of the Education Act. I believe that the section is quite clear in its construction. It creates an offence for an employer to employ a child of compulsory school age during the hours that they are required to attend school or an approved learning program, or if an employer employs a child in work that is likely to render them unfit to attend school or an approved learning program, or obtain the benefits of that attendance.

A school is defined as a government school or a registered non-government school. An approved learning program is broader and includes TAFE courses, approved diploma courses, apprenticeships and traineeships, recognising the diverse range of options that may satisfy a child's compulsory attendance at school.

The honourable member stated that the concept of 'approved learning program' is undefined. Again, that is not correct. I direct members to section 75D of the Education Act, which spells out what an approved learning program is. In light of this, the honourable member asked whether employing a child during the hours of four to six would be an offence against section 78 of the Education Act. The answer is no, I have been advised, unless those are the hours at which a child of compulsory school age is required to attend school or an approved learning program. This to me seems fairly unproblematic.

I also point out that it is not an offence under the bill before members to employ a child from 4pm to 6pm. The bill simply requires that the work does not harm the child's health, safety or development nor interfere adversely with their schooling. Clearly, it will be only in very serious cases where an employer has breached these requirements.

The honourable member raised the issue of modelling, acting and other situations where a compulsory school-age child is permitted to work during the hours at which they are required to attend school. Exemptions may be given from a child's compulsory attendance at school. These are provided either by the principal of a school for short-term periods or by the minister responsible for education, via section 81A of the Education Act. Where these exemptions are provided, a child of compulsory school age may work during the hours at which they are required to attend school.

I point out to members that clause 7(2) of the Child Employment Bill specifically recognises these exemptions. I hope this clarifies the Education Act and, in particular, the only provision of the act that has anything to say about employment. Clearly, the primary focus of the Education Act is a child's compulsory attendance at school. That is the reason the Education Act deals specifically with children of compulsory school age. I trust this satisfies the honourable member's questions about the Education Act.

The bill before the council is industrial legislation and as such is directed specifically at providing protections for children in the workplace. Its objectives are significantly different from but complementary to those of the Education Act. The bill is intended to protect all South Australian children while they work. For that reason, the bill applies to all children under the age of 18 and not only to children of compulsory school age. The bill does not reference a child's compulsory attendance at school, as this is a matter for the Education Act and the minister responsible for that legislation. Insofar as the bill relates to a child's education, it asks employers, so far as reasonably practical, not to require children to undertake work that adversely affects their schooling.

The honourable member asked for the definition of schooling as it relates to this bill. Schooling is not defined in the bill and therefore the natural meaning of the word will apply. Schooling is defined in the Macquarie Dictionary as 'the process of being taught in a school' or 'education received in a school'. A school is defined as 'a place of establishment where instruction is given, especially one for children'.

As a general rule, the legal interpretation of schooling would follow the natural definition, and it is likely that what is considered schooling will include the normal public or private schools and also other institutions where school equivalent courses are undertaken, such as TAFE. This does not appear to be problematic to me. It is appropriate that the term 'school' includes the traditional public and private schools, as well as the other alternative forms of school that are considered as approved learning programs.

As I have said, the bill does not directly prevent an employer employing any child; all it does is ask an employer to turn their mind to the fact that the person they are employing is under the age of 18 and to take reasonable steps to ensure that the work they require a child to undertake does not adversely their schooling. On the question of homeschooling, it is the case that some children are homeschooled.

This will generally not come into the definition of an approved learning program contained in section 75D. Therefore, in these instances, a child of compulsory school age may receive an exemption under section 81A of the Education Act to allow them to be homeschooled. This would exempt them from the compulsory requirement to attend school. Exemptions will only be granted where the Minister for Education is satisfied that it is appropriate.

If a child of compulsory school age has been expelled from school and is subsequently re-enrolled in an approved learning program, then the employer must not employ a child during the hours in which they are required to attend the approved learning program or employ them to work that renders them unfit to attend the approved learning program.

An employer is not required to know everything about a child's education. The bill asks them to take reasonable steps to ensure the work a child is required to undertake does not adversely affect a child's schooling. Further to this, clause 7(4) of the bill provides a defence for an employer where they can show the offence was not committed intentionally or was not a result of their failure to take reasonable care. Clearly, prosecutions will only occur in the most serious cases. For a prosecution to occur, the employer must have intentionally required a child to undertake work that adversely affects their schooling or must have failed to take reasonable care.

