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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
2017-05-16 Daily Xml
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Bills

Children and Young People (Safety) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 11 May 2017.)

The Hon. S.G. WADE (15:29): I rise to speak on the Children and Young People (Safety) Bill. The bill is, if you like, the second in a series. Last year, the parliament considered what was generally called the oversight bill.

This bill was introduced in the House of Assembly under suspension of standing orders on 14 February, and was handled in that place in a rather extraordinary way. It is my privilege to chair the Select Committee on Statutory Child Protection and Care in South Australia, and after the bill was tabled, and within its role to inquire into and report on the implementation of the government's responses to the recommendations of the child protection systems royal commission, the committee resolved on 1 March to consider this bill and to seek the views of interested parties on the Children and Young People (Safety) Bill.

In that sense it was not, shall we say, a traditional select committee referral of the bill, and in that sense did not interfere with the parliamentary process. In that sense it was somewhat of an experiment. A number of us in this parliament are thinking about ways we can more efficiently deal with legislation and more effectively engage in the community.

Different parliaments around the world have different processes by which scrutiny of bills can be effected, particularly through parliamentary committees, and there is significant interest in this parliament on those opportunities. In that context, before the select committee made the resolution to look at the bill, we had opportunity for a relatively informal conversation with the Attorney-General on 8 November 2016, for which I thank him.

In that session we talked about the government's response to the Child Protection Systems Royal Commission, and we had a general discussion about whether a committee such as ours could add value in the parliamentary scrutiny. The Attorney called for more dialogue and expressed the hope that, given the nature of the conversation about child protection, he hoped that the parliament could have a more unified collective view about child protection legislation.

In terms of an experiment, I would say that the availability of the committee in terms of facilitating dialogue between the government and stakeholders did not materialise. The committee did seek to facilitate a conversation with the parliament and with the community, and in that regard we received a number of very interesting submissions from stakeholders.

Generally, the committee did not find support for this bill amongst stakeholders. Of course, the stakeholders' views varied—that did not surprise me. To be frank, what surprised me was the extent of unanimity among the stakeholders. The committee's report, which I tabled today and which will be considered in a more formal way by this house in the normal consideration in private members' time, references a letter dated 1 May 2017 from the SACOSS Chief Executive, Mr Ross Womersley. Mr Womersley in that letter effectively was acting as the lead signatory for a coalition of seven key stakeholders.

In that letter Mr Womersley expressed the collective view of those stakeholders that they did not believe the bill should pass the Legislative Council in its current form. In particular, the consensus of the stakeholders was that, in spite of the name of the bill, that is, the Children and Young People (Safety) Bill, the bill is likely to make children and young people less safe and provide them less protection, and in that sense the very clear message was that, in terms of doing no harm, the best way for this parliament to do no harm was to not pass the bill.

It was also the view of stakeholders that there was a need for legislation to deal with early intervention issues and that if those matters were to be legislated it would be better for them to be considered concurrently with this bill. The recommendations of the committee, which have been tabled with its report today, are that:

1. the Government develop, with community engagement and consultation, a bill to amend or replace the Family and Community Services Act 1972 to better protect children and young people by facilitating early intervention, and by strengthening and supporting families;

2. the Children and Young People (Safety) Bill 2017 or a new bill should be considered by the Parliament in concert with the bill developed pursuant to Recommendation 1; and

3. the Government and the Parliament work together with the aim of passing both pieces of legislation by the end of 2017.

In highlighting those recommendations, I would like to acknowledge the hard work of members of the committee: the Hon. John Darley, the Hon. Tammy Franks, the Hon. Dennis Hood, the Hon. Jing Lee, our secretary, Mr Beasley, and our research officer, Ms Mollard.

There have been a lot of conversations between stakeholders, the government, the opposition and the crossbenchers and between different elements of those—different permutations of those groups—so I was very pleased today to receive communication from the stakeholders, which provided an update on progress.

