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

Child Development and Wellbeing Bill

Second Reading

Adjourned debate on second reading.

(Continued from 15 October 2014.)

The Hon. J.A. DARLEY (16:42): I rise to speak on the Child Development and Wellbeing Bill 2014 and to express my disappointment with the government over its insistence on refusing to consider an alternative model introduced in this place by the Hon. Stephen Wade, which has the overwhelming support of members of this house. As honourable members would know, during the last sitting week, the second reading debate of that alternative bill was negatived in the other house with the support of the two Independents, the member for Frome and the member for Waite.

During her contribution, the Minister for Education and Child Development made it crystal clear that the government has no intention of supporting the bill proposed by the Hon. Stephen Wade and will instead press ahead with its own watered-down version of the legislation. One thing is clear: this attitude is yet another example of the government thinking that it and only it has ideas that are worthy of consideration, despite the numbers in this place.

For the record, my position remains unchanged; that is, I continue to support the model put forward by the opposition and, importantly, I continue to support the inclusion of investigative functions for the commissioner. During the debate in the other place, the government indicated that it had consulted extensively on this issue and that its bill is consistent with the feedback received from the consultation process. There are also a number of changes that have been made to the original bill that are said to reflect that.

However, I just want to highlight for the record that, based on the information I have received—and the Hon. Stephen Wade may be able to elaborate on this further—there are some stakeholder groups who have clearly indicated a preference for the opposition bill. If it was a choice between having a commissioner and not having a commissioner, then I am sure the government bill would be accepted. That said, the preference from the outset is clearly for a model consistent with the opposition's bill.

We have waited some 11 years since the Layton Report was handed down in 2003 for the establishment of a children's commissioner. During that time we have all heard of some horrific cases involving child abuse and neglect, and all too often they have resulted in the death of young, innocent and vulnerable children. Chloe Valentine's case stands out as the most glaring example. The government has the opportunity now to nip this in the bud and support changes that will hopefully go some way towards addressing some of the systemic wrongs that have seen children end up in these awful situations. I indicate, for the record, that I will certainly be supporting such measures.

The Hon. R.L. BROKENSHIRE (16:45): I rise on behalf of Family First to speak on the second reading of the Child Development and Wellbeing Bill 2014. As we know, the background is that the Hon. Robyn Layton QC first recommended that the Labor government appoint a commissioner for children and young people in her report in 2003. Over 11 years later, we still do not have a commissioner for children and young people.

Labor opposed giving the commissioner the full investigative powers of an ombudsman, and I am advised that other states that had this power have revoked it. Notwithstanding that, I and Family First believe that the ideal situation would have been an ombudsman for education and children; however, we could not get the support for that, so we clearly have to deliberate on which piece of legislation we now support.

This bill creates a commissioner for children and young people, a child development council to develop the outcomes framework for children and young people, and the power for the child development council to create committees. I would like to talk about concerns about the bill. It is a ministerial appointment for a commissioner: the minister recommends, and the Governor appoints. It appears not to be transparent or independent at all; that is, the government amendment specifically states that the commissioner is independent, but the recommendation of the minister to the Governor calls into question independence.

Members of the child development council are nominated by the minister and appointed by the Governor. The minister may—and I highlight the word 'may'—call for nominations from any non-government organisation that the minister considers should be represented. In relation to the annual report, the government amendment provides for an annual report but does not codify what information should be included, unlike the Liberal bill, which is actually clear in its direction. A minister can exempt someone from being required to give information to the commissioner and the council. The minister has the blanket authority and is not required to give reasons. There is no appeal process for denied decisions, and this certainly does not look independent.

I would like to talk briefly about the differences between the Liberal bill and the government bill. The Liberal bill explicitly stated that the commissioner is independent. That is something that Family First have been very strong on, and that was one of the compromises whereby we were prepared to look at supporting, and indeed did support, the Liberal bill. That was because it did give the commissioner absolute independence, and this was always Family First's intent with respect to the commissioner (or the ombudsman, which we would have preferred).

The government does not mention independence at all; however, the amendment now does. In fact, I know that not long ago in the media, the government, through the relevant minister, was publicly saying why the commissioner should not be absolutely independent when it came to inquiries, and independent in the absolute sense of assessment of individual situations that were reported to the commissioner.

Under the Liberal bill, the removal of the commissioner must be ratified by both houses of parliament. Both houses must also be notified of suspension of the commissioner within seven days. If after 20 sitting days neither house has presented an address to the Governor requiring the commissioner to be restored, the commissioner will be removed from government whereas, with the government bill, the Governor can remove the commissioner.

A third point I would like to put forward is that, with the Liberal bill, the commissioner chooses their employees and they are deemed Public Service employees; however, with the government bill the government allows the commissioner, with approval from the minister, to make use of public servants.