The bill does not restrict an employer from employing a 17-year-old child during normal school hours if they tell them that they are not enrolled at school. However, if a 17 year old tells their employer that they require a different shift as they have, for instance, an important year 12 exam, then the bill requires employers to take notice. This is entirely appropriate and this situation would not be covered by the Education Act which, as I have pointed out, deals specifically with the child's compulsory attendance at school.

All the bill asks an employer to do is to turn their mind to the fact that they are employing a person who is under the age of 18 and take reasonable steps not to require them to undertake work that adversely affects their schooling. Reasonable steps may be as simple as talking to a child about their schooling, or listening, if a child requests different shifts to accommodate their, say, for instance, important final years of school.

Most employers who employ young children already do this and the bill will not create any new or onerous requirements on them. The bill is aimed at those employers who do not do this and ensures that, in those circumstances, young people will not be exploited at work. Examples of children being exploited are not covered by the current legislative framework. The Hon. Rob Lucas stated on 5 May that I had failed to provide examples of children who had been exploited at work in circumstances that would not be fixed by the current legislative framework. I believe that I have already highlighted some of these issues; however, I will provide members with some more detail.

Youth support agencies have highlighted instances of children as young as 13 being asked to work until 1am in fast-food restaurants, including when they have school the next day. Clearly, this is an issue of concern both for the impact on the child's schooling and the child's health, safety and development. There have been instances of children who are required to work late, sometimes well after midnight, being left alone on the street after their shift with no suitable transport home. This situation is clearly unacceptable, placing vulnerable children in potentially dangerous situations.

There have been some cases of children telling their employers of study commitments, including during their important final years of school, only to be told that they still have to work or risk losing more shifts in the future. There have been numerous instances where children were not given adequate information explaining to them their rights as young people at work. This lack of information was a consistent message from young people during SafeWork SA's consultation with them. These situations would not necessarily be covered by the existing legislative framework because the current legislative framework does not deal specifically with the particular vulnerabilities of children in the workplace.

The bill is aimed specifically at protecting children in the workplace. It asks employers to simply turn their minds to the special vulnerability of young people, many of whom are taking jobs for the first time. The bill will be complemented by regulations and codes of practice to be developed out of consultation with key business, employer and employee associations. It will ensure that children, who are among the most vulnerable members of our community, are provided with the protection they need to enjoy positive working lives.

The Hon. R.I. LUCAS: We will be able to explore a number of those issues later in the specific provisions. I will leave the bulk of the issues relating to the Education Act until we get to the specific provisions which talk directly about the Education Act, and I will leave the minister's responses relating to the entertainment industry until clause 8.

I have a couple of general comments and then some follow-up questions to the minister's response. The first one is that I am pleased that we now have on the record the fact that the existing provisions under the Education Act, when one looks at them, are fairly onerous. What the minister has said is that, with penalties of $5,000, there has not been a single prosecution of an employer under those onerous provisions of the Education Act.

One of the questions that has been asked of me is: define for me the extent of the problem? What is the problem that we are trying to fix with the legislation? We have these onerous provisions which state that you can be fined up to $5,000 under the Education Act if you do anything which, firstly, requires a child of compulsory school age, 'during the hours at which the child is required to attend school...' etc. Then part (b) provides:

in any labour or occupation that renders, or is likely to render, the child unfit to attend school or participate in an approved learning program...

So, if you do anything as an employer which is going to render a child unfit to attend school or participate in a way so that they can obtain a benefit then that is an offence punishable by a $5,000 fine.

The answer that the minister has given us, and that the education department has provided, is, as I suspected, that there has not been a single prosecution or a single offence under those particular provisions. We are not just talking about this year, we are talking about, I assume, since the act has been in place, and certainly for many years there has never been a prosecution under the provisions.

How has it been resolved? As I suggested in the second reading the opening to the committee stage, generally with these sorts of things if there has been a problem with a fast food outlet the principal of the school, the school counsellor, or whoever it is, sits down with the child and the family and one or both of them speaks to the employer and says, 'Hey, Johnny (or Julie) is falling asleep at school because I understand that they had a shift up until midnight last night', or whatever it happens to be, 'That really isn't what ought to be going on', and the education department has advised the minister that they have all been resolved through sensible discussion and consultation, and credit to the schools, the employers, the parents and the families in relation to that.

