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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
2017-07-05 Daily Xml
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Bills

Children and Young People (Safety) Bill

Committee Stage

In committee.

(Continued from 4 July 2017.)

Clause 14.

The CHAIR: Amendment No. 5 of the Hon. Mr McLachlan has been moved but not voted on.

The Hon. A.L. McLACHLAN: There were some questions of the minister, and the minister was going to respond.

The Hon. P. MALINAUSKAS: I thank the honourable member. I believe where we left off yesterday was in response to the Hon. Mr Brokenshire's question. Fortuitously, we moved to report progress, and in the interim I have been able to get a more definitive response, which I might just read.

I have been advised by the Department for Education and Child Development, which is leading the work, that, as already stated, an initial meeting was held with stakeholders on 30 June. Following that meeting and instructions from the department, parliamentary counsel has begun the first draft of the bill. The bill will be part of a broader children, young people and family wellbeing development and early intervention strategy which will position it with other reforms in this area: for example, the Child Development Council Outcomes Framework and the work of the Early Intervention Research Directorate.

As agreed at the first stakeholder meeting, once the draft bill is ready further engagement will occur using the draft as a basis for discussion. It is the government's intention to have the bill through parliament before the end of the year. This will be guided by consultation and engagement with stakeholders but, of course, is ultimately in the hands of members of this parliament.

The Hon. R.L. BROKENSHIRE: I thank the minister for his diligent work in getting that answer as quickly as he did. He is not only the fastest with questions on notice responses he is also fast on those things. The only question I then have is if it is the government's intention to get the legislation through by the end of this sitting year (which I am pleased to hear), and given that no matter what happens at the next election there is still then several months before the government goes into caretaker mode, is it the intention of the government to ensure that all the regulations associated with that are through so that we have a completely gazetted parallel bill?

The Hon. P. MALINAUSKAS: Based on the advice I received during the course of yesterday evening, it would be reasonable to assume that if it is the government's intention to have a bill through the parliament before the end of the year it would also be the government's intention to have the relevant regulations in place as well.

The Hon. R.L. BROKENSHIRE: Then I ask that the minister request the minister responsible for the whole bill in the other place to, at some point in time, advise us when they expect to have it fully completed with regulations. The other question, which can also be taken on notice, is that whilst it is obviously not absolute as to what that bill will be, there will be money required to facilitate some of the initiatives in the parallel bill, so could we get some information brought back to the council, when possible and convenient, as to how that will be appropriated?

The Hon. P. MALINAUSKAS: I am more than happy to pass that request on and seek the relevant information the honourable member is after.

The Hon. S.G. WADE: Just a passing comment, I observe that the Select Committee on Statutory Child Protection and Care in South Australia was also of the view that that second bill could be achieved within this calendar year, so I certainly do not demur from the government's view. Of course, it was the view of that committee that there would be value in this legislation being considered in conjunction with that legislation, and I believe that would be a much preferred approach to produce the best legislation possible.

Amendment carried; clause as amended passed.

New clause 14A.

The Hon. A.L. McLACHLAN: I move:

Amendment No 6 [McLachlan–1]—

Page 14, after line 15—insert:

14A—Additional annual reporting obligations

(1) The minister must, not later than 30 September in each year, prepare a report—

(a) detailing the role of the minister, and the extent to which the minister has performed the minister's functions, in respect of the operation of this act for the financial year ending on the preceding 30 June; and

(b) setting out the following information relating to the provision of family support services and intensive family support services to children and young people who are at risk and their families:

(i) the extent to which such services were provided by, or on behalf of, the state (including statistical data relating to the number of times such services were provided) during the financial year ending on the preceding 30 June;

(ii) the amount of resources allocated for the provision of such services by or on behalf of the state—

(A) during the financial year ending on the preceding 30 June; and

(B) during the current financial year;

(iii) the extent to which the allocated resources were, in fact, spent on the provision of such services during the financial year ending on the preceding 30 June;

(iv) benchmarking the resources referred to in subparagraph (ii) and (iii) against those allocated and spent by other states and territories in the provision of such services during the financial year ending on the preceding 30 June; and

(c) providing any other information required by the regulations for the purposes of this paragraph.

(2) The minister must, as soon as is reasonably practicable after preparing a report under this section, cause a copy of the report to be published on a website determined by the minister.

(3) The minister must, within six sitting days after preparing a report under this section, cause a copy of the report to be laid before each house of parliament.

