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Legislative Council - Fifty-Third Parliament, First Session (53-1)
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Bills

Commissioner for Children and Young People Bill

Second Reading

Adjourned debate on second reading.

(Continued from 21 May 2014.)

The Hon. J.M. GAZZOLA (17:39): I rise to indicate the government's opposition to this private member's bill. The government introduced the Child Development and Wellbeing Bill to establish a commissioner for children and young people on 19 June this year in the House of Assembly. In the second reading explanation, at pages 925 and 926 of Hansard, I note that:

The bill will amend the Children's Protection Act 1993 to remove the provisions in that act that established the Council for the Care of Children.

We have consulted the Council for the Care of Children, and that body is supportive of being replaced by a commissioner with a broad mandate to advocate for the rights and interests of children and young people in South Australia.

But it seems that the honourable member has decided to reinvent the wheel and introduce his own bill. Adapted, it appears, from an exposure draft for the Child Development and Wellbeing Bill 2013, this current iteration fails to take into consideration the extensive consultations carried out on that draft, especially those related to the proposed role and function of a commissioner.

Essentially, the private member's bill ignores a wealth of consultation from stakeholders, families and children and young people themselves on what the role of a commissioner should be. Furthermore, it disregards the very strong message that emerged from those extensive consultations—the message that the government bill's focus should be on a proactive, whole-of-community approach to child development, wellbeing and rights, that it should support prevention as well as intervention.

What we have before us today represents a heavy focus on intervention and punitive measures. This bill fails to recognise that child safety and protection do not operate in one dimension. It fails to address the whole picture of a child's life, the educational, social, economic and environmental factors, among others, that impact on children's development and wellbeing. In contrast, guided by community views, the government bill focuses on all aspects of children's development. I emphasise the fact that safety is recognised as being of paramount importance. This imperative is embedded in the bill, just as it is in the recent amendments to the Children's Protection Act 1993.

The government's bill establishes the child development council and an outcomes framework for the state, provisions which attracted strong support in the consultations. The council and the outcomes framework will be underpinned by the community approach to children's wellbeing and development that I have described and ensure efforts are backed up by research and data. This is an approach championed by neuroscientists, researchers and economists, including the late Dr Clyde Hertzman; Thinker in Residence, the late Professor Fraser Mustard; and Nobel Laureate Professor James Heckman.

The council and the outcomes framework will ensure that state and local government agencies are held to account by requiring them to demonstrate exactly how they are working to improve outcomes for children and young people. Surely the evaluation of programs by way of measurable goals and formal reporting protocols is a fundamental feature of all that we do in this place and all that we aspire to do. In this instance, though, and quite curiously, the honourable member has removed the requirement for both the child development council and the outcomes framework from his bill.

In essence, while the government bill I have described employs a whole-of-community approach, focusing on children's wellbeing and development, this private member's bill is manifestly both narrowly targeted and heavily weighted towards punishment and intervention in the aftermath of abuse. We can certainly do better than this for the children and young people of South Australia, and we will do so. On that basis, I urge all honourable members to oppose the bill.

The Hon. T.A. FRANKS (17:43): I rise today to voice the Greens' support for this bill, which would finally enable South Australians to have a commissioner for children and young people. The establishment of independent state bodies has been an important mechanism for providing a voice for children in decision-making before, and it is about time South Australia had a strong independent advocate for the voice and rights of children and young people.

As things currently stand, South Australia is the only state in Australia that does not have a commissioner for children and young people. We have a Council for the Care of Children, which is an independent advisory body for the Minister for Families and Communities, as well as the Guardian for Children and Young People. However, a guardian is simply not adequate. As the guardian's role is to advocate for the best interests of children and young people under the guardianship or custody of the minister, so a commissioner for children and young people is essential, as all children and young people deserve and need a voice.

The Greens recognise that children and young people have their own opinions and feelings and, as is stated in this bill, are not simply passive recipients of services and they are able to shape their own lives. We do not have to wait for young people to grow up to be meaningful; they are empowered, passionate and active in deciding their own futures now and, as such, deserve to have a voice in any decision-making process that affects them.

If there is one thing that highlights the need for a commissioner for children and young people in this state, it is the failure of this government to stand up for the rights and needs of our children. This is evidenced by the current Families SA debacle, but was also touched on by the Hon. Mr Wade in his speech, when he mentioned the case of Chloe Valentine.

The government continues not to take children's issues seriously under their legislation and their proposed commissioner for children. For a government that claims to be committed to appointing such a commissioner, it has clearly misunderstood the purpose of that commissioner and in whose interests that commissioner should be acting and, indeed, in whose interests this government should be acting.

The commissioner as proposed by the Labor government is not even independent. Their commissioner would be acting in the government's interests and would be seen and not heard, which is the exact opposite of what children and young people need in this state. Another example that clearly shows why a commissioner for children and young people is needed in South Australia is the case of the two Woodville High School students who were taken by the federal government on 26 June this year.

We now know that other young asylum seekers living in community detention have fled as a result, fearful that they might also be taken. We also remain very concerned for the wellbeing of both those children and, indeed, those in detention in Darwin now. No-one knows where these children who have fled are or if they are being looked after. I wish to emphasise that the two boys who were taken away by our federal government had done nothing wrong. They were simply told that the minister, who is also their guardian, had decided that it was in the best public interest not to have them living in our South Australian community.