So, what we have is, no prosecutions of employers and fine of $5,000, yet we are now talking about (later on) jamming those fines up to $20,000 in relation to this. What we find is that across the board these issues have been resolved through common sense and talking about it, rather than with the heavy hand of belting them over the head with a new legislative change.

That supports the view of a number of business organisations that have lobbied all of us and said, 'What is the problem? Why are we actually doing this when you have occ health and safety laws, when you have the Fair Work Act, when you have the Education Act? What is it that this act is going to do?' I suspect the view is that we are going to have some child employment bill. Most of the employer associations are of that view, so their plan B is to say, 'Well, look, let's just make sure that we have a child employment bill which doesn't, in and of itself, create problems which don't exist at the moment.'

The other general point I want to make is that I also asked: what are the abuses that have occurred? We asked about the prosecutions and the offences. When the minister replied on 5 May, she said that the Young Workers Legal Service, etc., have listed a number of examples of problems:

These include the exposure of children to bullying and harassment at work in circumstances where children lack the ability or confidence to speak up.

My question to the minister in relation to that is: is it not correct that the current occupational, health and safety laws, our existing ones—and we are about to move to the national harmonised models—apply to all employees, young or old, child or adult, and that it is already an offence to bully or harass at work, whether you are a child or an adult?

The Hon. G.E. GAGO: I have been advised that the legislation before us provides a much broader framework than just protections around bullying and harassment. That is the first point. I have also been advised that the Occupational Health, Safety and Welfare Act 1986 creates duties for employers and employees in relation to health, safety and welfare at work, and provides protections that apply to all employees, as the honourable member points out, but it does not cover all the issues relating to the employment of children.

Children are amongst our most vulnerable employees, as I have already stated, and as such require additional protections at work. Isolated examples of poor treatment of young workers include children being directed to work with asbestos without proper protection, the verbal assault and sexual harassment of a young worker at a bakery, the assault of a young worker on a late-night shift on a school night, and a young restaurant employee who waited alone in the dark for a taxi for up to 30 minutes after the restaurant closed.

Consultations conducted by SafeWork SA with young people confirm the need for this legislation, with young people themselves saying that children require special protection due to their lack of knowledge and experience in employment environments. All other states and territories, except Tasmania, have enacted specific laws to protect the health, safety and welfare of children at work. The laws vary, but all provide a greater level of protection than is currently in place in South Australia.

This legislation enables South Australia to fill a gap in its labour laws to the extent to which it deals with the times or periods during which a child may be employed. Essentially, this means that while the Fair Work Act anticipates that states and territories will develop their own child employment legislation, it also ensures that those regulations will not cover matters provided for in the national employment standards, modern awards, or enterprise agreements.

The Fair Work Act effectively prohibits state or territory child employment laws from regulating issues such as rates of pay, leave, public holidays and superannuation. However, the Fair Work Act and regulations ensure that state and territory child employment laws may apply to the times at which or the periods during which a child may be employed. This recognises the vulnerability of children in the workplace and the importance of ensuring that children are not required to work at times which would be harmful to their health, safety and development, which would adversely affect their schooling.

Codes of practice will only be developed out of consultation with key stakeholders. Clause 19 also contains provisions allowing regulations to contain provisions that regulate children's working hours. The regulations will only be made where stakeholders identify a need in full consultation with IRAC and other interested parties.

The Hon. R.I. LUCAS: I am interested in all of that, but I have just asked a simple question: is it not correct that if a child is bullied or harassed at work they are already covered by the existing occupational, health and safety legislation?

The Hon. G.E. GAGO: I understand by the honourable member's question that it is suggesting that the occupational health and safety laws around bullying and harassment protections for all employees is in some way duplicated by the Child Employment Bill or that in some way the Child Employment Bill might not be needed because there are general protections provided elsewhere for children.

The Hon. R.I. LUCAS: I am just asking: is bullying and harassment covered for children under occupational health and safety laws?

The Hon. G.E. GAGO: The advice I have received is that, yes, there is a general duty of care.

The Hon. R.I. LUCAS: Indeed, that is the advice I have received. Looking at the occupational health and safety laws makes it quite clear that it does not matter whether you are a child or an adult, bullying and harassment is a significant offence under the occupational health and safety laws. Whilst I do not have them with me, I think the penalties are more significant than the penalties we are looking at here. They are significant penalties, in particular in relation to bullying and harassment.

