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Legislative Council - Fifty-Third Parliament, First Session (53-1)
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Child Development and Wellbeing Bill

Second Reading

Adjourned debate on second reading.

(Continued from 11 November 2014.)

The Hon. T.A. FRANKS (15:32): I rise on behalf of the Greens today to indicate that we support progress and a second reading vote on this bill today, but also indicate that we intend to support the Liberal amendments being put forward to this bill. Should those amendments not be successful we would have grave reservations about the particular piece of legislation being put forward by the government as being, in effect, a children's commissioner who the government would like us to see but not hear. I will refer avid readers of Hansard to my previous comments on—

The Hon. S.G. Wade: My mother!

The Hon. T.A. FRANKS: Including the Hon. Mr Wade's mother—the topic of a children's commissioner. As members are well aware, we have previously seen a private member's bill most recently debated in this place which went to the heart of those issues.

The Greens have long supported a commissioner for children and young people. We are deeply committed to upholding human rights and, indeed, the Convention on the Rights of the Child. We are very committed to community consultation and having a diversity of voices in our community represented, and children and young people should be heard and seen. They should have had their voices heard after the Layton report in 2003.

This was a 699-page report done through extensive consultation and which made a number of recommendations. It had, as its number one recommendation, a commissioner for children and young people. That number one recommendation of the Layton report in 2003 should have been act upon by the Rann/Weatherill government in a much more timely framework. Had that happened, I would have far fewer reservations about the real commitment to ensuring processes of real human rights and real transparency with regard to the rights of children and young people.

It was remarked, in the Layton report, that while the report recommended a commissioner for children and young persons—and I note that that original recommendation of, as I said, that 699-page report was the number one recommendation—that office would consist of a commissioner and an Indigenous deputy commissioner, it would report directly to parliament, and its purpose would be to be the voice of and advocate for the child, to promote the UN Convention on the Rights of the Child in all areas of community life, to monitor the decisions of government and non-government agencies in terms of their inclusiveness in considering the rights and interests of children and young people, and research in areas of child interest. It was envisaged, in that report, that staffing would actually contain two commissioners (not the one we are discussing here) and six staff.

There has been a lot of argy-bargy on this particular topic, and it has been said that the Layton report never wanted a children's commissioner to have the extensive powers to investigate that are proposed in the previous Liberal private member's bill and under the Liberal amendments. I note that those powers are limited to avoid duplications.

However, when one goes beyond recommendation No. 1 of the Layton report—which does indeed have that proviso, and suggests that the office of the commissioner for children and young persons be created—it does, back in 2003, suggest it be modelled on the Queensland model. However, it also recommends the additional Indigenous position and that a joint parliamentary committee on child protection be created and statutorily mandated in a way similar to section 27 of the Commission for Children and Young People Act 1998 in New South Wales—something we have yet to see in this parliament, something we are still waiting for. It says:

A Commissioner is needed to give the voice of the child. This model includes the best features of the Commissions in Queensland and New South Wales. It specifically does not include the function of deciding complaints and grievances. It is part of an overall framework of protection of the interest of children and young people. It incorporates recognition of the special concerns of Aboriginal children. It also incorporates commitment by all political parties to protecting children.

That parliamentary vision has not yet been realised, and I look forward to perhaps better government support for the current select committee that has been set up by private members in this chamber. Perhaps they could also help implement recommendation No. 1 of the Layton report. However, recommendation No. 2 of the Layton report goes on to say:

That a complaints and grievance process relating to administrative actions decisions (but excluding services) include review by the Ombudsman.

Indeed, it looked to dedicated functions of the Ombudsman with regard to child protection being established. Recommendation No. 3 is:

That a special unit be created within the proposed office of the Health and Community Services Ombudsman, to investigate complaints and grievances in relation to services concerning children and young persons.

It envisaged that the special and complex issues relating to child protection require a specially trained unit within the jurisdiction of the Health and Community Services Ombudsman. So recommendation No. 1 always envisaged that there would be additional pathways for the investigation of complaints.