However, should a guardian be acting in the children's best interests? When has acting in the best interest of children also not been acting in the public interest? I quote the Reverend Mark Riessen from the Churches of Christ South Australia and Northern Territory, who is part of the Australian Churches Refugee Taskforce. He said, 'The children's guardian cannot also be their jailer.'

I feel that this situation highlights the need for an independent commissioner for children and young people, in a different way, which has not been raised previously in this debate—a person with authority and power who would be able to speak up for these children when they have been denied the opportunity to do so themselves; to look after them when their appointed guardian has not. Further, our government should be exploring avenues through which our state could protect the rights and welfare of the refugee children who have fled their homes as a result of the federal government taking away these two boys, fearful that the same may happen to them. It is especially important that they have a strong independent protector who can speak to the government on their behalf since it is now apparently stated to be illegal for any member of the community to shelter these children.

On the topic of the commissioner communicating with the government, I also wish to draw the council's attention to the fact that under this proposed legislation the commissioner, while remaining independent, is held accountable to the government and must produce an annual report. This is, of course, absolutely essential so that everyone can know what work the commissioner has been doing and gain an insight into the issues affecting our children and young people. However, for the commissioner to truly afford our children and young people a voice in decision-making and to identify systemic issues that affect them, and for those issues to be not just seen with a figurehead of a commissioner but indeed heard, not only by the government but by the parliament, it is essential that a government minister responds to these reports.

These reports would not simply include the annual report but, as has been identified, could indeed enable the commissioner, when other avenues are not appropriate, to report on systemic issues of concern for action by this government. It is for this reason that I have circulated amendments, and I will speak to them further in the committee stage of this debate. The Greens believe and will put strongly that if these reports are produced by the commissioner for children and young people then the government should be required and compelled to respond to those reports, even if that response is a non-response. If no action is to be taken then the minister must provide reasons as to why no action is to be taken. If action is to be taken then there must be transparency about what action is and can be taken.

I implore the council to accept these amendments. Certainly the children and young people of South Australia have rights. They have a voice and they deserve a commissioner to represent them. With that, I commend the bill to the council.

The Hon. G.A. KANDELAARS (17:49): I rise to speak on the differences between the government bill and the private member's bill. I have a number of concerns with the private member's bill in addition to those raised by my colleague. As you know, when Labor came into power in 2002 one of the first things we did was establish a review of child protection, conducted by Robyn Layton QC. In recommending a commissioner, the review specifically stipulated that the functions of deciding complaints and grievances not be part of the role.

This private member's bill disregards that recommendation, charging the commissioner with investigative powers for individual cases. In doing so, it duplicates and undermines the functions and expertise of the South Australian police force and other bodies. It fails to promote continuous improvement of agencies working with children, young people and their families. By placing the burden of responsibility on the commissioner, the private member's bill fails to recognise we all have a role to play in child protection.

In contrast the government bill aims to build capacity of all agencies to respond to child protection cases. It focuses on proactive strategies to prevent child abuse and set the role of the commissioner to lead a community approach to children and young people's safety, development and wellbeing. The commissioner has an authoritative role to oversee an integrated approach by agencies and partners working with families and investigating matters affecting children.

The private member's bill also is out of step with practices in other states. New South Wales, Victoria, Queensland, WA and the Northern Territory have all reviewed their commissioner's functions over the past two years. No Australian jurisdictions include full investigative powers for their commissioners of children and young people. Queensland removed investigative powers from the commissioner's function from July this year—the last jurisdiction to do so. The cost of the Queensland commissioner was $42.5 million for the 2012-13 financial year, including a staff of 330 full-time and 165 casual employees, and 49 contractors.

At a time when the Abbott government is exerting unprecedented pressure on the South Australian budget, its state counterparts have failed to identify how they will pay for the commissioner model their private member's bill seeks to establish. In comparison, the government's bill is fully costed and funded.

The private member's bill is heavy-handed, it directs an inordinate amount of resources downstream instead of getting the right balance between punishment and prevention, and it wastes resources by duplicating roles. All in all, it is an insufficiently considered piece of legislation that fails to address the whole picture of child safety and protection.

The Hon. R.L. BROKENSHIRE (17:53): Family First will always support initiatives that establish and promote opportunities for South Australian children to fulfil their potential. We wholeheartedly agree that every child has the right to a safe loving environment and that families and government should work together to ensure our children are protected, and for this reason Family First strongly supports the intention of the bill the Hon. Stephen Wade has put before us today.

The creation of a commissioner for children and young people has long been recommended. It has been over 10 years since Robyn Layton QC handed down her report recommending a children's commissioner be established. I note with interest that every other state and territory has a children's commissioner and some even have both a children's commissioner and guardian. We now even have a commonwealth children's commissioner and yet South Australia does not. The lag in establishing such an important position is quite disturbing. The Law Society in considering the government bill presented several concerns and notably commented:

In establishing the role of a Children's Commissioner it is imperative that the planning and operational components of the child development agendas of the Government are not confused with the clear requirement for an independent role to oversee these initiatives and ensure that they comply with our obligations under the United Nations Conventions on the Rights of the Child.