Another difference between the Liberal bill and the government bill is that with the Liberal bill the commissioner has the power to investigate, as I was saying earlier, individual matters and systematic matters. Powers include: taking evidence under oath, entering land or premises, requiring a person to attend or produce information/documents, and retaining documents for a reasonable time, but with the government bill they are opposed to investigative powers in the Liberal bill and the commissioner has the function to inquire into matters as a systematic level. However, the bill has limited powers to affect the inquiry, for example, requiring the production of information the commissioner requires for the performance of their function.

The next point we noted when looking at the two bills and in my second reading speech comparing the bills—because at the conclusion of my second reading speech I will say where we specifically have concerns on what the government is doing—is that the Liberal bill gives the commissioner the power to refer a matter for further investigation to specified agencies, such as the Ombudsman, State Coroner, Police Ombudsman, Child Death and Serious Injury Committee, and others.

Some time ago the minister arranged for me to meet with the Child Death and Serious Injury Committee and, whilst I acknowledge and appreciate the good work that they do and their passion for this very sensitive and difficult area, I note that the two members I met had some frustration that the government just simply did not seem to take as much notice of the recommendations as they should, and my understanding is that, unfortunately, with the way it is structured they do not have to take absolute notice. Regarding this matter, the government is silent, but the bill does not provide this option.

I cannot understand why you would not give the commissioner power to refer a matter for further investigation, especially given that the last select committee we had looked into the very sad and serious situation in the western suburbs, and that has now been through at least some of the court procedures, where it was clear that there were a range of mistakes and a lack of policies and protocols on how matters were referred between just the Education Department and the then minister Weatherill's office when he was Minister for Education.

I do not understand why you would not give the commissioner power to refer matters for further investigation to those other agencies. When you look at the Liberal bill it is required to furnish an annual report to both houses, so there is actually some accountability to parliament. It requires information on the number and general nature of:

complaints received;

complaints investigated;

referrals;

prosecutions and disciplinary actions from investigation;

public statements; and

recommendations.

The government bill is silent on an annual report. Whether or not the opposition are going to move some of their amendments we will wait to see when—

The Hon. S.G. Wade: They are down.

The Hon. R.L. BROKENSHIRE: Right, I need to go through more of that and I apologise for that, but as colleagues know I am solo at the moment.

The Hon. S.G. Wade: They have only just been filed.

The Hon. R.L. BROKENSHIRE: Right, I am trying to keep on top of everything with a colleague away and I do not have the luxury that a minister has of 20 or 30 people looking after everything from filling their fridge with Zero Coke, orange juice and water—

The PRESIDENT: The Hon. Mr Brokenshire, can you stick to your speech please?

The Hon. R.L. BROKENSHIRE: Yes, sir. Sir, you do know the luxuries of being a minister, but I will get back to this. I am not jealous at all. I would rather just battle away with a couple of workers. Anyway, the government bill is very silent on an annual report. Amendments require the production of the report before 30 September and require the report to be laid before both houses within 12 sitting days, but there is no specific requirement as to what is to be included in the report. I find that strange because, in my opinion, all the parameters for the role of the commissioner should be set down in the legislation when it comes to things like reporting processes.

In the Law Society's submission on the bill, the society has indicated that it has not been consulted regarding the amendments and that the government does not intend to consult them, which I find interesting. Governments like to pick and choose when they want support from the Law Society and, at other times, they do not worry about them.

We understand that the Law Society's concerns are that the government commissioner is not independent and, to be effective, the commissioner must be independent and this needs to be expressly provided for. The Law Society is actually on the same page as the opposition, Family First and probably the rest of my crossbench colleagues, I assume. They commented that, without adequate resources, the commissioner would be ineffective. What is the point in having a commissioner if you do not resource the commissioner, unless you want a Clayton's commissioner? It would be good to get some answers on that.

The commissioner has no powers to advocate for children and young people on either an individual or systemic level by investigation on its own initiative and no power to actively intervene or compel information from others. This leaves the commissioner with little to no power or authority, and this will render the role ineffective. That is my understanding of the summing up of the Law Society's assessment of the legislation and it actually concurs with my own concerns about the bill.

The Law Society goes on to say that the bill only allows the commissioner to monitor state authorities, trends and complaints. The commissioner should have the power to conduct inquiries or reviews into matters involving breaches of children's rights. This is an integral function of the role. It enhances the commissioner's power to influence action by state authorities and hold them to account. In its current form, the commissioner will have no such power.

The final two points are, firstly, that the bill gives a new power to the minister to exempt a person or body from giving information to the commissioner under clause 19(4) which will have little impact on changing the culture of the Department for Education and is unlikely to encourage the disclosure of information and, secondly, that the role should be more than a monitor of the government's child development agenda.