(4) The requirements of this section are in addition to any other reporting obligation of the minister.

This clause follows philosophically from the last amendment. It aims to provide additional annual reporting obligations. The concerns of the stakeholders have been that there has been underfunding, and there is also a risk of inadequate funding going forward. This is a tried and tested technique. It is to provide as much information as possible in annual reports, which allows for public debate about the level of funding—obviously in the year past, not going forward—but it will inform the community discussion regarding the funding of this sector.

The Hon. P. MALINAUSKAS: The government opposes the amendment. Currently, clause 14 of the bill imposes additional functions of the minister that seek to support the wellbeing of children and young people and promote early intervention where they may be at risk of harm. But, at a strategic level, I note for the sake of completeness that separate and additional reporting functions are required of the chief executive, both under this legislation and pursuant to existing measures contained in the Public Sector Act 2009.

This amendment seeks to impose detailed reporting provisions relating to the provision of family support services and intensive family support services to children and young people who are at risk. It seeks to impose a requirement that the annual report specifically addresses benchmarking the resources against other jurisdictions. The government already reports annually on its expenditure in child protection in the Report on Government Services. This report is national and provides the comparisons that this amendment is seeking. I note that other national reporting on child protection occurs annually in the Child protection Australia report. This amendment is at risk of requiring resources to be diverted into meeting these additional reporting conditions on top of our national reporting that already occurs.

Further early intervention measures, as required by the child protection royal commission report, which do not require legislative reform, are already being progressed and have been detailed in the recently released update on the implementation of the royal commission recommendations, entitled 'A Fresh Start—Progress Report June 2017', in particular the establishment of the early intervention research directorate, which is responsible for researching, evaluating and determining the evidence base regarding only early intervention programs and making recommendations to do with funding, in addition to preparing an early intervention strategy for the state.

The state has accepted the recommendation to provide annual reports on the implementation of those recommendations. As stated, there are existing measures in place to ensure ministerial accountability through national reporting. The government opposes this amendment.

The Hon. T.A. FRANKS: The Greens will be supporting the opposition amendment. We believe that it is appropriate that we have additional annual reporting obligations. I am interested in the government argument that says, 'We already do this. We already do this work. We send it federally and it would be too much to report where we are actually held accountable for it to the people of South Australia through the Parliament of South Australia.' I find that an offensive response. I think the reporting to the Parliament of South Australia will make this government accountable for this portfolio in a way that reporting federally does not. That is why the Greens will be supporting this amendment.

The Hon. R.L. BROKENSHIRE: This, to me, follows on from the previous clause, which we did support. As someone who, whenever possible, wants to help protect the government of the day, on behalf of Australian Conservatives, I will be supporting this amendment. The reason is that, at the end of the day, we have to restore faith and confidence in the general community that we are doing everything possible in conjunction with the government—that is, the Parliament of South Australia in conjunction with the government—to protect the children, to look after their personal interests, to help families keep together and all of the things that we are debating, and have for a long time, that follow on from a lot of very expensive multimillion dollar royal commissions, select committees and coronial inquests.

This does not actually hurt the government at all. In fact, it is good for the government. What it does do is actually place some pressure back on the relevant agency to make sure that they are tracking and monitoring and that they are actually conducting their business within the intent of the act. That has not occurred in the past.

I recall when the Hon. Caroline Schaefer chaired a select committee into Families SA—and we have another one on the go now—when I was privileged to take the transition or changeover, whichever way you look at it, from the Hon. Andrew Evans. I was on that committee. I am very happy to put this on the public record because we now have a new chief executive officer, a responsible lady who comes highly recommended from Queensland. I understand it is a good appointment for the government on this occasion. She has a massive job to change the culture underneath her. You do not always know best; sometimes other people actually know a few things, too.

What this does is place some pressure on the department, because the department has failed and failed again. As far as I was concerned, when I sat on that select committee—and I was not the only member of parliament—I believed that Families SA in that instance actually held the parliament in contempt and did everything it possibly could to deliberately deny us information that we were after. So, I have lost total confidence in how these agencies act, and if I have then I am damn sure that a lot of my colleagues in the general community have.

Anything we can do that puts pressure on the department to do proper reporting and tracking through to the minister so that we as a parliament can look at what is going on is a good thing, so we will be supporting this particular amendment.

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

New clause inserted.