There had been reports of quite a lot of discussions, and I wanted to be clear on what advice we were receiving. So what I propose to read from now is a joint media release issued by the following organisations: SACOSS, the Australian Medical Association, the Law Society, the Aboriginal Legal Rights Movement, the Youth Affairs Council of South Australia, the Child and Family Welfare Association of SA, the Child Protection Reform Movement and the Council for the Care of Children.

The media release is headed 'Alliance urges Upper House to reject flawed and inadequate child safety bill'. I received it soon after midday today. The release reads:

An alliance of child advocates including SACOSS, the AMA (SA) and the Law Society, is disappointed that the Government continues to ignore their expert advice and now urges the members of the Upper House to halt progress of the Children and Young People (Safety) Bill unless remedied.

Members of the alliance include SACOSS, the Law Society, AMA (SA), CAFWA, YACSA, ALRM, the Council for the Care of Children, and the Child Protection Reform Movement. Despite repeatedly encouraging the Government to address key flaws in the Bill, in its current form it remains completely inadequate.

Three crucial areas include: the absence of focus on prevention and early intervention; the need for measures that redress the over-representation of Aboriginal children and young people; and the need to ensure assessments are based are based on 'best interests of the child' rather than 'safety' alone. The current legislation is not consistent with our obligations under the UN Convention on the Rights of the Child.

In our meetings with Government, they did canvass the idea of potentially redrafting the Family and Community Services Act 1972 or developing a new Act, with the idea of establishing a much broader legislative base for the activities of prevention and early intervention especially in relation to child abuse and neglect.

We believe this may be a useful way in which to embed the activities of prevention and early intervention across a range of areas including in driving the work of government in areas of children's wellbeing, health services, education, juvenile justice and support to families and communities more broadly.

If so, a revised F&CS Act (or a completely new Bill) must be considered in conjunction with a duly amended Safety Bill, so as to ensure a comprehensive basis on which to advance the wellbeing and safety of children and young people across South Australia.

This is the key paragraph:

To this end we urge the Cross Bench and the Upper House not to support the Children and Young People (Safety) Bill passing the Legislative Council even with significant amendment, without the opportunity for consideration of another Bill containing prevention/early intervention measures at the same time.

The release ends there, but there are quotes attributable to key members of the alliance. Firstly, Ross Womersley, the SACOSS CEO, is quoted as saying:

We are asking that the Cross Bench takes a strong stance with regard to the C&YP (Safety) Bill. It is a Bill designed to protect some of SA's most vulnerable citizens and therefore it is something that we absolutely must get right.

The AMA(SA) president, Associate Professor William Tam, stressed that the fact that so many groups are standing together on this issue is significant and reflects the strong concerns about the bill, and that the responses we have seen so far are falling short. He said:

It is not every day that you have this many groups standing together to say 'this is not good enough'. We have heard the rhetoric about prevention and early intervention, but what we need now is action.

Simon Schrapel, Chair of the Council for the Care of Children, said:

If the current Child Safety Bill is allowed to pass without the major reforms identified by the Alliance and without a parallel Bill for Child and Family Wellbeing and Prevention then we will be taking a massive backwards step for South Australia's children. This would be one of this Government's greatest missed opportunities at a time we desperately need contemporary legislation to promote the best interests of children and young people in our State.

I turn now to the Liberal Party's position on the bill, which as always was ably put in this council on Thursday of last week by my honourable colleague Andrew McLachlan. He indicated that the Liberal opposition will support the second reading of the bill. It is a long established practice of my party that we believe in the parliamentary process and the value of, shall we say, ventilating ideas in bills, even bills that we may in the end not support. I understand that some parliamentary groups in this chamber may well be intending to vote against this bill at the second reading; that is not the intention of the Liberal Party. In his contribution, the Hon. Andrew McLachlan made it very clear that:

The Liberal Party is listening to the community; the Liberal Party is consulting with community groups. We note the strong views of the Attorney in the other place. We note the strong views of community groups that are advocating that the bill should not pass into law, and retain extant laws at the very least. We are considering carefully the joint statement from the following organisations in respect of amendments to the bill…

The honourable member goes on to read the list of the alliance. Later in his contribution, he states that:

…regardless of our political orientation, we all share the objective that we seek the best legislative framework for the protection of our children in need.