When I asked the question—why do we need the bill?—the second reason the minister gave on 5 May was that children are being pressured to work at times that interfere with their important school work. Children are being made to work late hours, etc. Tonight, the minister has added to that by saying there was a 13 year old who was required to work a late shift and there were some children being asked to work until 1am. My question to the minister is: is it not correct that those examples are clearly offences under the Education Act in relation to 78(1)(b)? That is, an employer has employed someone that:

renders, or is likely to render, the child unfit to attend school or participate in an approved learning program...to obtain the proper benefit from such attendance or participation.

Is it not correct that those examples are already covered by the Education Act?

The Hon. G.E. GAGO: I have been advised that the answer is no, not necessarily. For instance, an example might be of a child who finishes their shift at, say, a restaurant and it could be dark and they could be left out on the street to find transport for 30 to 40 minutes. It might be between 8 o'clock and 9 o'clock at night. That might not necessarily be a breach of the Education Act, but it could constitute a breach of the Child Employment Bill. It is one example.

The Hon. R.I. LUCAS: I will be happy to pursue that when we get to that particular clause. I think the minister's non-response to my question—and I will not pursue it—is quite clear that the example she gave earlier of a 13 year old who was being made to work until midnight or whatever it was and the under 16s who have been required until 1am clearly are covered by the Education Act. We have had this debate on the Education Act previously. They are clearly covered by those sorts of examples.

The third sort of example the minister gave tonight was young people being assaulted in the workplace. An assault is a criminal offence covered by the criminal law. Clearly, an assault is an assault: it is as simple as that. The Child Employment Bill is not going to cover those sorts of circumstances.

I will pursue these as we get to the individual clauses but, in rounding it up, having asked the government to justify why, we have been given three broad examples. One was children being exposed to bullying and harassment, and this bill will do nothing for them because the occupational, health and safety laws already have existing penalties and provisions more serious than the child employment laws.

The second set of examples related to young children being required to work at fast food outlets late at night or in the early hours of the morning. That is already clearly covered under the Education Act. If your child is falling asleep, having worked until one in the morning, it is already the case that employers have not been prosecuted for that. As the minister outlined, the principal or the family, or both, go to the employer and work it out amicably without the need for prosecution, and there has not been a prosecution.

The third set of examples the minister gave were young people being assaulted in the workplace. None of us would support that, but the Child Employment Bill will do nothing about that. Rightly, that is a criminal offence. If you are assaulted in the workplace, sexually or physically, the existing law covers those sorts of circumstances. I will leave the remaining aspects of the answers to the questions to the specific provisions. From my viewpoint, I am happy to move to my first amendment, which is to clause 3.

Clause passed.

Clause 2.

The Hon. R.I. LUCAS: If the bill is passed through the parliament, what advice can the government give the Legislative Council as to the intention of the government in terms of proclamation dates?

The Hon. G.E. GAGO: It would follow the usual process, that is, it would need to be passed through the lower house and be proclaimed after that, if successful.

Clause passed.

Clause 3.

The Hon. R.I. LUCAS: I move:

Page 2, line 10 [clause 3(a)]—Delete ', safety or development' and substitute 'or safety'

There are some consequential impacts of this amendment later on, but this should be the test case. This is a simple premise that is being put; that is, it is clear when we are talking about health and safety of any employee, including children, that broadly what we are talking about is our occupational, health and safety legislation. As I said, we are moving to a national model of harmonised occupational, health and safety legislation. So, those sorts of concepts are relatively well argued and relatively well understood.

Here, the object of the act says that children are not required to undertake work that may be harmful to their health, safety or development. The introduction of the word 'development' is important. That raises a whole new concept and is followed on in clause 7 where an employer must in respect of each child employed by the employer ensure so far as is reasonably practicable that the child is not required to undertake work that may be harmful to the child's health, safety or development, and the maximum penalty for that offence is $20,000.

Again, the concept of an employer doing something that impacts on a child's health or safety is well understood and well argued, and there are precedents established in terms of what is the health and safety of any worker, child or adult. What we are now talking about is development. It is clear from the advice the minister gave in response to my questions that development does not just include physical or mental development. We are talking about social or moral development or indeed any other form of development that can be contemplated. So, we are talking about development clearly in its broadest sense.