Clause 15.

The CHAIR: The next amendment is amendment No. 7 to clause 15.

The Hon. A.L. McLACHLAN: I will not be pursuing the amendment. It is my view that it is consequential and therefore there is no need for me to move it, as the chamber did not find favour with my earlier amendment regarding inserting 'minister' instead of 'chief executive'.

Clause passed.

Clause 16 passed.

Clause 17.

The Hon. J.M.A. LENSINK: The minister will be delighted to know that I have some questions about female genital mutilation. Can the minister advise whether FGM is currently a mandatory notification in South Australia?

The Hon. P. MALINAUSKAS: My advice is that the answer to your question is yes, because under the current act FGM would fall under the category of abuse and neglect and therefore would trigger the appropriate response.

The Hon. J.M.A. LENSINK: Is the minister able to provide any data or information about which agency would collect data or estimates on the following matters: the number of notifications that have been received, the number of girls at risk and the number of girls who have undergone the procedure? I think that is probably enough for now. I will leave it at that, but I do have further questions.

The Hon. P. MALINAUSKAS: In terms of getting those statistics for the honourable member, I will have to take that on notice.

The Hon. J.M.A. LENSINK: Can you advise which agency would be responsible?

The Hon. P. MALINAUSKAS: I am advised that there is no one single agency that collates the data as it currently stands, but there are a number of agencies that could potentially do it; for instance, if it was a matter that was investigated criminally by SAPOL, or it could potentially be SA Health if a medical practitioner established that such a procedure had occurred. There are a number of agencies at the moment that would collect data. As it currently stands, under the current regime, there is no one central agency that collates the data.

The Hon. J.M.A. LENSINK: I would like to get this on the record. I do not want to hold up this debate now, but will the minister agree to get back to me in writing on any of the matters that have not been responded to and also to the questions that I asked on 28 February in relation to these matters?

The Hon. P. MALINAUSKAS: I am more than happy to take that question on notice and ensure that the minister responsible in the other place tries to get that response to the honourable member.

The Hon. J.M.A. LENSINK: In relation to some of the debate, in the House of Assembly there was some discourse on this particular matter. The Attorney-General, in responding to one of the other member's questions that was in relation to whether FGM provisions discriminated against boys and children, said the following:

There does appear to be some difference in the way in which the law presently treats certain cultural practices that affect female children compared with not grossly dissimilar cultural practices that affect male children or, potentially, intersex children.

My question for the minister is: is that the government's official position?

The Hon. P. MALINAUSKAS: I note that the honourable member refers to the Attorney-General's remarks made in parliament, I believe, some time ago. Notwithstanding the fact that, clearly, the Attorney-General is a member of the government, it should not be taken that that position necessarily reflects the government's position generally on the issue.

The Hon. T.A. FRANKS: Where a procedure is performed on an intersex child, is that also subject to mandatory notification?

The Hon. P. MALINAUSKAS: My advice is that should a procedure on an intersex person—or intersex child, I think was the specific question—take place, under this act would that constitute a—

The Hon. T.A. Franks: Mandatory notification.

The Hon. P. MALINAUSKAS: A mandatory notification, sorry. Would it necessitate a mandatory notification under this act? I will simply answer that question by saying that if it falls within the definition of FGM as prescribed in clause 17(4), or more generally as an act that constitutes harm under the meaning of harm in clause 16 of the act, if it fit within that description the answer to that question would be yes.

The Hon. T.A. FRANKS: I do not have any further questions, other than I echo the request for information around the incidence of those that the Hon. Michelle Lensink has asked for and ask that I also be provided with that information for both FGM and, indeed, for genital procedures for intersex children.

The Hon. P. MALINAUSKAS: Sure. Again, I am more than happy to take that on notice and seek the appropriate information from the responsible minister in the other place and get back to you ASAP.

Clause passed.

Clauses 18 to 29 passed.

Clause 30

The Hon. A.L. McLACHLAN: I move:

Amendment No 11 [McLachlan–1]—

Page 25, line 18 [clause 30(1)]—Delete 'in a manner specified by the Minister by notice in the Gazette' and substitute 'in accordance with subsection (3a)'

Amendment No 12 [McLachlan–1]—

Page 25, lines 34 and 35 [clause 30(3)]—Delete 'in a manner specified by the Minister for the purposes of subsection (1)' and substitute 'in accordance with subsection (3a)'

Amendment No 13 [McLachlan–1]—

Page 25, after line 35—Insert:

(3a) A person reports a suspicion under this section by doing 1 or more of the following:

(a) making a telephone notification to a telephone number determined by the Minister for the purposes of this subsection;

Note—

This telephone line is currently known as the Child Abuse Report Line or CARL.