The submission further noted the need for the commissioner to have the necessary powers to carry out an effective advocacy role and to provide a greater service than to coordinate and oversee integration of various government policies and reports alone.

I note that this bill certainly goes some way to satisfying those recommendations and that the commissioner will, in short, promote the rights and interests of children and young people in the state by giving children a voice; monitoring the decisions of government and non-government agencies; conducting research and providing suggestions to government; ensuring all government agencies that deal with children are implementing and following best practice policies on child protection matters; having full investigative powers to be a truly independent statutory officer; and, promoting the United Nations Convention on the Rights of the Child in all areas of community life.

The Law Society noted, and I tend to agree, that it is difficult to see how a commissioner can achieve the necessary credibility with children unless they are able to listen and act upon individual complaints. This is paramount. The government has had 10 years to comply with the one very important recommendation of Robyn Layton QC. I note that a government spokesperson in their debate acknowledges that that was paramount to the government's platform when it first came into office, but we have now waited 10 years for the government to actually act. How can the parliament have confidence in a government bill when it has taken them 10 years to get the bill to debate?

It appears that one of the biggest differences between the government bill, which has been dragging and lagging for all those years, and the bill of the Hon. Mr Stephen Wade is that it will have absolute independence and it will have investigative powers. I have to say that our constituents who have been talking to us for some great period of time have pleaded to have a bill come in with those investigative powers and with absolute independence.

Family First put up a bill and were pushing to go slightly further to actually have a children's and education ombudsman. It is clear that we are not going to get that through the parliament, but this is the next best thing. I appeal to the government that they are not, with their bureaucracy, the only people with wisdom in this state and that this parliament needs to be listened to from time to time. Had the parliament been listened to and had some expediency occurred with respect to this bill, we may not be now facing the horrendous situations and the structural issues that we are facing with Families SA.

We have an amendment, which I will briefly speak to now, because I understand that it is the intent of the parliament to put this bill to a debate in this council today. I will be very brief, but I want to reinforce the seriousness with which Family First has considered this. We do not apologise for one moment for keeping absolute pressure on a government that, frankly, has probably the most intense problems that I have seen in any agency in nearly 20 years of being in the parliament. We do not apologise for keeping pressure on the government; we ask the government to be bipartisan on this and support it.

We now flag to our colleagues in the Legislative Council that we have an amendment, one amendment only, and that is about the appointment process. I will speak to it now so I do not take up any more time. The intent of that amendment is that the minister, through cabinet, will not be able to just hand pick somebody whom they think is suitable for this job and appoint them. There will be a process that is proper professional practice in that appointment.

The minister, whilst I think we have given plenty of flexibility to support them in how they set up the panel, will have to set up an independent panel that will go through all the professional processes and practices that we would expect to be able to get an absolutely independent commissioner and one who is recommended to this government and ultimately the Governor of South Australia, processes that ensure we get the best possible person into that job. With that, we commend the Hon. Stephen Wade for putting the bill forward and we strongly support this bill.

The Hon. J.A. DARLEY (18:00): I rise briefly to indicate my strong support for the Hon. Stephen Wade's bill for all of the reasons indicated by the Hon. Stephen Wade and my crossbench colleagues.

The Hon. S.G. WADE (18:00): I thank all honourable members for their contribution to the second reading debate, that is, the Hon. John Gazzola, the Hon. Gerry Kandelaars, the Hon. Tammy Franks, the Hon. Robert Brokenshire and the Hon. John Darley. As I have nothing to disagree with the Hon. Robert Brokenshire, the Hon. Tammy Franks and the Hon. John Darley, you will forgive me if I focus particularly on passing comments on the contributions of the other gentlemen.

The Hon. John Gazzola suggested that I had ignored a wealth of consultation that occurred during last year. I presume that he is referring to the government discussion paper which was released in July 2013. I must admit that I was gobsmacked at that because I think that I have read every submission the government received on that bill—certainly, all of those that were available on the website—and the overwhelming tenor of those submissions was to criticise the government for not including in the discussion paper a proposal for a children's commissioner.

The government bill that was, I think, dated 3 October 2013 had a commissioner but it did not have investigative powers, and what was a recurrent theme in the submissions that were made to the government's discussion paper was, 'We want a commissioner with investigative powers.' I appreciate that the Hon. John Gazzola was probably acting on advice he received, but I do not believe that I am ignoring the wealth of consultation; I believe the government is crudely ignoring the consultation they themselves put out.

The other point which I understood the Hon. John Gazzola to make was that the private member's bill that I put before this council fails to take a whole-of-community approach. I certainly agree with the Hon. John Gazzola that it is vital that we do. It is vital that a children 's commissioner looks at the rights, wellbeing and development of children across all of the domains that will be vital for their development to fully-functioning adults.

I am gobsmacked. I cannot see how I have narrowed the scope. In fact, the objects of my bill are exactly the same as the government's bill except for one reference: I dared in mine (paragraph (j)) to add the United Nations Convention on the Rights of the Child. If that was a sin, I pray for the council's forgiveness. In my defence, I would make the point that, in the government's bill tabled on 21 May, that was the one clause of my whole bill they took on. So, if I am a sinner, so is the minister.