I associate myself with those remarks and the fact that this should be an issue where we as a parliament tread carefully. We need to make sure that we do no harm. Yesterday, the joint party room of the Liberal Party considered the conversation up to this point and, in particular, considered the call of the alliance and, for that matter, the broader community.

The Liberal Party reaffirmed its commitment to support the second reading of this bill but, in the spirit of ensuring the best possible framework to protect and support the health and wellbeing of children and young people, we acknowledge the calls by key stakeholders that this bill progress conjointly with a bill focused on prevention and early intervention. We urge the government to listen to the calls of key stakeholders, experts and the community.

I have a number of concerns with the bill. If it is the government's intention to progress this legislation and ignore the calls of stakeholders for it to be considered concurrently with a parallel bill so that we can have a more holistic and better package to protect children and young people, then I will certainly be making a contribution in the committee stage.

The Hon. T.A. FRANKS (15:44): I rise on behalf of the Greens to oppose the government's Children and Young People (Safety) Bill 2017. While so far in this debate I think the Greens stand alone in opposing the bill, and we intend to vote against it at the second reading stage, we do not stand alone when it comes to looking at those in the sector. Just today, a media release from those in the sector has spoken loud and clear, as the Greens intend to do today.

A joint media release was issued from SACOSS, the Australian Medical Association of South Australia, the Law Society of South Australia, the Aboriginal Legal Rights Movement, the Youth Affairs Council of South Australia, the Child and Family Welfare Association of South Australia, the Child Protection Reform Movement and the Council for the Care of Children. It was headed, 'Alliance urges Upper House to reject flawed and inadequate Child Safety Bill,' and was released just today. It states:

An alliance of child advocates including SACOSS, the AMA(SA) and the Law Society, is disappointed that the Government continues to ignore their expert advice and now urges the members of the Upper House to halt progress of the Children and Young People (Safety) Bill unless remedied.

Members of the alliance, of course, include those I have named. The three crucial areas are identified not only in this media release but time and time again through letters to the Attorney, presentations at the select committee and pleadings, I think, to not just ministers of this government but also members of the Labor Party, members of this parliament, as well as crossbenchers and opposition. It goes on to state:

Three crucial areas include: the absence of focus on prevention and early intervention; the need for measures that redress the over-representation of Aboriginal children and young people; and the need to ensure assessments are based on 'best interests of the child' rather than 'safety' alone. The current legislation is not consistent with our obligations under the UN Convention on the Rights of the Child.

The Alliance media release goes on to state:

In our meetings with Government, they did canvass the idea of potentially redrafting the Family and Community Services Act 1972 or developing a new Act, with the idea of establishing a much broader legislative base for the activities of prevention and early intervention especially in relation to child abuse and neglect.

It goes on to state:

We believe this may be a useful way in which to embed the activities of prevention and early intervention across a range of areas including in driving the work of government in areas of children's wellbeing, health services, education, juvenile justice and support to families and communities more broadly.

If so, a revised F&CS Act (or a completely new Bill) must be considered in conjunction with a duly amended Safety Bill, so as to ensure a comprehensive basis on which to advance the wellbeing and safety of children and young people across South Australia.

The press release goes on to state:

To this end we urge the Cross Bench and the Upper House not to support the Children and Young People (Safety) Bill passing the Legislative Council even with significant amendment, without the opportunity for consideration of another Bill containing prevention/early intervention measures at the same time.

The quotes attributed in this press release are to that of SACOSS CEO, Ross Womersley, who says:

We are asking that the Cross Bench takes a strong stance with regard to the C&YP (Safety) Bill. It is a Bill designed to protect some of SA's most vulnerable citizens and therefore it is something that we absolutely must get right.

The press release also states:

AMA(SA) President Associate Professor William Tam stressed that the fact that so many groups are standing together on this issue is significant and reflects the strong concerns about the Bill, and that the responses we have seen so far are falling short: 'It is not every day that you have this many groups standing together to say "this is not good enough". We have heard the rhetoric about prevention and early intervention, but what we need now is action.'