(b) making an electronic notification on an electronic reporting system determined by the Minister for the purposes of this subsection;

(c) by reporting their suspicion to a person of a class, or occupying a position of a class, specified by the Minister by notice in the Gazette;

(d) reporting their suspicion in any other manner set out in the regulations for the purposes of this paragraph,

and, in each case, providing—

(e) —

(i) in the case of an unborn child—the name and address (if known) of the mother of the unborn child; or

(ii) in any other case—the name and address (if known) of the child or young person; and

(f) information setting out the grounds for the person's suspicion; and

(g) such other information as the person may wish to provide in relation to their suspicion.

The current drafting talks of reporting in a manner as specified by the minister by notice in the Gazette. The amendments are seeking to delete that and bring in what is anticipated would be in the regulations to make it absolutely clear in the governing act itself the options for notification. It also has the all-encompassing clause in which the minister can also provide additional means of reporting by notice in the Gazette.

Whilst it could be argued that these amendments do not take the existing clause much further, there was concern expressed in the Nyland report on how mandatory reporting should be undertaken. It is the Liberal Party's view that we would like the express provisions that would otherwise potentially be in the regulations to be set out in the body of the act, if proclaimed.

The Hon. P. MALINAUSKAS: The government opposes the amendment. This amendment relates to the implementation of the Child Protection Systems Royal Commission report's recommendation No. 56, which was accepted in the government's response to the royal commission report. Recommendation No. 56, in summary, states that existing legislation should be amended to permit mandated officers to discharge obligations by reporting to the agency's call centre or to a designated child wellbeing practitioner or by referral to a child and family assessment and referral network where the notifier believes a child's circumstances would be adequately attended to by a prevention or early intervention program.

The government is of the view that clause 30 of the bill implements this recommendation. The rationale for the current approach, as set out in clause 31 of the bill, is that it would allow the minister to expand the ways that notifiers are able to discharge their obligations beyond the child safety pathway when alternative notifying pathways, such as child or family assessment and referral networks, are available, ready and appropriate.

By contrast, this amendment is problematic from the outset as it requires a person reporting a suspicion under this section to do one or more of the prescribed actions. This is of significant and real concern in terms of its implications of one person reporting the same matter via multiple means. As was made clear in the royal commission's report, it is imperative that the pressures on CARL are relieved and streamlined to address the lengthy delays for callers and backlogs of reported matters. This amendment, if passed, will only add to those issues.

Finally, the government notes that mandatory reporters are required to undergo mandatory reporting training, which includes details on where notifications are to be made. Further, there are many avenues to find the appropriate notification method for non-mandated officers, including the department's website and other government and non-government websites. For these reasons, I urge members to oppose the amendment.

Ayes 11

Noes 10

Majority 1

AYES
Brokenshire, R.L. Darley, J.A. Dawkins, J.S.L.
Hood, D.G.E. Lee, J.S. Lensink, J.M.A.
Lucas, R.I. McLachlan, A.L. (teller) Ridgway, D.W.
Stephens, T.J. Wade, S.G.
NOES
Franks, T.A. Gago, G.E. Gazzola, J.M.
Hanson, J.E. Hunter, I.K. Maher, K.J.
Malinauskas, P. (teller) Ngo, T.T. Parnell, M.C.
Vincent, K.L.

Clauses 31 to 34 passed.

Clause 35.

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

Amendment No 1 [Broke–2]—

Page 28, line 25 [clause 35(1)]—Delete 'may' and substitute 'must'

I advise the council that we have sent emails on this. My first set of amendments, I have advised the Deputy Clerk, were withdrawn and were replaced with another set that was filed on 30 May. We are dealing with the amendments from 30 May as filed. I seek your guidance on this, but I will go through clause by clause and not try to group them.

Amendment No.1: under clause 35(1) of the bill the chief executive may direct a parent, guardian or other person to undergo an approved drug and alcohol assessment, where there is reasonable suspicion a child or young person is at risk of harm as a result of drug or alcohol abuse, or both, on behalf of a parent, guardian or other person.