I cannot see how I am failing to take a whole-of-community approach. The objects are just as broad as the government's. If the Hon. John Gazzola is suggesting that I am failing to take a whole-of-person approach because I am not including an outcomes framework, I would humbly suggest that that is a bureaucratic focus on a whole-of-community approach. I certainly intend, and this bill certainly intends—and I hope that all honourable members understand—that the commissioner would take a broad view of the development of children.

The Hon. Gerry Kandelaars' comments tried to misconstrue the commissioner as a complaints body. That is definitely not the case. The commissioner, particularly with the amendments I have tabled and will be putting to the bill, has a discretion to investigate a matter. Under the amendments in particular the primary focus of the commissioner as a systems advocate is underscored by the fact that for the commissioner to be able to investigate a matter—if I can quote from the bill—the complaint must relate to a matter that can be investigated by the commissioner and it must be a matter which is of particular significance to children and young people and it also needs to be in the public interest.

The Hon. Gerry Kandelaars' suggestion that it is going to cost $40 million to run the commissioner made me reflect on the comparison with the Coroner's jurisdiction. The Coroner's Court received, in the 2012-13 financial year, 2,200 notifications of reportable deaths. The Coroner actually has a discretion as to whether or not they will hold an inquest into a reportable death and in the 2012-13 financial year the Coroner investigated 1.7 per cent of reportable deaths. So, the Coroner has a similar discretion to the commissioner as to whether or not a particular death is investigated.

I would submit to the council that it is a very similar process to what the commissioner will have to go through. Just as the Coroner and his team say to themselves, 'Is this reportable death a death that could shine a light on processes and steps that we as a community can take to avoid a future death?', likewise the commissioner is asked, particularly with the amendments I am putting forward tonight, 'Is the matter that we are looking at a matter that we could be investigating? Will it actually shine a light on opportunities to improve the protection and development of children?'

Having looked at 2,200, they end up with 1.7 per cent of reportable deaths investigated. In that financial year it was an annual budget of $6.5 million. I suspect that the Hon. Gerry Kandelaars is using the logic: well, the Coroner has 2,200 reportable deaths, isn't he going to be busy? On the same logic, the $6.5 million budget of the Coroner should actually be $386 million. I assure the council that I do not expect the budget of the commissioner to be anywhere near $386 million; in fact, nowhere near the $42 million that the government postulates.

I made the point about the discretion: the commissioner already has the discretion to choose which are the cases that can actually shine a light, and it may well be that from year to year the commissioner may not find any cases they think can shine a light on systems issues that they as the systems advocate would believe would benefit children.

A further reason why I would argue that the government is scaremongering on the resources issue, is the capacity for the commissioner to engage other agencies.

The Hon. R.L. Brokenshire: They actually did that with ICAC for years, that's why they couldn't have an ICAC because it was going to cost a fortune.

The PRESIDENT: Order! Do not interfere when the member is on his feet.

The Hon. S.G. WADE: In clause 27, my bill specifically envisages that the commissioner may decide that a complaint is not appropriately dealt with by the commissioner so they refer the matter to the police, to a state authority or to an inquiry agency. I would remind honourable members that those inquiry agencies are incredibly broad. They are in clause 3 of the legislation and they are: the Ombudsman; the State Coroner; the Police Ombudsman; the Commissioner for Public Sector Employment; the ICAC; the Health and Community Services Complaints Commissioner; the Child Death and Serious Injury Committee. So, another reason why I do not believe that this model is inefficient or overly expensive is because of the capacity for the commissioner to engage other agencies in pursuing matters.

One of my amendments (amendment No. 9) reinforces the capacity for the commissioner, if you like, to run their inquiry parallel to another inquiry. I can imagine the commissioner developing a relationship with, for example, the Child Death and Serious Injury Review Committee, where the committee might look at the paper-based review they authorised to do, and the commissioner for children and young people might say, 'While you are doing that, I will do an investigation into this aspect.'

I believe that the bill that is before us is very responsible in terms of making sure that we have a proper, efficient integration of the range of agencies available and that the commissioner would add to that, rather than duplicate it. I wanted to provide that reassurance to the house. I want to highlight what my honourable colleagues in supporting this bill have also highlighted—that the opposition bill is preferable to any bill that has been foreshadowed by the government, although it would be disorderly for me to refer to a bill that is not in our Notice Paper. It would propose a commissioner who is truly independent, who has full investigative powers and who is fully accountable to this parliament.

I would also comment that since tabling this bill I have been contacted by the family of Chloe Valentine to indicate their support for a commissioner. They appreciate that this commissioner may never investigate Chloe's situation, but they are very supportive of steps that can be taken to provide children with a systems advocate with real teeth, with a real opportunity to shine the light on how our state can do better at protecting and developing our children. With those comments, I thank all members for their contribution to the second reading debate and look forward to the committee consideration as a matter of expediency.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. S.G. WADE: I would just like to mention that on the resources issue I should have added that a number of the key stakeholders in this debate have highlighted the issue of resourcing. In that context, I would like to particularly pay tribute to the work of YACSA, the Law Society and the Australian Medical Association, all of whom have been strong advocates for an independent commissioner with investigative powers. The AMA, Law Society, and I think YACSA too, have all stressed that the commissioner does need to be adequately resourced.