I totally agree with those remarks. It is sad to say that, when I wanted to take a delegation of people who had concerns about child protection to meet with the minister, I was requested to attend by myself in the first instance. When I got there, the minister had plenty of people around to shield him. That is the minister's call, but I just feel that, every step of the way, sadly, this government has had to come kicking and screaming on the whole issue around children's rights and child protection and the integrated rights of the parents and extended family of children.

By comparison, when I was calling for a select committee, which is now occurring, I was told that I was using children for political benefit, which I found disgusting. I had constituents coming to me raising these issues and files like I have never seen, and it has been increasing year in, year out over the last few years. But that is what I was told, and then when the media continued their push this time, as against the last time when the media were not so interested, all of a sudden we have a royal commission. That really is, in all honesty, how this government seems to progress, if you can call it that, on these issues.

Based on what we will hear in other second reading speeches, we will discover whether the Legislative Council is going to support this bill, which I think is a fairly ineffective bill, if we are serious about what is the most important matter in the state, and that is the development of our children and, importantly, the wellbeing of our children. We will have to assess what the chamber has to say.

We did have a chance for a multipartisan approach to this, which I would love to have seen just for once, whether it be with a crossbench member or an opposition member with a private member's bill. It rarely happens. In the nearly 20 years I have been here I have not seen it happen a lot, but there was an opportunity for multipartisanship for the best possible outcomes.

There was a bill, that was stronger than this bill, that was put before this house and passed by an absolute majority. It went down to the lower house and was effectively defeated as the government used its numbers, including its latest two what I call Labor ministers they have put into the team. It should have been multipartisan, but what I will say now is, because it is not multipartisan, at this point in time we have not had the chance to not only get the best outcome in legislation, but actually build a better ethos for something that I am sure, deep down, we all desire, that is, the protection and wellbeing of our children.

It is going to get down to the committee stage now. Clearly, we are not going into committee today, but I advise the government that Family First will be looking to support amendments and/or move amendments that address the issues that I have raised on behalf of Family First in my second reading speech, and that we will be looking to give this commissioner the strongest powers possible, so that she or he will be able to do their job without having one hand tied behind their back.

After taking 11 years to get to a situation where we now finally have a bill we are debating, let us get it right for the long term. There are a lot of people out there who are lobbying our party, and I am sure other parties and individual members of parliament, who want that independence, who want those teeth, who want those proper investigative powers.

The government has given me no strong argument whatsoever as to why they should not and will not support that. We will be looking to closely support those amendments that go down that track. At this point in time, so this is not spun in the wrong way by the government when they want to attack us if indeed we do not support the third reading of this bill, I put the government on notice that we will have to consider whether we support the third reading of this.

I do not want the government turning around and saying that we are not absolutely focused on the protection and wellbeing of children, because we are 100 per cent committed to that, but we want to see a piece of legislation that ensures that that occurs. In conclusion, I do not believe that this government bill goes anywhere near ensuring that that will occur.

The Hon. S.G. WADE (17:02): I thank the house for facilitating me speaking at this stage. Childhood and youth are two of the few experiences that all of us in this chamber share. We have all been children. Some of us have been blessed with the privilege of raising children and grandchildren. We need to remember the sense of wonder and the power of imagination. We need to remember the excitement of a world of possibilities. As families, as communities and as governments, we need to do everything we can to support children to develop so that they can grasp life's opportunities.

This bill is a step towards strengthening the public sector and community contribution to the development of children and young people across a range of domains: health, education, training and so on. Much of the debate on the bill, I expect, will be focused on to what extent the commissioner should have functions and roles, but I think it is important for us not to lose sight of the worthy broader objective that we see children and young people as whole people who deserve the full support of the whole community in their holistic development.

As I said, do we remember the sense of wonder of being a child and a young person? Do we remember the power of imagination and the excitement of possibilities? For many of us, they are becoming increasingly distant memories. Fundamentally, we have all left childhood behind, and we have all made the transition to adulthood. Do we also remember the vulnerability that children and young people experience? Do we remember the trauma of breaches of trust, and do we remember the harm that can be done?

All too often adults look down on children. We decide what is best for children and young people, often beyond the time when they have the capacity to make their own way. The dark reality is that individually and collectively adults often cause harm to children; we let their interests take second place to those of the adult world and adult institutions. Our institutions, even institutions created to care for children and young people, have often brought them harm.

I am sure that all members of this house are committed to the positive affirmation of child development and wellbeing, and the Liberal Party certainly associates itself with the aspirations of the bill in terms of supporting children to develop. However, we do consider that the government is recklessly blind to acting to minimise the risk of harm to children by putting in place an advocate who can stand up for children. The government did not want to have a commissioner for children and young people, and I am concerned that this is the commissioner you have when you do not want to have a commissioner. It is too timid.