However, the Liberal amendments to this government bill and the original private member's bill that we discussed—and indeed passed through this place—envisaged that should there be a duplication, should there be another agency (whether that be SAPOL or one of the many government agencies that are available to investigate a matter or complaint and seek to address grievances), then that would be the appropriate place. It would only be where there was no other pathway to go down that we would see the children and young persons commissioner come into play.

You can perhaps say that that is not necessary but I defy any member in this place who actually looks at their emails or reads Facebook pages or answers their phone to realistically assure the community of South Australia that every single grievance has a place where it can be resolved in this state. And with regard to children and young people, and indeed child protection, certainly I think that no-one could maintain that we are at best practice in South Australia on those issues.

In the briefing that I received from the minister's office on this bill, I requested information on what the YACSA position was with regard to the current format the government bill is presented in compared to the previous private members bill that was debated in this place in recent months. I have yet to receive that from the minister's office. I await it. I would certainly like to see that tabled in this place.

I do have, as other members would have, the Law Society's response to this particular bill. I note that the Law Society has many concerns. It notes its previous submissions to the government. It also goes on to say:

…we note that the major concerns outlined in our previous submissions have not been addressed. A summary of our concerns are set out below.

It goes on to say:

The role as defined lacks independence from Government, and the resources required to guarantee that independence. To be effective, the Commissioner must be independent, and this should be expressly provided for in s 13 of the Bill.

Further it says:

The role of the Commissioner remains subsumed into the general functions and objects of the Child Development legislation. The role should be more than simply a monitor of the Government's child development agenda.

Further it notes:

…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.

As I say, these significant failings of the government model are addressed by amendments to be moved to this bill. We are happy that the Labor Rann/Weatherill government has finally seen the sense to implement recommendation 1 of the Layton report from 2003, but we are very happy to fix your flawed efforts to try to make amends on your previous failings to address, and indeed implement and introduce, a commissioner. The Law Society advice on this bill goes on to say:

This leaves the Commissioner with little to no power or authority. This will render the role ineffective.

Reading that, I cannot imagine why anyone would create a position that the Law Society considers would be rendered ineffective, with all of the expense that that entails, to indeed lift people's hopes up to have them dashed when we want this children and young persons commissioner to actually improve the lives of South Australian children and young people. The Law Society advice on this bill goes on to say:

The functions and powers of the Commissioner under the Bill are at odds with the objects of the Bill.

The Law Society also notes that there are powers under the new bill and that:

…the Bill gives a new power to the Minister to exempt a person or body from giving information to the Commissioner under s 19(4).

It specifically notes:

This will have little impact on changing the culture of the Department for Education and is unlikely to encourage the disclosure of information. This seems at odds with the comments of Minister Rankine when in response to the Review of the Education Department, she said, 'We need to have a system that gets information out to the public quickly. We need to make sure that it's accurate and we need to have good communications from central office out into our schools and preschools as well.'

The Law Society goes on to comment on that particular aspect of the bill:

In our view, the exemption under s 19(4) may in fact encourage a culture of nondisclosure.

The Law Society response on this bill goes on to say:

The method of appointing the Commissioner has not changed and accordingly our concern remains that the appointment is not transparent…The bill does not require the Commissioner to provide an annual report. This does nothing to enhance the accountability and transparency of the Commissioner.

While I understand that some slight concessions have been made by the government to improve the original model, the Liberal amendments are far superior in the view of the Greens, and their intentions are far more to be trusted if you consider the time frame that it has taken this government from the report in 2003 to finally presenting legislation for a children and young people's commissioner to this place. It is 2014.

We query whether the government is serious when it comes to defending and promoting the human rights of children and young people in this state, and we certainly query whether the government is serious when it comes to having an effective children's commissioner, but what we will say is that we are so happy that you have finally brought it here as a government piece of legislation so that we get the time to debate it, that it is actually finally being debated properly in the House of Assembly, and we are very happy to improve your flawed work, because we think we can make it a hell of a lot better, and we intend to do so in the committee stage of this process.