Simon Schrapel, Chair of the Council for the Care of Children, stated:

If the current Child Safety Bill is allowed to pass without the major reforms identified by the Alliance and without a parallel Bill for Child and Family Wellbeing and Prevention then we will be taking a massive backwards step for South Australia's children. This would be one of this Government's greatest missed opportunities at a time we desperately need contemporary legislation to promote the best interests of children and young people in our State.

I would like to reflect on how we got to this point, where an alliance of such groups is calling for the bill to be voted down, or at least halted until we have both significant amendment and a concurrent bill. We come to this with a process where we have seen a royal commission, under Justice Nyland, a report and we have seen the government in damage control, and I think we have seen an Attorney who simply wants to get a bill passed through the parliament and 'tick and flick' this issue. That tick and flick approach is not good enough on child protection.

We have also seen a bill come which deals with the most difficult of cases, those children in out-of-home care, without addressing in this place how we keep children from getting into that position and how we prevent not just those children but of course those families from getting into that position in the first place. I have certainly listened, through the select committee process, to the joint and consistent concerns raised, not just by those groups but others such as Anglicare.

While I thank minister Rau's office, and in particular Brette Schumann, for their briefing today, I had asked in that briefing who supported the bill in the current form going through. While I received nothing in writing from any particular group that could be identified, I will reflect on one that was raised last week in this place by the Hon. Tung Ngo, saying that the Guardian for Children and Young People had welcomed the bill. He selectively quoted that the guardian had welcomed the bill because it contained the charter for children's rights that was left out of the last bill that we debated in this place and was promised be included in this bill.

To fix a mistake of a previous bill is a good thing, but I hardly think it warrants making the same mistakes all over again. Just how did we get to this place where we have so many people from the sector opposing this particular bill? We get to a place where we have a royal commission and these are issues that, quite rightly, are emotional and are important, and so very important that we get right. We then have the minister, the Attorney, who rushes a consultation process. He declares and defends rather than consults and decides, as was promised by this new Premier Weatherill as a marking of a new approach from the Labor Weatherill government.

We have a bill that was introduced on 14 February in the other place with the suspension of standing orders, a bill that the sector has not seen. The sector, yes, has provided feedback to it over the Christmas break—I will point out, over the Christmas break, when those in the community sector, quite rightly and deservedly, should have been able to get a break rather than be contributing to the government's processes in such a fashion. We get a bill that is introduced with the suspension of standing orders without the sector having seen it, without the sector being able to make members, not only of this chamber but of the other chamber, aware of their concerns, and that the opposition had not sighted until it landed on their tables in the other place.

I watched that debate and I was horrified at the cavalier attitude of the Attorney to try to rush this bill through that place. Some wiser heads must have prevailed because after that it was stalled for some consideration. At that point, as the Hon. Stephen Wade has noted, the upper house's continuing select committee took a reference to take on board this particular bill for further examination. I am certainly pleased to have been an active participant of that select committee and to have not only heard from witnesses but to have taken submissions and to have required that we be privy to the submissions made over that Christmas break by the sector.

Early on, we certainly heard, I think, quite a united voice of concern and alarm bells ringing. Most notably, at that time, was the fact that this bill, in the other place, had completely forgotten to include provisions around female genital mutilation; provisions decades old that had been hard-fought by the women's sector to gain, that were best practice in terms of not only punishing the crime of female genital mutilation, but recognising the specifics, and the cultural specifics, and the secrecy around that crime and ensuring that there were preventative measures in place in our statutes, such as the ability to take passports away where a child was considered at risk, in that case a girl considered at risk.

Of course, we do not actually have laws in this state that prohibit circumcision of male children. We have specific laws around female genital mutilation for very good reason, because it is abhorrent and it is a violation of human rights and indeed the laws that we had. Having both preventative measures and addressing the very secret and cultural nature of that crime were best practice. But the bill before us had forgotten to keep those laws, even though that concern had been raised by the guardian, the very guardian who was very happy that we finally had the charter in this bill because we forgot it in the last bill. She had raised in her submissions to government, over the Christmas break, that female genital mutilation provisions and protections had been lost in this new bill. The guardian's office had been ignored and only through the work of both the select committee and the opposition in the other house did we finally see the Attorney recognise that mistake and correct it.