In the early versions of the bill I am told it included moral and social development. There was some opposition to that, to say, 'How can we as employers be held responsible, with the potential penalty of $20,000, for the moral development of people within our workforce?' As I indicated in the second reading, I think we probably all accept that family, schools, friendship groups, television and a whole variety of other influences impact on a child's moral development. How can one of those be held legally responsible, potentially punishable by a penalty of up to $20,000 if it can be shown that the workplace has in some way been harmful to a child's development?

It would appear to be a significant new step in terms of employment law, certainly in relation to child employment when, for many children, it will be part-time employment and particularly when it potentially impacts on a child's development, which might be something that is seen to be harmful. How can the blame or responsibility be sheeted home to maybe three or four hours part-time work a week with an employer, as opposed to the many other influences that impact on a young person's moral development in relation to the interpretation of these provisions?

There is not much more I need to say—it is a pretty clear cut argument. I understand a number of employer groups have lobbied non-government members in relation to the series of amendments we are moving in this chamber during the committee stages. This is one of the amendments the employer groups I have listed previously in the second reading have indicated they would like to see supported and the bill amended in this way.

The Hon. G.E. GAGO: The government opposes this amendment. The inclusion of the term 'development' recognises the specific developmental risk to children in the workforce and requires employers to take reasonable steps to consider the effect of employment on the growth of our young people into responsible adult citizens, with employment providing a positive experience of the combined value of education and work.

In 2005, the Children at Work report by the New South Wales Commission for Children and Young People studied nearly 11,000 children from years 7 to 10 in 22 schools across New South Wales. The study looked at the full range of work children do, excluding schoolwork and routine household tasks, regardless of whether the work was paid, who it was done for or how regular it was. It was one of the most comprehensive examinations of child employment ever conducted in Australia, and brought together a wealth of research data on child employment.

This study found that a reasonable amount of appropriate work can be positive for children, with some evidence even suggesting that engaging in a reasonable amount of work can improve children's positive view of work and their performance in school. However, the study also found evidence that working more than 15 to 20 hours per week is positively associated with an increased likelihood of a number of negative indicators, such as smoking, substance use, delinquent behaviour, psychological distress and poor educational performance.

The study generally concludes that a reasonable amount of work can be positive for children, but that excessive or inappropriate work can expose children to developmental risk, and I recommend that members consider this report in their deliberations.

The Hon. D.G.E. HOOD: I hope by now that our party is gaining some sort of reputation for being resistant to imposing measures on employers that can make life difficult for them. I think when you look at the bill as it stands, that is the unamended bill, it is desirable at face value to maintain the word 'development' because, after all, who does not want children to develop in a positive way.

The problem is, of course, that including the word 'development' in this bill will allow some mischievous people—and I accept that there will probably be very few of them, but it is possible—through lawyers and whatnot to create problems for businesses in some malicious way. If they cannot get them in one way, for example, if they have been laid off for some reason, they might look at these sorts of provisions as a way to potentially take some sort of retribution on an employer, because they may be deemed to have not supported their development.

I will give an example and it is along the lines of what the minister just said. If a young person was working in a particular employment and they had worked more than 20 hours a week, then a clever lawyer could get hold of a study that showed that working more than 20 hours a week at a particular venue was in some way detrimental to their development and hence they might claim they have a case against that particular employer. So, I think the word 'development' can be exploited. I think, as the Hon. Mr Lucas said, it is a new concept to this type of law and we would be nervous about including that term in this bill. For that reason we will be supporting the amendment to remove it.

The Hon. A. BRESSINGTON: I will also be supporting this amendment of the Hon. Robert Lucas. Coming from a slightly different perspective, it has been my understanding that we have been encouraging kids to go out and gain employment while they are still in high school, to teach them a little bit of responsibility, and give them some sort of financial independence, but it has always been expected that it would be in conjunction with parental input and parental oversight, and I still see it as the role of parents to be responsible for the development of their children.

I believe that if a parent is not happy with a child working any more than 15 hours a week, that is relayed to the child and therefore relayed to the employer. Some of this stuff has got to come from home, and, being a past employer of mischievous people, I concur 100 per cent with the Hon. Dennis Hood that the term 'development',—

The Hon. T.J. Stephens: Naughty people?