If we have recognised the failure to properly respond to the abuse in the western suburbs school, if we have seen the failure of the system to learn the lessons from the Chloe Valentine case, if we have seen the failure of Families SA to maintain appropriate screening of people working with children, surely we know that children and young people of all members of our community need a voice—a strong voice—to advocate for their interests against the strong interests of the adult world. I indicate that the Liberal team in the Legislative Council will support the Child Development and Wellbeing Bill, but only with significant amendments to ensure that children and young people get such an advocate—an independent, effective children's commissioner.

I think it is apt that this debate is the first debate on the first day since the Labor government renewed its efforts to downgrade the Legislative Council. The government shows itself to be trenchantly slow in understanding the modern reality of this place. This council is not merely a house of review rooted in the 19th century. It reformed in 1973, and it legitimately asserts itself as a fully fledged member of the parliament, bringing its own broader mandate. This council provides a less institutional perspective; it looks at issues one step removed from the defensive stance of a house controlled by the government.

Our position (that being the position of this council) on this bill is not a thought bubble of the upper house's imagination. An independent, effective children's commissioner has been consistently demanded by the community and the sector; an independent, effective children's commissioner was endorsed by a majority of South Australians as part of the Liberal team policy set at the last election; an independent, effective children's commissioner is supported overwhelmingly by the non-government members of this place who, collectively, drew two-thirds of the vote in this council at the last election.

This council does not merely proofread bureaucratic drafts. We assert the right to apply the wisdom of community consultation and our two popular mandates. Every child has the right to a safe, loving environment in which to grow. Families, government and the wider community need to work together to ensure that children and young people are given the best possible chance in life. We have before us a key opportunity to improve the child development and protection framework in South Australia by establishing a commissioner for children and young people. As I said, it is a fulfilment of a Liberal Party policy commitment of the 2014 election, which stated:

We will move quickly to appoint a Commissioner for Children and Young People with investigative powers, to escalate child protection to the top of a Marshall Government agenda and advocate for the rights of all children and young people in South Australia.

In our view, the commissioner will help our state ensure that child development is systematically and effectively pursued across government, in particular in health, education and family services. We need a champion for the rights of children and young people, an advocate they are able to engage with and who will focus on their development and wellbeing alone.

The appointment of a commissioner is long overdue. The Hon. Robyn Layton QC first recommended that the Labor government appoint a commissioner for children and young people in her report, the state plan for child protection, in 2003. Over 10 years later, despite numerous platitudes, the Weatherill Labor government is yet to establish a commissioner for children and young people. For a good portion of this time, Premier Weatherill was the relevant minister who failed to deliver. South Australia was the only state in Australia that did not have a commissioner for children and young people.

In 2012 the Labor government released a discussion paper on child development legislation proposing an advisory council and formal community networks. Neither the discussion paper nor a draft bill released in July 2013 provided for a commissioner. When the Debelle report was released in 2013, the government said that it would establish a commissioner for children and young people and that it would do so by the end of 2013. That commitment was not met.

The consultation response was so strong in favour of a commissioner that the government at the last moment committed to having one, but still it was not what the community was wanting. The community strongly said that they wanted the commissioner to have investigative powers. The government did not fulfil its obligation to introduce a bill by the end of 2013, nor did it act when the parliament was formed after the general election earlier this year. So, on 21 May 2014, I introduced a bill into this place, the Commissioner for Children and Young People Bill 2014. In that sense, it was the first bill that had actually been tabled in the parliament which sought to establish such a role.

I have acknowledged in the past that the bill drew heavily on the government's last draft bill, which was dated 3 October 2013, but it focused on the children's commissioner proposal. We, if you like, were agnostic about the other elements. As particularly the Law Society argued, there would be value in having a freestanding piece of legislation dealing with the commissioner for children and young people. We appreciate that perspective. We put our private member's bill in with that focus. I do not regard it as essential, so we will obviously be moving amendments to this bill to establish the role as part of the bill.

The children's commissioner bill was passed by the Legislative Council on 6 August 2014, and I thank the crossbench members of the council who supported the bill so strongly on that day and since. My leader introduced the bill into the other place on 25 September. The government, supported by the member for Frome (the Hon. Geoff Brock) and the member for Waite (the Hon. Martin Hamilton-Smith) defeated the bill on 16 October 2014.

The bill before the council today started its journey in the other place parallel to the Liberal commissioner bill. The government bill was tabled by minister Rankine on 19 June 2014. For those who remember the day, it was of course budget day 2014. When a government tables a bill at the tail end of budget day, it is no sign of a government proud of its proposal.

As a result of the long gestation period of the proposal for a commissioner, the consultation on the government bill, the consideration of the Liberal commissioner bill and already the consideration of this bill in the other place, I think it would be fair to say that this is one of the most considered pieces of legislation that we have turned our mind to, so I hope that an informed debate can lead to a quality debate.