The Australian Conservatives believe that too often inaction has resulted in tragic outcomes. The purpose of this amendment is to place a positive duty on the chief executive to act where there are suspicions a young person or child is at risk due to drug or alcohol abuse. This amendment is consistent with the existing Children's Protection Act 1993, which obviously will be repealed by this bill, namely section 20(2) of the act, which states:

…if the Chief Executive is of the opinion that a child is at risk as a result of the abuse of a drug by a parent, guardian or other person, the Chief Executive must apply for an order under subsection (1) directing the parent, guardian or other person to undergo a drug assessment.

That is in the existing act, which will be superseded by the government's bill that we are debating at the moment. This amendment is in line with the existing policy and is also consistent with clause 7 and the overall purpose of the bill, which is to, above all else, protect children and young people from harm.

The Hon. P. MALINAUSKAS: The government opposes the amendment. The amendment seeks to amend clause 35 of the bill to make it mandatory for the CE of the department to direct persons to undergo drug and alcohol assessments where there is reasonable suspicion that a child or young person is at risk as a result of the abuse of a drug or alcohol, or both, by a parent, guardian or other person.

As the Deputy Premier has made clear in the other place, the bill has been drafted in order to provide appropriate flexibility to the CE in relation to the exercise of powers conferred to administer and enforce the legislation. Consistent with this approach, the government is of the view that it is a matter for the CE and staff of the department, who have intimate knowledge of circumstances and facts pertinent to the particular case, to make the judgement as to whether a parent or guardian should be directed to undergo an assessment.

Parliament's role in the circumstances of this bill is to prescribe the mechanisms that are available for use by the experts in the field, namely, the CE and the Youth Court. In this respect, I note the comments of Commissioner Nyland in her report at page 200 on the department maintaining a discretion regarding drug and alcohol assessments:

…it is unrealistic to prescribe by legislation when such an application should occur. This is a matter for professional judgment by trained, experienced practitioners under ongoing clinical supervision and supported by clear organisational policy as to the importance of responding to protect children from all types of abuse and neglect. A legislative mandate would mean that workload management efforts would focus on the need to comply with legislation to address particular kinds of risk, potentially neglecting other, equally serious, types of risk.

On that basis, the government strongly urges members to oppose this amendment.

The Hon. A.L. McLACHLAN: The Liberal opposition will not support this amendment. The opposition's reasoning is similar to those points raised by the minister.

Amendment negatived.

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

Amendment No 2 [Broke–2]—

Page 28, line 30 [clause 35(2)]—Delete 'may' and substitute 'must'

My amendment No. 2 is similar to amendment No. 1, but it actually relates to the lack of parenting capacity. Under clause 35(2) of the bill the chief executive may direct a parent, guardian or other person to undergo a parenting capacity assessment where there is reasonable suspicion that a child or young person is at risk of harm as a result of a lack of parenting capacity on the part of the parent. Similarly, the purpose of this amendment is to place a positive duty on the chief executive as I moved in amendment No. 1.

The Hon. P. MALINAUSKAS: Obviously, the government opposes this amendment for the same reasons.

Amendment negatived; clause passed.

New clauses 35A, 35B, 35C, 35D, 35E and 35F.

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

Amendment No 3 [Broke–2]—

New clauses, page 28, after line 44—Insert:

35A—Random drug and alcohol testing

(1) This section applies to—

(a) a person who has, in the preceding 5 years, been directed by the Chief Executive to undergo an approved drug and alcohol assessment under section 35(1); or

(b) a person who was, in the preceding 5 years, the subject of an application for an order under section 20(2) of the Children's Protection Act 1993 (whether or not the application was granted); or

(c) any other person of a class declared by the regulations to be included in the ambit of this subsection.

(2) A person to whom this section applies must, in accordance with the scheme set out in the regulations, take part in random drug and alcohol testing.

(3) Without limiting any other regulations that may be made in relation to the scheme for random drug and alcohol testing, the regulations must include provisions—

(a) authorising the taking of forensic material consisting of hair or blood for the purposes of this Act; and

(b) requiring such forensic material to be tested to identify any drug or alcohol that may be present in the material; and

(c) requiring or authorising the results of such testing to be provided to the Chief Executive or other specified person or body.

(4) The Chief Executive may, in relation to random drug and alcohol testing under this section, by notice in writing, require a person to whom this section applies to take the action, and within the period, specified in the notice.