The Hon. A. BRESSINGTON: Naughty people, yes—does open a door that is going to be quite onerous on employers to make sure they do not step over that mark, across that line. Believe me, they have enough to be dealing with in the workplace at the moment. I see this also as the government taking over, yet again, a parental responsibility. So, I will be supporting the amendment of the Hon. Rob Lucas.

The Hon. T.A. FRANKS: The Greens will be opposing the amendment of the Hon. Rob Lucas. We have no problems with the use of the term 'development'. We recognise that it comes from the United Nations language around child labour. It has a long history of implementation in many, many jurisdictions. We think it also value-adds.

We are not just talking about health and safety here. We are talking about, for example, in the education system, a child not being required to work late or early on a day when they have an exam or if they have important finals. We are talking potentially as well about extra protections being accorded to employees. For example, were they to be employed at General Pants in past weeks, they would have been expected to wear T-shirts and badges that say 'I love sex'. I do not think any employee should be required to wear that sort of T-shirt or badge, but certainly no employee, or particularly a young woman, under 18.

The Hon. J.A. DARLEY: I will be supporting the amendment.

Amendment carried; clause as amended passed.

Clause 4.

The Hon. R.I. LUCAS: I move:

Page 3, line 9 [clause 4, definition of 'child']—Delete '18' and substitute '16'

I addressed this issue during the second reading, so I will not repeat all of that argument at length in the committee stage.

Most of us have been used to these provisions in the Education Act as being under the age of compulsion, which up until a few years ago was up until the age of 15, which is the age of compulsion for school. The parliament passed the age of compulsion and increased it to 16, and that has created some issues in schools, in terms of students staying on who did not want to stay on, but I will put that to the side.

We have been used to the notion of compulsion in relation to schooling and education, and those sorts of provisions we talked about earlier in the Education Act, up until the age of 16. What this is talking about is, in essence, all 17 year olds who are potentially covered by this legislation and a whole range of other provisions, which we will come to later. I am not going to repeat all of them now, but I just remind you of some of them, and I recounted some of the examples in relation to apprentices in a workplace.

There are many examples of young people who want to do a trade; who leave school at the first opportunity, which is now 16, to start their apprenticeship. There are many examples of young apprentices—as Business SA, construction contractors, master builders and others have highlighted—particularly with small subbies, who for parts of the working day may well be left on a particular worksite, if it is a residential building site, with another apprentice. There is nothing illegal or wrong, in relation to employment practice, with having two apprentices for periods of time on a worksite at a particular point in a working day.

The Hon. Mr Hood asked the minister or the minister's adviser for some examples of regulations or codes, and the angle grinder example came up. It may well be that what this bill is going to be about is preventing children from using angle grinders. I think there will be many farmers and farmers' sons and daughters who would even scoff at the suggestion that they should not be able to use equipment like that, but I put that to the side.

That is the case of a child under the age of 16 but, if we leave this provision at 18, what the minister or the minister's advisers told the Hon. Mr Hood is that where this is heading is that for 17 year olds, who may well be apprentices undertaking apprenticeships, the regulations and the codes of practice are going to come down and say, 'You can't use an angle grinder. You can't use this.' It is going to mean that for some apprentices, who quite safely and as part of their productive life at the moment are using an angle grinder, or whatever else it happens to be—properly trained as a 17-year-old young adult, as I would see them, in the workplace. What we are being told is that potentially, under the regulations and codes of practice, that is where it is heading.

I just foreshadow that one of the key amendments in all of this I think is the provision later in the bill where we are going to ask IRAC, as a safety net, to have a look at all the codes of practice and the regulations before they go ahead. I think that is just an enormous safety net that is required under this legislation if it goes ahead—but that is a later amendment. I just foreshadow that one example; I am not going to go through all the other examples as well.

I think those of us in the real world have seen many 17 year olds working in workplaces, and potentially these codes of practice are going to ban them from using an angle grinder or ban them from using this or that, or whatever it happens to be, because someone has a view that a 17 year old is not mature enough or adult enough to use an angle grinder or whatever it happens to be.

We accept that all employees, 17 year olds included, have to be properly trained in the use of any equipment. That comes under our occupational health and safety laws and all those sorts of things anyway. To have a set of circumstances, which has obviously been recounted to the Hon. Mr Hood (it was not given to me so I am relying on the speech of the Hon. Mr Hood in relation to this example) is the perfect example of why I think this particular provision is counterproductive. I think the protection should be there for 16 year olds and under, in relation to it.