I would like to turn now to highlight the key points in which, in my view, Labor's proposed commissioner is inadequate and the flaws, if you like, that the opposition intends to suggest be addressed by way of amendment.

The first point is that of independence. The commissioner under this bill, in our view, will not be truly independent, and the commissioner needs to be independent to be able to fully safeguard the rights and best interests of children and young people. As the Hon. Tammy Franks has put it, their commissioner would be acting (in that context she is referring to the Labor proposal) 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.

I would like to highlight three aspects of independence. The first is independence in appointment. The children's commissioner bill supported by this chamber and defeated by the other place provided for the independence of the commissioner through a transparent appointment process managed by a selection panel. The Liberals continue to support such a process, and amendments I have filed this afternoon reflect that. Secondly, we believe it is important that the commissioner have independence in their operation. In particular, we will have amendments that propose that the commissioner be able to engage their own staff.

I understand that the government is reconsidering the provision in the bill in relation to the minister's power to direct, and I would certainly encourage them to continue to consider it, because we do not believe it is appropriate that the minister have any power of direction over the commissioner, no matter how limited. In that regard I note that the guardian for children and young people bill did not provide a similar power of direction in relation to the guardian.

In terms of independence, I believe a third aspect that needs to be strengthened in this bill is independence in terms of, if you like, the security of the post, the tenure of the position. The government bill proposes that the commissioner be able to be dismissed by the government alone. It is the opposition's view (and it has been the view of this council in relation to the commissioner private member's bill) that the commissioner should only be able to be removed by a motion supported by both houses of parliament.

Another key contrast between the Liberal proposal reflected in the amendments I have filed and the government bill is in terms of accountability. The amendments require accountability of the commissioner to the community in that they require the commissioner to develop a community engagement plan and to particularly consult with children and young people but also parents, family carers, relevant peak bodies and non-government organisations. It is not proposed that a plan, a prescribed form of consultation, be laid down in the legislation, but there were certainly strong views, particularly from the child development sector, that consultation with children and young people about services and policies that affect them was vital.

So we propose that the requirement be put on the commissioner to develop a community engagement plan within their functions and that the commissioner be required to report against the plan in the annual report. In that sense the commissioner is accountable to the community in terms of what constitutes an appropriate level of consultation with children and young people and related parties in terms of the development of the community engagement plan but also that they are accountable to the community in terms of how they have implemented that plan.

Secondly, with the amendments I have filed today the commissioner would be accountable to the parliament. They are required to produce an annual report, including some specified information. I acknowledge the point the government has made in this debate as it has progressed that there are general requirements for annual reports in the public sector, but one of the key points I would make is that the specificity of additional information that my amendments foreshadow and which were put by my colleague the member for Adelaide, Rachel Sanderson, in the other place, go beyond merely requiring that a report be tabled but require that they provide specified information.

Accountability is also built into the amendments in the form of accountability of the government to the parliament in response to the commissioner's reports. If my memory does not fail me, I seem to recall that this element of accountability was proposed by the Greens. I believe the Hon. Tammy Franks, if you like, added edits of the conversation. I am certainly of the view that if the commissioner is to truly afford 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 by a figurehead commissioner, it is important that the government responds.

The Hon. Tammy Franks put that case strongly, and it is essential that government ministers respond to reports on issues of concern and the action they have taken. It is a mode we have in relation to other key positions, such as the Coroner and, considering that, particularly in the enhanced form of the commissioner proposed by the amendments, I believe it is doubly important that the government responds. Recent disturbing child protection incidents in South Australia highlight that the risk to children and young people increases when the government fails to put in place appropriate processes to ensure transparency and responsiveness in the protection of children and young people.

The third, and undoubtedly the most substantial difference between this bill and the Liberal model, is the extent of investigative powers. There had been a range of child protection failures under this government and inevitably this bill is being considered in the context of these cases. One such case was the case of Chloe Valentine. Chloe was a four-year-old child in the custody of her mother and her partner who proved to be criminally irresponsible.

The Guardian for Children and Young People could not look at the case because the child was not in care. She was certainly at grave risk, but she was not in care. The Families SA adverse outcomes events committee and the Child Death and Serious Injury Review Committee are both, fundamentally, desk-top reviews of departmental documents, so much so that the Families SA adverse outcomes events committee was able to complete its work without even interviewing the family.

In relation to the Child Death and Serious Injury Review Committee, of course—and appropriately—they will not be able to consider the matter until after the Coroner's review is completed. Again that highlights, I believe, the problems with our processes where insufficient action is being taken to learn the early lessons that could be learnt to try and reduce the risk as soon as possible. Thankfully, the Coroner has seen fit to undertake an inquest, and that is underway at the moment. But for two years after Chloe's death her family was not engaged to seek their perspectives on the case.