(5) A person to whom this section applies must not, without reasonable excuse, refuse or fail to comply with a requirement under this section.

Maximum penalty: Imprisonment for 6 months.

Note—

A refusal or failure to comply with a requirement may also result in a child or young person being removed—see section 35C.

(6) A person is not entitled to refuse or fail to comply with a requirement under this section on the ground that the person would, or might, by complying with that requirement, provide evidence that could be used against the person.

(7) To avoid doubt, for the purposes of the Criminal Law (Forensic Procedures) Act 2007, the taking of forensic material in the course of a random drug and alcohol test is authorised under this Act.

35B—Chief Executive may direct certain persons to undertake rehabilitation program

(1) The Chief Executive may, by notice in writing, direct a person to whom section 35A applies to undertake an approved drug and alcohol rehabilitation program of a kind specified in the notice.

(2) A person must not, without reasonable excuse, refuse or fail to comply with a direction under subsection (1).

Maximum penalty: Imprisonment for 6 months.

Note—

A refusal or failure to comply with a direction may also result in a child or young person being removed—see section 35C.

(3) A notice under subsection (1) must set out the information required by the regulations for the purposes of this subsection.

(4) For the purposes of this section, a reference to an approved drug and alcohol rehabilitation program will be taken to be a reference to a drug and alcohol rehabilitation program of a kind approved by the Chief Executive by notice in the Gazette.

35C—Removal of child or young person at risk as a result of drug or alcohol abuse

(1) If a child protection officer believes on reasonable grounds that—

(a) a child or young person is at risk as a result of the abuse of a drug or alcohol (or both) by a parent or guardian, or any other person with whom the child or young person resides; and

(b) it is necessary to remove the child or young person from the situation in order to protect them from suffering harm or further harm,

the child protection officer may remove the child or young person from any premises, place, vehicle or vessel using such force (including breaking into the premises, place, vehicle or vessel) as is reasonably necessary for the purpose.

(2) If a person—

(a) refuses or fails, without reasonable excuse, to comply with a direction under section 35(1); or

(b) refuses or fails, without reasonable excuse, to comply with a requirement under section 35A; or

(c) refuses or fails, without reasonable excuse, to comply with a direction under section 35B,

a child protection officer may, with the written approval of the Chief Executive, remove a child or young person to whom the relevant direction or requirement relates from any premises, place, vehicle or vessel using such force (including breaking into the premises, place, vehicle or vessel) as is reasonably necessary for the purpose.

(3) A child protection officer who removes a child or young person under this section must deliver the child or young person into the care of a person or persons determined by the Chief Executive.

(4) If the Chief Executive does not already have custody of a child or young person removed under this section, the Chief Executive, by force of this section, has custody of the child or young person until the end of the fifth business day following the day on which the child or young person was removed.

(5) If a child or young person is removed under this section, the Chief Executive must, without undue delay, apply to the Court for the following orders under section 48:

(a) an order placing the child or young person under the guardianship of the Chief Executive for a period of 12 months;

(b) such other orders as the Chief Executive considers necessary or appropriate to protect the child or young person from harm, or further harm, arising out of the suspected abuse of a drug or alcohol (or both) by a parent or guardian, or any other person, with whom the child or young person resides.

(6) The regulations may make further provision in relation to an application under this section (including, to avoid doubt, by prescribing circumstances in which the Chief Executive need not comply with subsection (5)).

(7) This section is in addition to, and does not derogate from, section 36.

35D—Child or young person not to be returned to certain persons unless rehabilitation program completed

(1) Despite any other provision of this Act, a person from whom a child or young person is removed under section 35C is not entitled to apply for an order of the Court placing the child or young person under the person's guardianship or custody, or variation of an order referred to in section 35C(5), unless the person has successfully completed any drug and alcohol rehabilitation program that the person was directed to undertake under this Act.

(2) Despite any other provision of this Act, the Court must not make an order returning a child or young person removed under section 35C to the guardianship or custody of a person from whom the child or young person was so removed unless—

(a) the person has successfully completed any drug and alcohol rehabilitation program that the person was directed to undertake under this Act; and

(b) the Court is satisfied that the person is no longer abusing drugs or alcohol (or both).

35E—Forensic material and results of drug and alcohol testing etc not to be used for other purposes

(1) Forensic material obtained in the course of an approved drug and alcohol assessment, a random drug and alcohol test or an approved drug and alcohol rehabilitation program must not be used for a purpose other than a purpose contemplated by this Act.