The Hon. T.A. FRANKS: I just wonder if the sponsor of the bill addressed the concerns that the bill would have an enormous financial impost, given the comparison was made with the Queensland model, and indeed the difference in the treatment of community visitors between South Australia and Queensland.

The Hon. S.G. WADE: I thank the honourable member for the question. My understanding is that the comparison with Queensland is not a fair comparison because the commissioner there has responsibility for a whole range of functions that are not intended by this act. For example, I understand the commissioner there has supervision of the Community Visitors Scheme. Be that as it may, even if we were the only state in Australia to have a commissioner with investigative powers, I would put to this committee that it is doubly important that we do so. It was highlighted to me earlier this week by a matter that was about land management, and one of the members in our party room said, 'We've got to do something. People just don't trust the government.' If there is anywhere where people no longer trust this government, it is child protection.

We need to have an independent commissioner who is independent from government, who has investigative powers and who is accountable not to the government but to this parliament. The government might say that things are different in other states. I would say the reason that we need a stronger commissioner than any other state is that things are different in this state. We need a commissioner particularly because of the situation that we find ourselves in under this government.

Clause passed.

Clauses 2 to 6 passed.

Clause 7.

The Hon. R.L. BROKENSHIRE: I have a point of clarification for the record to do with paragraph (h). Basically, whilst I have indicated that we support the bill per se, I believe that it is paramount that the commissioner, when reading the second reading and the clauses, understands that it is not the intention of the parliament to allow the commissioner to assess, for example, in an independent school, whether or not it is in the children's interest that it have a Christian ethos or for that matter any other religion.

In other words, whilst the commissioner is there to look after individual issues to do with children and children's rights, it is not the intent of this clause to indicate to a commissioner that they could investigate the rights and wrongs of having a religious focus in an independent school.

The Hon. S.G. WADE: I would make a couple of comments. First of all, the investigative powers in part 5 are not limited just to government providers, but I would make the point that clause 20 provides a particular focus on policy, practices and procedures of government. In terms of respecting the role of non-government providers, clause 7(h) refers to NGOs. Let me put that in context, that is, in part 2—Declaration, objects, principles and statutory duties. The principles in clause 7 include paragraph (h), but reading it in context, clause 7 provides:

The following principles must be taken into account in the administration and operation of this Act:

and paragraph (h) states:

the role of non-government organisations, services and programs within the community can strengthen and improve outcomes for the development and wellbeing of children and young people;

I suspect the Hon. Robert Brokenshire's attention has been brought to this issue by correspondence from the Association of Independent Schools. The association has also written to the opposition and they have expressed concern that the bill could allow for the commissioner to interfere with the day-to-day management of independent schools. That is certainly not the intention of the opposition.

The opposition does intend that the commissioner would have regard to the principle that non-government organisations, whether they are religious or otherwise, can contribute positively to the development of the wellbeing of children and young people, and one of those distinctives is the religious element. One of the other distinctives is the different models of governance which engage parents. There is a range of foci in non-government schools that would facilitate the development of children, and clause 7(h) specifically calls on the commissioner and other state authorities to recognise the positive contribution of non-government organisations.

Clause passed.

Clauses 8 and 9 passed.

Clause 10.

The Hon. S.G. WADE: If the Chair is agreeable, could I move [Wade-1] 1 and 2 together?

The CHAIR: Yes.

The Hon. S.G. WADE: I move:

Amendment No 1 [Wade–1]—

Page 7, line 2 [clause 10(1)]—Delete 'Subject to this section, the' and substitute 'The'

Amendment No 2 [Wade–1]—

Page 7, lines 4 to 15 [clause 10(2) and (3)]—Delete subclauses (2) and (3)

They are to the same point; that is, to remove any form of ministerial direction. The intention of the current provisions in relation to ministerial directions were so the minister could provide guidance in relation to, shall we say, administrative matters that do not impinge on the functions of the commissioner. YACSA, the Law Society and the AMA all expressed particular concerns about subclauses (2) and (3).

We certainly believe that the commissioner should engage cooperatively with government to make the best use of public resources, but all of those stakeholders, who are all greatly respected in this area, had concerns that that might go beyond, shall we say, cooperative resource management and undermine the independence of the commissioner. We are not willing to countenance that risk, so we propose to the council that we fully remove the capacity for the minister to direct the commissioner.

Amendments carried; clause as amended passed.

Clause 11.

The Hon. R.L. BROKENSHIRE: I move:

Amendment No 1 [Broke–1]—

Page 7, lines 17 and 18 [clause 11(1)]—Delete 'nomination of the Minister' and substitute:

recommendation of the selection panel

I spoke to the amendment earlier.

The Hon. T.A. FRANKS: I indicate the Greens will be supporting this amendment. We certainly believe that the nomination process and the selection of this person is too important to leave to the minister or the government alone. As other speakers of non-government persuasions have indicated, people just do not trust the government on child protection, so why would we trust them to be empowered to select the commissioner?