I stress—and I am sure I need to stress this time and time again as this bill progresses—the commissioner, as is envisaged by the Liberal amendments, will not replace these bodies, but with a full investigative power and a broader scope, we believe the commissioner will be able to complement the established institutions and consider the value of an investigation and the particular circumstances of each case.

The family of Chloe Valentine strongly supports a commissioner with investigative powers. They appreciate that a commissioner will not investigate Chloe's situation, because it has already been the subject of a Coroner's inquiry, but they are very supportive of steps that can be taken to provide children in the future 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.

In terms of investigative powers, I thought it would be useful to pause and consider the arguments put forward by the Law Society and by the Australian Medical Association. The letter from the Law Society is dated 23 July 2014 and was a letter commenting on the Commissioner for Children and Young People Bill 2014, the bill that has already passed this place but was defeated in the other place. It reviews the comments on the section that dealt with investigations and made the following comments:

The ability to assist individual children can be important for a number of reasons.

it enables the Commissioner to ensure that the rights of children are honoured individually;

it enables the Commissioner to gain vital knowledge about what policies and legislation are not working on the ground; and

it enables the Commissioner to prioritise his or her policy work and where the Commissioner should direct his or her reviews.

In addition, authorities will tend to be more cooperative and responsive to an approach from the Commissioner's office in these circumstances rather than if parents and children had been required to go through a traditional complaint system. From a resources perspective the process will often involve the Commissioner's office getting other bodies to do the job of review and investigation with the Commissioner's office overseeing the process which is a far better use of resources.

If the complaint does not fall within an established statutory complaint system and raises a broader issue relating to children's rights, then the Commissioner can actively investigate the complaint. This approach would mean that from the perspective of the child or young person, the Commissioner remains their point of contact if they are unsure how to progress their complaint.

Similarly the Australian Medical Association, in a letter to the department dated 1 August 2014 in relation to the government's bill, said the following:

We note also that in Part 4 section 16, there appears to be an emphasis on a 'monitoring role' for the Commissioner rather than an investigatory function. We share the view of the Law Society that the Commissioner should have 'the power to conduct inquiries or reviews into matters involving breaches of children's rights.' Any fettering of such investigative powers by ministerial directive or influence are unacceptable to the AMA (SA).

Concern was raised by us previously about the potential that time invested in dealing with complaints (if this is part of the role) could take significant resources, which could detract from important non-complaints matters. While we believe the Commissioner should have discretionary investigatory powers we believe that it is appropriate for the Commissioner to prioritise selectively to improve the lot of children and young people.

Later in the letter it states:

We would hold that the role of the Commissioner should not be a generic complaints service, nor an external body called upon to review the actions or omissions of a government department in a specific matter. We would contend that rather, the Commissioner needs freedom to investigate issues either through individual case studies or, better still, a range of cases. We would be concerned if a complaints element were to prejudice other aspects of the Commissioner's role.

The AMA's letter foreshadows an element which I will address in a moment which is the issue of the Labor Party's criticism of this as a duplicating complaints mechanism. I will turn to those remarks shortly.

In terms of government criticisms of the bill, the first one that I would like to address is the claim that the Liberal amendments are not reflective of the consultation. That is clearly not the case. The Liberal bill and a number of the amendments filed on this bill are based on submissions that were made in the consultation of the government's own consultation process in 2013.

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 dated 3 October 2013 had a commissioner but it did not have investigative powers, and a recurrent theme in the response was that the community wanted the commissioner to have investigative powers. The community determination for a full-blooded commissioner with investigative powers has been supported by both the Liberal members and cross-bench members of this place.

Further, in the House of Assembly the Labor Party criticised the Liberals for focusing on the children's commissioner only and not supporting the broader child development and wellbeing aspects of the legislation. This is a straw man. We did not in the other place and we have not in this place proposed any amendments in relation to the other elements of the bill. Our filed amendments focus on the role of the children's commissioner because that is where we see the deficiency.

I do not underestimate Labor's capacity to bring to the model the dead hand of bureaucracy; but, contrary to Labor's misrepresentations, we do not oppose it, and we will hold them accountable to make sure that the outcomes framework and proposed council actually have a positive contribution to the wellbeing of children and young people.

Another aspect of the government's criticisms of our proposal is that we are proposing a 'mass complaints agency', if I can characterise their criticism in that regard. They assert that the focus on any individual complaints and grievances is contrary to Layton. The minister has claimed:

The Layton report, in recommending a South Australian commissioner for children and young people, specifically excluded the functions of deciding individual complaints and grievances from the functions of the commissioner.