It was corrected in the other place, but I must say that the debate was incredibly disappointing because both the Attorney and the member for Light posited that perhaps it was somehow offensive and discriminating against boy children and intersex children that there be specific provisions for female genital mutilation, not only ignoring the advice of the guardian in her submission over the Christmas break, but indeed those decades of hard-fought legal reform won by the women's movement and the best advice of the United Nations and the World Health Organisation. Shocking stuff.

If I were a Labor member I would certainly have raised in caucus why on earth we had not kept the protections around female genital mutilation and where were those provisions in this bill. I am quite pleased, however, that the government saw sense on that matter, but that is just one of the issues that was raised.

I will get back to the briefing that I had today where I was told that I would be informed that there were people who support this bill in the sector. I am not buying the story that the guardian has given this bill a glowing review, but I was told that Anglicare was supportive. I found this curious because Anglicare also presented to the select committee. While they are not on the list of the coalition, they are a member of SACOSS and I think perhaps they did not feel the need to differentiate themselves. Of course, SACOSS represents quite a number of organisations with expert understanding of this sector.

The AnglicareSA media release that was put out on the day they presented to the select committee, dated 6 April 2017, titled 'Let's get the Child Protection Bill right,' begs the question that they think there are things in the child protection bill that are wrong. The Anglicare media release goes on to say:

AnglicareSA will use today's appearance before the Select Committee on Statutory Child Protection and Care in South Australia to outline further changes required in the new Children and Young People (Safety) Bill 2017.

Peter Sandeman, AnglicareSA's CEO, is quoted as saying:

We have a once in a generation opportunity to make the fundamental changes required to South Australia's child protection system.

Previous reforms have failed and we must make sure we get the changes right, because some of the most vulnerable young people in our community are counting on us to.

AnglicareSA believes that 'to do no harm' or 'keep children safe' is not a sufficient ambition for our child protection system or the community.

The Bill should be amended to make the best interests of the child the paramount consideration. Safety is important, but our aspirations must be much higher.

He goes on to give examples of how this could be done and he also raises an issue that is dear to my heart and that the Greens are certainly supporting, which is the extension of those provisions for children in state care to the age of 21. He says:

Most young people aren't ready to leave home at the age of 18 yet we require young people in care to be out of home at this age. Given their background, most care leavers are just not ready to exit the system and live independently at 18.

Where is that in this child safety bill? It is silent on the issue and yet we know that 63 per cent of homeless young people are care leavers, 46 per cent of young men and 22 per cent of young women who have been in care are in the juvenile justice system, and 65 per cent of care leavers do not complete year 12. They are the children who we should be giving the best opportunity and the best future to in this bill.

The bill should embody the Home Stretch campaign's goals and provide an extension of care to those children so that they can journey into adulthood and be educated, be employed and have prosperous lives, and not end up back in the juvenile justice system or, indeed, homeless. It is a shocking state of affairs that we do not take better care of those children in our care to ensure that they can become such adults.

I am not sure that Anglicare supports the bill. To my reading, it does not sound like it. Certainly, when Peter Sandeman gave his presentation to the select committee, it did not come across to me as a glowing endorsement of the bill. I am waiting for the government to provide in writing the name of an organisation that does support this bill that works with these particular children and these vulnerable groups, because, as I say, SACOSS, the AMA, CAFWA, YACSA, the Law Society and the Council for the Care of Children have made their views loud and clear.

They did not first raise these views today in that press release. They have submitted to the consultation process to draft this bill and their voices have been ignored. They have written to the Attorney and their voices have been ignored. They have met with the Attorney and minister Close and it seems their voices have been ignored. So, in frustration, they have asked us to halt this bill.