The Hon. J.A. DARLEY: I wholeheartedly support the independence of the role of the commissioner for children and young people; it is an integral feature of the proposal that we are debating. The Hon. Robert Brokenshire's amendment, which was only filed a short time ago, appears on the face of it to reinforce that independence. That said, because we have had such little time to consider it, I indicate that I am willing to support it at this stage so as to enable the bill to be passed, but reserve my right not to insist on it during further debate between the houses.

The Hon. S.G. WADE: I take the opportunity to mention that the issue that the Hon. John Darley has highlighted in relation to the Hon. Robert Brokenshire's amendment as to how the selection of the commissioner reinforces the independence of the commissioner is an issue that was raised at a round table that the Hon. John Darley, the Hon. Tammy Franks and a number of members of the chamber participated in last Thursday. This issue that was raised was that our bill—the bill that is before us today—does not try to protect the independence of the commissioner on the way in; it rather focuses on protecting the commissioner from removal, if you like, on the way out.

Coming out of that round table, and having that concern raised by both members and stakeholders who were present at that round table, we gave thought to how we could protect the independence. The way we normally do it is through the Statutory Officers Committee. We did not believe that this office was of a nature that should go to the Statutory Officers Committee, so we did not take that issue any further. The opposition is attracted to this model because, if you like, it is a way to provide some independence on the way in. I am a touch concerned about whether we are complying with Executive Council rules, because I am not sure whether a selection panel could actually send it to the Governor.

The Hon. R.L. Brokenshire: I can explain that.

The Hon. S.G. WADE: I would certainly appreciate that.

The Hon. R.L. BROKENSHIRE: For the information of the house, I checked on that during the drafting because, for all intents and purposes, that is just the way they draft. It actually means that when the panel is assessed at all, that recommendation goes to the minister. Ultimately and eventually, like other appointments, the Governor signs off on it, but that is how parliamentary counsel advised it had to be drafted rather than have the word 'minister' there, but it will actually go to the minister, and I do not have a problem with that. It is the assessment and recommendation that I want to see independent.

The Hon. S.G. WADE: The opposition supports the independence of the commissioner. I thank the honourable member for his explanation, and we will be supporting amendments Nos 1 and 2 of Mr Brokenshire's set 1.

The Hon. B.V. FINNIGAN: While I do not oppose these amendments this evening, I think that the Hon. Mr Darley has raised a point about whether this is the right way to go about what the amendments intend.

It seems that honourable members are saying that we want there to be a process by which the commissioner is appointed, rather than just by the executive, and that is a fair enough aspiration, but I am not sure that this amendment achieves that, because the minister can appoint virtually anyone on any terms to comprise the selection panel. If you are saying that you want this process whereby the minister cannot just appoint somebody without consultation—

The Hon. R.L. Brokenshire interjecting:

The Hon. B.V. FINNIGAN: Well, here you are saying that the minister can appoint a selection panel consisting of such number of persons as the minister thinks fits and who, in the minister's opinion, collectively have sufficient qualifications or experience. Essentially, the minister could appoint a selection panel entirely of their choosing, designed to recommend whoever they like.

Also there is a lack of definition about what this selection panel would do and how it would do it. I know it says what it can do or should do, but we see in a lot of modern positions, like ombudsmen or commissioners, that there is a fairly prescriptive, often legislative, framework for how they are appointed, which may include the Statutory Officers Committee or other methods of assessing applicants.

That is a worthwhile and reasonable aspiration, but the wording of this particular amendment is a bit haphazard in not being prescriptive enough about how it would go about it: how many people would be on the panel, what would happen if they are not in agreement, are there particular people from certain sectors or interest groups that have to be represented, and none of that is really explicit there, which generally would be for that kind of provision. While I do not intend to oppose it as such, I put those matters forward for consideration.

The Hon. S.G. WADE: I do not profess to speak on behalf of the Hon. Robert Brokenshire, but I note that the second amendment in clause 6 does say 'the regulations may make further provisions in relation to the selection panel'. To the extent to which the Hon. Bernard Finnigan's comments highlight an opportunity to improve the provision, that can be done either between the houses, or it might even be appropriate to leave it to the regulations.

I remind members that the bill I tabled provided for, if you like, a scheme to be published in the Gazette. What the Hon. Robert Brokenshire's amendment is doing, as far as I can see, is to say, 'That's fine, you can develop a scheme and promulgate it, but it has to have a selection panel in there.' It has to have an independent selection panel and we think it may well benefit from further work, and the Hon. John Darley has encouraged us in the dialogue with the other place to see if there is an opportunity to improve it. I think the Hon. Robert Brokenshire is really asking this house tonight: is this a practical way of protecting the independence of the commissioner on their way to appointment? The opposition is of the view that it is practical, it is workable, and we will be supporting it.

Amendment carried.

Sitting extended beyond 18:30 on motion of Hon. G.E. Gago.

The Hon. R.L. BROKENSHIRE: I move:

Amendment No 2 [Broke–1]—

Page 7, lines 23 to 25 [clause 11(3)]—Delete subclause (3) and substitute:

(3) The Minister must, in respect of each appointment of the Commissioner (other than a reappointment), establish a panel (the selection panel) consisting of such number of persons as the Minister thinks fit and who, in the Minister's opinion, collectively have sufficient qualifications or experience to enable the panel to choose an suitable person to be appointed as the Commissioner.