My response is: so do our amendments. In light of the House of Assembly debate, the Liberal opposition has taken the opportunity to underscore its determination that this commissioner would not be a mass complaints agency. As I have said to government representatives in the past, and has been stated in the house in the debate, we see this role as a systems advocate with investigative powers. It is first and foremost a systems advocate, and it is not intended that the person have a general complaints function.

The model, as reflected in the private member's bill and the amendments moved in the other place, specifically said that the commissioner may investigate matters and had other elements to ensure that the commissioner was able to focus on systems issues. Our revised amendments, which I filed in this place this afternoon, underscore that doubly. For that matter, I would indicate to the government that we are more than happy to talk to the government to make sure that that systems advocate focus is retained.

We do not want to convert the children's commissioner from a systems advocate to an ombudsman. In fact, the Hon. Robert Brokenshire did me the service of highlighting his disappointment that it is not an ombudsman. In that sense, rare as it may be, I am standing with the government against the Hon. Robert Brokenshire in saying that the Liberal Party does not support a general ombudsman role in relation to the children's commissioner. As I said, we see this role as a systems advocate, but we believe that a systems advocate can be enhanced by having access to investigative powers.

In particular, the filters that the commissioner would apply under our amendments is that the commissioner would have the discretion to investigate a matter, the matter must be a matter of particular significance to children and young people, and it needs to be in the public interest. Even if the government was to believe us that this is not intended to be a general complaints body, the government also asserts, in the debate on this bill, that a systems advocate does not need investigative powers. To that, I would just refer the government back to the Guardian for Children and Young People. The Guardian for Children and Young People is a systems advocate with a focus on children and young people in care, and that position does have investigative powers. To support that point, I would quote the minister. The minister said:

We have introduced many agencies to protect children. The Guardian for Children and Young People, for example, was not in existence when we came into power.

She goes on later in the statement to say:

These are all bodies that have a role in investigating individual complaints, if you like.

And I agree. The guardian for children and young people, as a systems advocate with investigative powers, we believe is appropriate.

Another example of the systems advocate needing investigative powers is the Child Protection Systems Royal Commission. The commissioner obviously is operating under the Royal Commissions Act with all the powers that that entails. The commissioner issued a press release on 21 October 2014 entitled 'Child Protection Systems Royal Commission underway'. The commissioner kindly informed us about the setting up of her commission and the work that she was going to do. She mentioned:

The Royal Commission has set a schedule for its work, which will include a series of hearings where evidence will be taken from relevant people. It is anticipated at this stage that the hearings will be in private, with a power to hold public hearings in special circumstances. Individual cases will not be investigated as part of the Royal Commission's work, except where they highlight systemic problems relevant to the Terms of Reference.

That is exactly the Liberal Party's position on this children's commissioner. We believe that the children's commissioner, like the royal commissioner into the child protection systems, should have the capacity and the freedom to look at individual cases to the extent that they highlight systemic problems relevant to their functions.

It is a shame that probably the majority of my speech is going to be a response to criticisms from the government, but that is the extent of the misinformation of the government's case, so I will persist. The government claims that the Liberal proposal is out of step with practices in other states. In the other place the minister has said:

The Leader of the Opposition… mentioned that commissioners in other states have been granted individual investigative powers. What he failed to mention was that where these powers do exist they are in the process of being removed. No jurisdiction in Australia will exercise individual investigative powers for their commissioners or commissions. Queensland will be the last jurisdiction to remove these functions later this year.

My understanding is that in the ACT the commissioner can investigate and decide on complaints. In the Northern Territory they can investigate complaints relating to vulnerable children and have their own initiative investigative powers. Tasmania can investigate matters when requested by the minister, but perhaps the most relevant response to the minister's assertion is to refer to the case of Western Australia.

The government in Western Australia on 20 August 2014 released a review of the Commissioner for Children and Young People Act 2006, obviously a Western Australian act. Partly that review was in response to the Blaxell inquiry into St Andrew's Hostel special inquiry. That inquiry suggested that the commissioner take on a broad complaints function. In response, the review made the following recommendations:

Recommendation 12:

The Commissioner should be given appropriate powers under the Act to provide a child abuse complaints support function that consists of:

education and outreach programs for children and young people about how to disclose any child abuse that occurs while they are in the care of a government agency or service provider;

receiving complaints from children and young people, or adults acting in good faith on their behalf, about abuse alleged to have occurred in a government agency or service provider;

referring such complaints to the relevant investigative authority/s;

providing information and referrals to children and young people in relation to the support services available for victims of child abuse and their families; and

monitoring the way in which government agencies deal with complaints of child abuse referred by the Commissioner or otherwise received by them.

The Commissioner should not have a role in investigating the substance of individual complaints that are received.

Recommendation 13:

That the Commissioner's jurisdiction in undertaking the child abuse complaints support function extend to 'government agencies' and 'service providers' as those terms are currently defined in the Act.