We can get into an argument and ask: when is a child a child? In some statutes it is 16 and in some it is 18 or whatever it happens to be. Those who want to support 18 can come up with all sorts of arguments for 18; those who support 16 can come up with arguments in relation to 16. In relation to this, we have not been provided with evidence of the abuses and problems in relation to 17 year olds using angle grinders (or whatever it is) in worksites and workplaces to justify this sort of significant change, and I urge members to at least consider this amendment.

The Hon. G.E. GAGO: The government opposes this amendment. As we know, most children stay in school beyond the compulsory school or education age to complete the very important final year of SACE. All children, as they develop, grow and train for a productive future and are entitled to the protection provided by this bill, which protects their health, safety and development and enables them to balance work with education and training whilst they are committed to education.

It is aimed at protecting those people in particular. The application of this legislation up to the 18th birthday of a child ensures that children benefit from the protections of this legislation during those years. That is very important for 16 and 17 year olds who are still participating in full-time school or other educational training in that they are free to do that and that their education is protected and not adversely affected by their work.

As I said before, we have examples of young workers or young worker's advocates, of 16 and 17 year olds being pressured to take shifts at times when they would have preferred to be studying but they are told, 'If you don't take this shift then you're not going to get any future shifts or they will be limited.' I remind honourable members that, in fact, this bill does not apply to apprentices, so the example that the honourable member gave about apprentices not being able to use angle grinders, I have been advised, is incorrect.

In fact, the ability of children who are working or in employment to use any type of equipment in particular would be assessed in terms of adverse effects on the child rather than any particular piece of equipment, for instance. So this bill does not outlaw the use of angle grinders in particular or any other piece of equipment or tool or utensil. It would only prohibit those that have an adverse impact on the person. I have also been advised that most other states provide protections for 18 year olds and under.

I just remind members that the bill does not stop children working or using equipment; they just need to be protected while they are doing that. Employers need to take account of the age of the worker and ensure that they have considered that before requiring them to undertake particular tasks or use particular tools or equipment.

The Hon. A. BRESSINGTON: I have to say that I am not inclined to support this amendment. The minister has said that the examples given by the Hon. Rob Lucas do not apply. My concern is for young kids working in fast food outlets and doing the nightshift. It is okay for a 17 year old to be put on duty as a supervisor supervising three or four younger people, but I go back to the example of the fast food outlet out north where there was gang violence. If there was a 17 year old on duty as a supervisor that particular night, when five or six youths came in drunk and started smashing up security guards and whatever, that would not be a safe environment for kids to work in. If we drop the age to 16, we could have 16 year olds in senior positions in these workplaces.

Let's face it: fast food outlets have to be the bottom of the rung in employment. It is the starting point for most kids, but I consider it the bottom rung of employment with the least supervision for those late night shifts. I have seen it, and I have seen the kids who work in those places. Given the minister's response to the comments made by the Hon. Rob Lucas, and what I have in my mind, I am now inclined to oppose this amendment.

The Hon. T.A. FRANKS: The Greens oppose this amendment. We think this is such a diminution that it serves to undermine the bill rather than make a point about angle grinders and apprentices, which we do not believe applies here in any way. We also note that this amendment would have the follow-on effect on clause 7, where an employer must not require or permit a child to be working unless appropriately supervised by an adult. In fact, that would end up with the situation that the Hon. Ann Bressington has just described, where you might have 16 year olds supervising 16 year olds—clearly an untenable and inappropriate proposition. Those are the main reasons we oppose this amendment.

The Hon. D.G.E. HOOD: Family First supports the amendment.

The Hon. J.A. DARLEY: I support the amendment.

The Hon. R.I. LUCAS: I was relying on my memory in relation to the point made by the Hon. Mr Hood based on the advice in relation to the angle grinder, and I may not have accurately reflected what he was told. From what the minister is saying apprentices are not covered, but a 17 year old does not have to be an apprentice in a workplace. Obviously, a 17 year old can be a 17-year-old employee and not an apprentice.

The Hon. D.G.E. Hood: I was talking about labourers.