(4) The selection panel established in respect of a particular appointment is responsible for—

(a) advertising the position of Commissioner; and

(b) assessing the applications received for the position; and

(c) recommending to the Governor 1 or more of the applicants for appointment to the position.

(5) Subject to this Act, the selection panel may determine its own procedures.

(6) The regulations may make further provisions in relation to the selection panel.

This amendment is consequential.

The Hon. S.G. WADE: We see it as consequential too.

The Hon. T.A. FRANKS: It is consequential.

Amendment carried; clause as amended passed.

Clauses 12 to14 passed.

Clause 15.

The Hon. S.G. WADE: I move:

Amendment No 3 [Wade–1]—

Page 9, after line 15 [clause 15(3)]—After paragraph (d) insert:

(da) to develop and publish a community engagement plan in accordance with the regulations;

Amendment No 4 [Wade–1]—

Page 9, lines 19 to 21 [clause 15(4)]—Delete 'practicable, engage with children and young people in the performance of his or her functions under this Act (other than in relation to an investigation under Part 5).' and substitute:

practicable, engage with (in this order of priority)—

(a) children and young people; and

(b) the parents, families and carers of children and young people; and

(c) any relevant peak bodies and non-government organisations,

in the performance of his or her functions under this Act (other than in relation to an investigation under Part 5).

Both of them are particularly motivated by calls from the Youth Affairs Council of SA to make sure that the engagement with children and young children is maximised, and I do acknowledge that a number of other stakeholders were keen to reinforce that. How we seek to do that is through these two amendments: require the commissioner to develop a community engagement plan, require the commissioner to particularly consult with children and young people but also parents, families, carers, relevant peak bodies and the non-government organisations.

Then, in amendment No. 5 [Wade-1] we will be asking the commissioner to report against that plan. So this is all about community engagement and giving a priority voice to children and young people.

Amendments carried; clause as amended passed.

Clause 16 passed.

Clause 17.

The Hon. S.G. WADE: I move:

Amendment No 5 [Wade–1]—

Page 10, after line 8 [clause 17(2)]—After paragraph (f) insert:

(fa) any information required by the regulations in respect of the community engagement plan referred to in section 15(3)(da);

I would suggest to the committee that it is basically consequential in the sense that it requires the commissioner to report against the communication plan that has been promulgated under section 15(3)(d).

Amendment carried; clause as amended passed.

Clauses 18 to 20 passed.

Clause 21.

The Hon. T.A. FRANKS: I move:

Amendment No 1 [Franks–1]—

Page 11, after line 26—Insert:

(3a) The Minister must, on receiving a report under subsection (3), prepare a report to Parliament setting out—

(a) the Minister's response to the Commissioner's report; and

(b) if any action has been taken, or is proposed to be taken, (whether by the Minister, a State authority or any other person or body) in relation to a recommendation to which the Commissioner's report relates—details of that action or proposed action; and

(c) if no action is to be taken (whether by the Minister, a State authority or any other person or body) in relation to a recommendation to which the Commissioner's report relates—the reasons for not taking action; and

(d) any other information required by the regulations.

This amendment seeks to, where the commissioner provides a report to the parliament, ensure that the minister responds within 12 parliamentary sitting days to that report. Even if that report response is to say that no action will be taken, the minister will be compelled under the act to provide that to the parliament.

The Hon. S.G. WADE: I indicate that the opposition is attracted to these proposals. It is not dissimilar to what we require of the government in relation to coronial inquests. If there is a report on a matter that the commissioner thinks is important enough to investigate, we believe the community would think it is important enough for the government to respond to that report.

The Hon. R.L. BROKENSHIRE: Family First will be supporting the amendment.

The Hon. B.V. FINNIGAN: I support this suite of amendments.

Amendment carried.

The Hon. T.A. FRANKS: I move:

Amendment No 2 [Franks–1]—

Page 11, line 28 [clause 21(4)]—Delete 'the report' and substitute:

both the report and the Minister's report under subsection (3a)

I see this amendment as consequential.

The Hon. S.G. WADE: So do we.

Amendment carried; clause as amended passed.

Clause 22.

The Hon. T.A. FRANKS: I move:

Amendment No 3 [Franks–1]—

Page 11, after line 32—Insert:

(1a) The Minister must, on receiving a report under subsection (1), prepare a report to Parliament setting out—

(a) the Minister's response to the Commissioner's report; and

(b) if any action has been taken, or is proposed to be taken, (whether by the Minister, a State authority or any other person or body) in relation to the Commissioner's report—details of that action or proposed action; and

(c) if no action is to be taken (whether by the Minister, a State authority or any other person or body) in relation to the Commissioner's report—the reasons for not taking action; and

(d) any other information required by the regulations.

Amendment No 4 [Franks–1]—

Page 11, line 34 [clause 22(2)]—Delete 'the report' and substitute:

both the report and the Minister's report under subsection (1a)

All my amendments are consequential; it is simply the requirement that the minister provide a response to the report.

Amendments carried; clause as amended passed.

Clause 23.