The Hon. I.K. Hunter interjecting:

The Hon. T.A. FRANKS: I think the minister interjects with 'Well, you've never been able to do it before with any bill.' I think he might want to read the Hansard to see that, time and again, even in my short time here, the government has realised the error of its ways, where it has not consulted properly, whereas we in the Legislative Council have picked up errors in government legislation.

The Hon. I.K. Hunter: Talk about hubris!

The Hon. T.A. FRANKS: The minister also interjects with, 'Talk about hubris!' I would like to talk about whether or not this government is really committed to the best interests of children and young people if it cannot even present a bill to this place which has the broad support of the sector and which takes on board the broad consultations that were undertaken, given that it has such serious concerns raised with it by the Law Society.

I certainly look forward to the committee stage of this debate. I am heartened that at least we look like we will have the potential of a children and young persons' commissioner in this state. I sincerely hope that the government will be prepared to accept the improvements that I hope the Legislative Council will make to this bill. With that, I support the second reading.

The Hon. K.L. VINCENT (15:47): I speak today on behalf of Dignity for Disability on the Child Development and Wellbeing Bill 2014. I do not think I need to explain to anyone in this chamber, nor any of the stakeholders involved in the drafting of the bill before us, that the issue of a South Australian children's commissioner has been one of the most fiercely debated and most talked about issues in the state parliament for quite some time.

I know, as other members have pointed out in their contributions, that this commitment has been a long time coming and that some of the delays relate to the fact that, while there is no disagreement that South Australia should have a children's commissioner, there are very differing opinions as to the best model for such a role.

Whatever the final model—and, frankly, as we have waited over a decade—I would prefer to get it right than get it done quickly. It is important that we are not merely establishing a figurehead or toothless tiger. Complaints processes are not worth anything if people do not know what channels are open to them and if they lose faith in the ability of the system to respond to its failure, not merely to make empty statements about what should have happened in a particular circumstance once it has occurred.

I commend the structure of our SA Ombudsman as a public office that is widely known and well respected, and feel that this model is one that already has been invented and works quite well. Why we have seen a need to branch out into streams of commissioners is unclear to me, and perhaps in future it will become fashionable to reunite officers with similar functions under one roof.

I understand that for many people this debate has been quite difficult, both professionally and personally. After all, those who care about the wellbeing and future of our state's children should feel very passionate about the issue: this is precisely what makes them the right people for their jobs.

I thank all of those people who have taken the time to brief my office on the issue generally and on the individual merits of both the government and opposition bills, in particular, the Council for the Care of Children, the Youth Affairs Council of South Australia (YACSA), the Guardian for Children and Young People, the minister's office, as well as a range of other individuals and legal bodies interested in the issue. This information has been invaluable in assisting Dignity for Disability to form the position I am now able to put on the record.

This has not been an easy decision to reach, as both bills have their merits, and I very much appreciate the time and interest that both government and opposition members have put into their respective proposals. Having said that, I can now indicate that, after careful and lengthy consideration, Dignity for Disability has opted to support the government's children's commissioner bill, as significantly amended by the opposition.

I think it is fair to say that one of the most contentious aspects of legislating for a children's commissioner has been the debate around whether the commissioner should have powers to investigate individual cases involving the welfare of children and young people, or make systemic observations and recommendations. It is difficult to make a choice between the two, because they are both vital in different ways.

Systemic advocacy enables us to recognise trends in the sector and common gaps in service delivery; however, I also understand that many in the community feel that greater intervention in the case of a child like Chloe Valentine as an individual, for example, may have prevented or be able to prevent great tragedy in the future.

This is why we are particularly pleased to see that the Liberal opposition has reached something of a compromise in one of its amendments which, if passed, would allow the commissioner to investigate both systemic issues and individual cases where it can be proved that to do so would be in the public interest and that the matters in that case have implications for other children and young people in similar circumstances. I see this as a very worthwhile compromise.

For the sake of clarity, I will put on the record that this amendment does not give the commissioner the power to investigate every individual case involving a child or young person: strictly those where the commissioner can justify that it would be in the public interest to do so and where there is a strong indication that a particular matter may have implications for other children and young people.