The Hon. R.I. LUCAS: The Hon. Mr Hood, by way of interjection, has just clarified it. I have misunderstood and misrepresented what the Hon. Mr Hood had been told; that is, it was not an apprentice 17 year old, it was a labourer or an employee who was 17. The advice he had received from government advisers was that what might potentially occur in those sorts of circumstances is that an angle grinder—because that was clearly referred to in his contribution—may be the sort of thing that a code of practice may seek to ban or outlaw. So, my apologies for misleading the minister, the Hon. Ms Franks and others in relation to the issue of apprentices. We are talking about 17-year-old employees within the workplace.

The only other point I would make in relation to the supervision issue is that I am not sure that this issue of the 16 year old—and I know the Hon. Ms Bressington has other reasons for opposing the amendment, so I am not seeking to change her view, because I know I could not do that anyway or, indeed, the Hon. Ms Franks—supervising a 16 year old is correct, if this amendment was to go through. We have a set of circumstances under the legislation which—the Hon. Ms Franks, what was the provision you referred to?

The Hon. T.A. FRANKS: When you get to clause 7, your further amendment actually deletes 'adult' and substitutes 'person who is not a child'.

The Hon. R.I. LUCAS: Under clause 7(3), 'An employer must not require or permit a child to work unless appropriately supervised by an adult.' Again, the circumstances that were outlined in business associations' lobbying of myself and the Liberal party was that there are many examples in workplaces where 17-year-old apprentices are supervising other 17-year-old apprentices on a worksite. You are on a housing site for a builder, there are just the two or three of you there, and the more senior one may well leave the site for half a day and leave you to do the job that you are required to do. There were a number of examples given to me where 17 year olds are supervising 17 year olds on those particular worksites.

Now, if the provision stays there, those sorts of circumstances, I guess, will have to be looked at by the employers in those circumstances. Whilst I understand that, I do not understand the issue in relation to 16 year old supervision. I know from friends of our children that the number of circumstances where 17 year olds are not actually even called 'supervisors', but they are the last remaining employees left at the video shop. We are not talking about midnight, we are talking about the video shops that are open until 9 o'clock (or whatever it is), and there have been many examples where the last remaining employee is a 17 year old. I know it has occurred not only with friends of my children but with some of my own children as well, where, as a parent, you go to collect them at 9 o'clock at night and they are the ones locking up.

It is not just the fast-food outlets but the video shops and a variety of other outlets which are providing a service after hours. Many of our children and their friends have been ever grateful for the employment, the training and the money that they have received in terms of the work that was there. So, Mr Acting Chairman, as I said, I would never seek to try to change the Hon. Ms Bressington's opinion once it is made up, but I just thought at least I would dispute that aspect of her reasoning.

The committee divided on the amendment:

AYES (10)
Darley, J.A. Dawkins, J.S.L. Hood, D.G.E.
Lee, J.S. Lensink, J.M.A. Lucas, R.I. (teller)
Ridgway, D.W. Stephens, T.J. Vincent, K.L.
Wade, S.G.
NOES (8)
Bressington, A. Franks, T.A. Gago, G.E. (teller)
Holloway, P. Hunter, I.K. Parnell, M.
Wortley, R.P. Zollo, C.
PAIRS (2)
Brokenshire, R.L. Gazzola, J.M.

Majority of 2 for the ayes.

Amendment thus carried.

The Hon. R.I. LUCAS: I move:

Page 3, lines 18 to 20 [clause 4, definition of guardian]—Delete the definition of guardian and substitute:

guardian, of a child, means—

(a) a parent of the child who has legal responsibility for the day-to-day care and welfare of the child; or

(b) a person who is the legal guardian, or has legal custody, of the child; or

(c) a person who stands in loco parentis to the child and has done so for a significant length of time;

Members will be delighted to know that the minister has indicated that the government is supporting this amendment, so I will speak very briefly and indicate that this is a relatively specific amendment. It seeks to cater for the circumstances where a non-custodial parent under the government's drafting potentially could be held responsible for some of the provisions of the legislation. Clearly, if you are a parent and you have no direct responsibility for a child, it is a bit rough if you are then potentially covered by the provisions of the legislation. My amendment seeks to cater for that and, in essence, just cover those parents who have responsibility for children. The government has indicated, as I understand it, that they will support it, so enough said.

The Hon. G.E. GAGO: The government rises to support this amendment. It clarifies that a parent cannot be considered to be a guardian of a child unless responsible for the day-to-day welfare of the child.

Amendment carried.

Progress reported; committee to sit again.

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