The Hon. S.G. WADE: I move:

Amendment No 6 [Wade–1]—

Page 12, line 4 [clause 23(1)]—After 'may' insert:

(on receipt of a complaint under this Part or on his or her own initiative)

Amendment No 7 [Wade–1]—

Page 12, lines 15 and 16 [clause 23(1)]—

Delete 'that any procedures for resolving matters of the relevant kind under a specific Act have been used appropriately but without resolution of the matter.' and substitute:

that—

(a) any procedures for resolving matters of the relevant kind under a specific Act have been used appropriately but without resolution of the matter; and

(b) the matter raises an issue of particular significance to children and young people; and

(c) it is in the public interest to conduct the investigation.

Amendment No 8 [Wade–1]—

Page 12, lines 29 to 37 [clause 23(4)]—Delete subclause (4)

All these amendments relate to the same matter. If I could express it simply and for the benefit of the house briefly, this set of amendments is responding to the concern of stakeholders that the commissioner is fundamentally a systems advocate and that investigations that the commissioner would undertake would be ones that are of particular significance to children and young people and are in the public interest. In other words, it goes to the point the Hon. Gerry Kandelaars was expressing concerns about; that this is not, shall we say, a mass complaint agency. This is a targeted systems advocate with investigative powers. I hope the committee might find these amendments enhance the bill.

Amendments carried; clause as amended passed.

Clauses 24 to 26 passed.

Clause 27.

The Hon. S.G. WADE: I move:

Amendment No 9 [Wade–1]—

Page 14, after line 8—Insert:

(4a) Subject to this Act, the referral of a matter under this section does not, of itself, prevent the Commissioner from performing his or her functions in relation to a child to whom the matter relates.

Again, this came out of the consultation that the opposition engaged in following the tabling of the legislation. A renowned Adelaide lawyer suggested that it would be useful for the legislation to make it clear that, even when the commissioner decides to refer a matter to an inquiry agency, the police or a statutory authority, the commissioner might still continue to be engaged in that inquiry.

The legal practitioner involved, who is very well experienced in these areas, highlighted the fact that a child or a young person might need the support of the commissioner and might be reassured by the continued engagement of the commissioner. Also, it goes to the point that I mentioned earlier, which is you might have complementary jurisdictions between the commissioner and a referred agency. I move the amendment and seek the support of the council.

Amendment carried; clause as amended passed.

Clause 28 passed.

Clause 29.

The Hon. S.G. WADE: I appreciate I do not have an amendment on this clause but I wanted to put on the record that there has been some concern that when you look at the bill the powers seem very strong. My understanding is that the powers are no more substantial than they need to be. If you like, they are the basic level of powers that one would give to a person or body undertaking an investigative role.

I would refer the council to clauses 42(3) and 42(4) which reaffirm that, unlike, shall we say high level investigators, like serious and organised crime investigators or an ICAC, this bill does not override the privilege against self-incrimination, it respects legal professional privilege, it respects without prejudice privilege and public interest immunity. Basically, it is setting the limits of the commissioner at what one would generally see as the usual level for courts, so we believe that it is no more substantial than the commissioner requires to do their task.

In support of that contention, I remind the council that the government appointed Justice Debelle to undertake the independent inquiry. He came back I think on three occasions and sought further powers. The powers he received, as I understand it, were not dissimilar from this. He felt he needed them to do a proper investigation and we believe the commissioner will need them to be able to do a proper investigation.

Clause passed.

Clauses 30 and 31 passed.

Clause 32.

The Hon. T.A. FRANKS: I move:

Amendment No 5 [Franks–1]—

Page 16, after line 35—Insert:

(4a) The Minister must, on receiving a report under subsection (4), prepare a report to Parliament setting out—

(a) the Minister's response to the Commissioner's report; and

(b) if any action has been taken, or is proposed to be taken, (whether by the Minister, a State authority or any other person or body) in relation to a recommendation to which the Commissioner's report relates—details of that action or proposed action; and

(c) if no action is to be taken (whether by the Minister, a State authority or any other person or body) in relation to a recommendation to which the Commissioner's report relates—the reasons for taking no action; and

(d) any other information required by the regulations.

Amendment No 6 [Franks–1]—

Page 16, line 37 [clause 32(5)]—Delete 'the report' and substitute:

both the report and the Minister's report under subsection (4a)

This is consequential.

Amendments carried; clause as amended passed.

Clause 33 passed.

Clause 34.

The Hon. T.A. FRANKS: I move:

Amendment No 7 [Franks–1]—

Page 17, after line 13—Insert:

(1a) The Minister must, on receiving a report under subsection (1), prepare a report to Parliament setting out—

(a) the Minister's response to the Commissioner's report; and

(b) if any action has been taken, or is proposed to be taken, (whether by the Minister, a State authority or any other person or body) in relation to the Commissioner's report—details of that action or proposed action; and

(c) if no action is to be taken (whether by the Minister, a State authority or any other person or body) in relation to the Commissioner's report—the reasons for taking no action; and

(d) any other information required by the regulations.

Amendment No 8 [Franks–1]—

Page 17, line 15 [clause 34(2)]—Delete 'the report' and substitute:

both the report and the Minister's report under subsection (1a)

These are both consequential.

Amendments carried; clause as amended passed.

Remaining clauses (35 to 48), schedule and title passed.

Bill reported with amendment.

Third Reading

The Hon. S.G. WADE (18:45): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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