As the government's ministers are well aware, the points of contention are about the language of the best interests of children and young people, intensive family support and ministerial responsibility and accountability and whether the moves to transfer that responsibility to the chief executive are appropriate. Other contentious matters have to do with mandatory reporting and connection with biological family, the temporary placement of children and, of course, the over-representation of Aboriginal children and young people.

In the previous advisory body's child protection bill, the Greens raised that there should be an Aboriginal co-commissioner for children because, as we know, we have an unacceptably high level of Aboriginal children in out-of-home care that must be redressed. Certainly, a step that the ALRM has called for and the Greens support is to put that position in place so that we can turn the tide on that issue.

It is unacceptable in this day and age that we keep having new stolen generations and, indeed, the levels at which children are being taken away from families are at those same levels that we have seen apologies for not just in this place but also in the federal parliament. The annual review of children's and young people's circumstances has also been raised with the select committee and ways that that can be better applied to give these children every chance, as well as the SACAT reviewable decisions.

I know that the opposition has an intention to move amendments to this bill to try to fix it and to try to address some of those particular issues. I also know that the Australian Conservatives member, the Hon. Robert Brokenshire, has amendments around the drug and alcohol testing of parents and the placement of children in those situations. We are seeing a lost opportunity here for that early intervention bill to be debated at the same time as this bill, as the sector has called for. The Law Society has also offered to the select committee to assist with the drafting of the bill.

Should the government see the error of their ways in trying to rush this bill—not listening to the consultations and the feedback they were given over the Christmas break—and sit down with the sector and come up with a bill that the sector can support, then they would see this bill sail through the parliament with an early intervention bill. However, yet again we are here debating how many ambulances we want at the bottom of the cliff rather than putting a fence at the top of the cliff in the first place.

While that is rhetoric, I think this issue deserves more than a shoddy bill that fixes some of the errors of the last bill, that does not listen to the sector and was sought to be rushed through the parliament by an Attorney who seems more bent on just the tick and flick process of another bill through parliament rather than getting this particular bill right. A better approach than amending such a complicated bill on the floor—a complicated bill that I think we need to get right in this area—would be to bring back a bill that the sector supports.

That is why the Greens will oppose this particular bill, but we will engage on each and every amendment. I was informed by the Attorney's advisers today that the government does not intend to table further amendments to this bill. That is disappointing. I was also informed in my briefing today that the government does not intend to bring forth an amendment to the Family and Community Services Act any time soon. This is also a disappointing lost opportunity because I think that was the olive branch that the sector was offering the Attorney: that that bill, which is slated to happen, be debated concurrently so we could make sure that we had a holistic approach to this very important area of state legislation.

It is incredibly disappointing to see the work of previous inquiries ignored and to see a bill brought forth to this parliament that took away Aboriginal children's cultural identity and gave them a supposed choice to decide that they were not Aboriginal. To my reading, that looked more like an attempt by government to reduce the figures of Aboriginal children in out-of-home care by having those children decide that they were not to be referred to as Aboriginal, rather than an approach to child protection that actually puts those children's needs and interests first. Certainly, that was abhorrent.

I welcome the quite unusual amendments the Attorney made to include provisions to protect against child marriage. I also acknowledge the work of both the member for Adelaide and the Hon. Michelle Lensink over a long time on raising those issues on protections that are required from our parliaments to protect girls from being married at a young age. It is quite extraordinary that the Attorney could see fit to include those provisions that reflected the member for Adelaide's previous private member's bill, which I think the government had rejected in an attempt to pacify her, rather than to properly fix this flawed and failed bill.

The Children and Young People (Safety) Bill should be something that came to this place with the full support of those who work at the coalface of child protection. That sector does some of the most difficult work in our society and they deserve better than this slapdash approach from the Weatherill government.

Again, I hope that wiser heads will prevail and that members of the government, apart from the Attorney, will actually read the submissions made to the select committee, read the submissions made by the sector over that Christmas break, read the evidence given and realise that this bill that they are having their party's name and their government's name put to is a bill that is not what our children deserve.

Debate adjourned on motion of Hon. J.E. Hanson.

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