While I understand that some in the community may like to see a model where the children's commissioner has full powers to investigate every single individual case that might come before them, I believe it is preferable to have a more focused approach which is less likely to be influenced by particular circumstances and/or emotions of particular individuals or families. I congratulate the opposition, and in particular the Hon. Stephen Wade, on reaching this sensible amendment, and I hope that it will receive the support of the parliament so as to enable us to move beyond that particular aspect of the debate.

I believe that this compromise amendment, if I may call it that, serves as a reminder to us all about the need for collaboration and cooperation in this place in order to achieve the best outcomes for the people of this state. I believe that, as members of parliament, we should not be focusing on whether our particular bill passes or whether our name will be mentioned in the media in a particular story, but rather on how we can work together to effect positive change for South Australia.

Dignity for Disability is also pleased that giving the children’s commissioner a systemic advocacy role will give the commissioner a broader scope for their work. We must provide protection to children which is broader than merely protecting them from abuse and neglect, vital though this is. We must also work to protect their right to an education—a quality, inclusive education—to health services, and all other opportunities that they need to flourish. I think this kind of cross-departmental systemic advocacy could be particularly beneficial to children and young people living with disability.

It is no secret that students with disability, for example, often miss out on the same educational opportunities offered to their peers without disability. However, if the children's commissioner is going to investigate the education of students with disabilities, it is likely it will also be necessary to look at things like the transportation of students with disability to and from school or the way the presence of or lack of disability related supports impact upon their education.

For this reason it is pleasing to see that the commissioner has been granted the power to make recommendations requiring the state authorities to change their practices, policies or procedures to achieve specified outcomes, as well as conducting or participating in specified educational programs and to undertake other specified action of their choosing. I hope that these powers will give the commissioner the freedom to make honest and fearless recommendations for the good of all people in this state.

However, having said all this and knowing the need for a commissioner, I feel that it is important to put on the record that parliament, especially the Labor government, cannot now rest on its laurels having had this debate and hopefully at its end appoint a commissioner for children and young people. Yes, the commissioner is a great step forward in the protection of the rights of children and young people; however, it will not automatically fix the problems that have existed for a long time in the area of child development and welfare, many problems that I believe the government could fix without the assistance of a commissioner.

The under resourcing of the Child Abuse Report Line is one glaring example, and so too is the fact that documentation pertaining to the alleged neglect and abuse of children has been misplaced or ignored. We must ensure that even with a fully resourced and accountable children's commissioner, the government continues its duty to examine and improve processes. With those words, I commend the bill to the chamber.

The Hon. G.A. KANDELAARS (15:56): I rise to support the Child Development and Wellbeing Bill. In particular I would like to emphasise the importance of a commissioner with appropriate powers to effect systemic change and promote the interests of children and young people. The functions of the commissioner proposed by the government will have the authority to investigate systemic issues in a proactive way in order to identify where improvements can be made and showcase best practice.

The bill does not specifically exclude interviewing or looking into individual cases in the context of identifying systemic issues. I want to emphasise that the review of functions over the past two years resulted in no Australian jurisdiction exercising full individual investigative powers for children's commissioners. These include recent reviews in New South Wales, Western Australia, Victoria, the Northern Territory and Queensland. The exclusion of full individual investigative functions is also consistent with the recommendations of the South Australian review into child protection by Robyn Layton QC (the Layton report).

The Hon. R.L. Brokenshire: Eleven years ago.

The PRESIDENT: Order!

The Hon. G.A. KANDELAARS: Although the commissioner is able to consider the circumstances for individual cases and inquire into systemic issues, the role is not intended as a body for all complaints, but would seek to ensure children, young people and families understand their rights and the available dispute resolution options, including how to contact responsible officers of state authorities.

In the situation where children and young people contact the commissioner directly, the role will include providing information and referring matters to the appropriate state authority. If a matter involving state authorities has not been satisfactorily resolved, the commissioner may provide advocacy support for children and young people to seek further action. This function supports families to receive satisfactory resolution where this has not occurred in the first instance, as well as ensuring continuous improvement to processes or systems through the commissioner's monitoring and inquiry function to ensure better responses for families in similar situations.