Recommendation 14:

That the Commissioner's jurisdiction in providing the complaints support function supplement and not duplicate the role of other relevant agencies in receiving and referring disclosures of alleged physical, sexual, emotional or psychological abuse and neglect.

Recommendation 15:

That the act be amended to provide a specific power for the Commissioner to refer complaints received in the course of performing his or her function to the relevant investigative or…government agency.

The Western Australian commissioner currently has an investigative function. An independent inquiry recommended that the commissioner become more involved in the complaints function, and a government response to that review suggests a less involved role for the commissioner. That report is currently out for three months' consultation, which will finish in August. It will then be for the Parliament of Western Australia to consider how it believes the relevant bill should be amended if it needs to be amended at all.

But our minister has come into this parliament and told us, as she did in the other place, that no jurisdiction will exercise investigative powers for their commission or commissions and that Queensland will be the last jurisdiction to remove these functions later this year, when in fact the ACT, Northern Territory, Tasmania and Western Australia currently have those functions. In terms of Western Australia's review, it is currently still unclear what direction Western Australia is going to take and yet the minister, together with a range of her backbench colleagues, baldly asserts that we are somehow out of step with the rest of the nation.

The fact of the matter is that this government has been recalcitrant in accepting the recommendation of Justice Layton in 2003 to establish a commissioner. They continue to resist it and, in that regard, they are willing to spin facts how they like. I note also that the National Children's Commissioner saw fit to make positive comments about the government bill. It was interpreted by some as a criticism of my bill, but I was assured by the commissioner that she has not seen my bill. In that regard I do note that the Australian Human Rights Commission, of which the National Children's Commissioner is a part, does have investigatory powers.

In relation to the relevance of investigatory powers, I do find the government's position from time to time confusing because, whilst it is generally the position that they assert that a systems advocate does not need investigative powers, from time to time we have the minister asserting that the commissioner can undertake investigations. If that is the case and if the minister is truly of the view that individual cases can be investigated rather than just considered as part of a systems review, then why is she not willing to sit down and talk about the content and form of those investigative powers?

It is the Liberal Party's view that, more than any other state, we need a strong commissioner. In spite of significant attention to child protection and development over the last 10 years, which the government likes to recite incessantly, the government has to acknowledge that we are encountering repeated major issues with our child protection and development system. We believe, in that context, it is likely to be even more important that we have a commissioner with investigative powers, not a commissioner with fewer powers.

Another criticism that the government makes in relation to our proposal is in terms of cost. The government likes to talk about the cost of the Queensland commissioner being at $42 million for the 2012-13 financial year but, in the other place, the minister likened the opposition model to the Western Australian model. The Western Australian Commissioner for Children and Young People, which does have investigative powers, in 2013 showed that their budget was $3 million.

Why the disparity? The disparity is because the Commissioner for Children and Young People in Queensland is a significantly enhanced model compared with that of other states and territories. My understanding is that they run the community visitors scheme, they are involved in police checks and they also have a broader complaints function. To the extent to which it is possible to compare models and proposed models, I would think there would be reason to believe that the model proposed in the amendments that I have filed today would take us much closer to $3 million rather than $42 million.

The government also asserts that our amendments would duplicate and undermine the functions and expertise of other bodies, particularly the police force; that is not the case. The amendments specifically prohibit the commissioner from investigating a matter where somebody may have committed a criminal offence. We specifically require the commissioner to respect police investigations underway, and there are significant provisions for matters to be referred.

I acknowledge the concerns of stakeholders, particularly YACSA, the Law Society and the AMA, that for a commissioner to be effective they need not just functions and powers, they also need resources. We would expect that the government would appropriately resource the commissioner when it is appointed.

The member for Morialta, John Gardner, expressed his concern in the other place in relation to some comments made by the Premier. He said the Premier had said on television that, if the opposition's bill or amendments are preferred by the upper house, there will be no children's commissioner. The member noted that that flies in the face of what the Premier has been saying in recent times about everything being on the table in the context of the establishment of the royal commission. The Premier has repeatedly said that he is open to a whole range of options, particularly through the process of the royal commission.

If everything is on the table to improve the child protection system in South Australia, then how can he say that the opposition's amendments to a government bill are completely unacceptable, and threaten to pull the whole proposal? His government has stood in the way of a children's commissioner now for over 11 years. The nature and form is open to debate, but for an arrogant government, 12 years in office, to say, 'It is either our proposal or no proposal,' I believe is not an appropriate approach. It is certainly not what the South Australian community expects of a parliament and an executive which is entrusted with doing what it can to improve the support for children and young people.

With those remarks, I indicate that I look forward to the committee stages of the bill, whether they are later this week or next. That will give us an opportunity to look in more detail at some of the amendments that the opposition is putting forward.

Debate adjourned on motion of Hon. J.M. Gazzola.

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