I am pleased to hear in this debate that the opposition has moderated their original model, which was to investigate individual complaints, towards a model of systemic inquiry which the government has supported. The government bill before us establishes appropriate checks and balances for all parties, including the commissioner ensuring improvements in systems, services and policies at all levels within government. This advocacy for effective policy and continuous improvement aims to ensure best possible outcomes for all children and young people. The commissioner can identify practices that contribute to unsatisfactory resolutions, leading to improvements in the way agencies respond to issues concerning children and young people.

In the bill, the commissioner model will work with, rather than duplicate, functions of bodies such as the Guardian for Children and Young People, SA Police, the Health and Community Services Complaints Commissioner, the Independent Commissioner against Corruption, and the Ombudsman. Finally, it is worth noting the National Children's Commissioner, Ms Megan Mitchell, on the Child Development and Wellbeing Bill. Ms Mitchell said there were different models around the country for a children's commissioner, but they generally did not deal with individual complaints. She said:

Personally, I think the South Australian government's bill is quite an effectual model. There are many commendable features around this bill in terms of structure of the role and the protection of children's rights. There is a (child development) council to support the role, it focuses on children's rights throughout and talks about developing an outcomes framework for children.

I commend the bill to this chamber.

The Hon. I.K. HUNTER (Minister for Sustainability, Environment and Conservation, Minister for Water and the River Murray, Minister for Aboriginal Affairs and Reconciliation) (16:01): I rise to close the debate and in doing so I would like to address some of the statements made by some honourable members about the government's Child Development and Wellbeing Bill during this debate. I would like to address the statement, first of all, that our bill is a watered down version of the private members legislation. This is something I absolutely refute. If anything, the government bill has a stronger and broader approach to the wellbeing and safety of children and young people, with a focus on prevention as well as intervention. In fact, the National Children's Commissioner, Ms Megan Mitchell, as has been noted by a number of speakers, has endorsed the comprehensive model in this government bill.

Some concerns have been raised here about the inquiry powers of the commissioner in the government bill, and more than a few inaccurate claims about the investigative power of other Australian jurisdictions and bodies have been made in the debate, which I would like now to correct. An honourable member claimed the minister was wrong when she said that no other jurisdiction in Australia is exercising full investigative powers of resolving individual cases. In fact, I am advised, it is the honourable member who is wrong. All jurisdictions in Australia have removed, restricted or plan to remove such investigative powers from the role of commissioners or commissions, I am advised.

In the ACT, the commissioner undertakes a targeted and evidence-based program of systemic review and policy work across a broad range of issues. Before 2012-13, there was a focus on individual complaints. However, these legislative provisions are no longer being exercised, because in the commissioner's view, 'It can be more effective to address concerns from a systemic perspective, rather than continuing to address individual and repetitive complaints.' I am advised that is her language.

Neither Tasmania's nor Western Australia's commissioners have any form of investigative powers, I am told. In fact, the Tasmanian model has been heavily criticised because the commissioner can exercise systemic inquiry powers only when directed by the minister. Our government bill enables the commissioner to exercise powers independently and at the commissioner's own discretion, without any power of direction by the minister or Crown.

Indeed the Hon. Mr Wade, I think, has claimed the Australian Human Rights Commission, of which the National Children's Commissioner is a part, does have investigative powers. In fact, the National Children's Commissioner has systemic inquiry powers similar to those proposed in our bill, and not investigative functions. This is consistent with recommendations made by 34 non-government organisations on the functions of the national commissioner, including peak child rights agencies, Save the Children and UNICEF Australia. I am advised that these organisations were also consulted on our commissioner's bill and are supportive of the systemic inquiry functions that it contains.

Members interjecting:

The PRESIDENT: Order! The minister has the call and we don't have a conversation across the chamber. The minister has the call.

The Hon. I.K. HUNTER: They do not like it when they get caught out. Our bill's dismissal provision is consistent with the South Australian Commissioner for Public Sector Employment and with commissioners for children and young people in most other Australian jurisdictions, including the National Commissioner for Children and Young People, Victoria, Queensland, Tasmania and the Australian Capital Territory. I commend this bill to the chamber.

Bill read a second time.

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