(2) The results of an approved drug and alcohol assessment, a random drug and alcohol test or an approved drug and alcohol rehabilitation program—

(a) will not be admissible in evidence against the person to whom the results relate, other than in proceedings for an order of the Court under this Act; and

(b) may not be relied on as grounds for the exercise of any search power or the obtaining of any search warrant.

35F—Destruction of forensic material

The Chief Executive must ensure that any forensic material obtained in the course of an approved drug and alcohol assessment, a random drug and alcohol test or an approved drug and alcohol rehabilitation program is destroyed in accordance with any requirements set out in the regulations.

This amendment seeks to insert a number of new clauses into the bill. First of all, this amendment seeks to insert random drug and alcohol testing into the bill. The scheme for random drug and alcohol testing will be prescribed by regulation, but to be subject to random testing a person must have been directed by the chief executive to undergo an approved drug and alcohol assessment under clause 35(1) in the preceding five years. Also, a person who is subject to an order under section 22 of the Children's Protection Act 1993 will be subject to random testing.

I note that section 20(2) of the current act relates to an order by the chief executive for a person to undergo a drug assessment. Importantly, random testing will incorporate hair follicle testing, which minimises the possibility of participants manipulating results. Experts advise us that this newer technology (which was probably very new when the last legislation that we are still dealing with at the moment came through the parliament) is now the best way of testing whether or not a person has been using illicit drugs.

The penalty for not complying with the random testing provisions will be up to six months' imprisonment. This is consistent with the penalty for refusing to comply with a direction to undergo a drug and alcohol or parenting capacity assessment under clause 35(3) of the bill. Not complying with random testing requirements may also warrant removal of a child or young person, clearly if they were seen to be at risk.

Secondly, this amendment allows the chief executive to direct certain persons to undertake rehabilitation and, thirdly, this amendment provides further powers to the chief executive and/or child protection officers to remove a child or young person where it is believed they are at risk.

The Hon. T.A. FRANKS: I ask a question of the mover. This section applies to:

(a) a person who has, in the preceding 5 years, been directed by the Chief Executive to undergo an approved drug and alcohol assessment under section 35(1);

What if that assessment found that they did not have a drug and alcohol problem? What happens then? It appears that then they are actually subjected to this regime even if they do not have a drug and alcohol problem. Is that the case? That is my reading of this amendment.

The Hon. R.L. BROKENSHIRE: My intent is that this would be random testing, and the person must have been directed to undergo an approved drug and alcohol assessment in the preceding five years. It would be random and it is a check and balance on cases that the department has concerns about. They would have that right to go for a random drug and alcohol test. That is the intent.

The Hon. T.A. FRANKS: Who would have the right to go for a random drug and alcohol test?

The Hon. R.L. BROKENSHIRE: The chief executive would have the right to direct that that person go through a drug and alcohol test if there is a concern for the children.

The Hon. T.A. FRANKS: Let me get this straight. The chief executive has directed that an assessment be undertaken. The assessment has found nothing but then, for five years, the chief executive also has the right to randomly drug and alcohol test this person. If this person has alcohol in their system at any stage in that five years and that is detected by a random test, what happens then?

The Hon. R.L. BROKENSHIRE: It gets back to the discretion. Obviously, as there is with most of this, there would have to be a situation where an officer within the department, up to and including the chief executive officer, feel that the child is at risk. Obviously, if the person has just had some alcohol, under .05 and no reported cases, then you would not expect there would be a proceeding. However, if the person is testing high for illicit drugs and there are problems and concerns raised, that gives the chief executive officer a chance to proceed with that test.

The Hon. P. MALINAUSKAS: The government supports some components of the Hon. Mr Brokenshire's amendment but opposes others, and I seek your guidance as to how best to deal with this. The government's position is that it supports new clauses 35A, 35B, 35E and 35F of the Hon. Mr Brokenshire's amendment, but opposes new clauses 35C and 35D.

The CHAIR: We can put all the new clauses individually.

New clauses 35A, 35B, 35E and 35F inserted; new clauses 35C and 35D negatived.

The Hon. A.L. McLACHLAN: My amendments Nos 14 to 31 are consequential.

Clauses 36 to 71 passed.

Clause 72.

The Hon. A.L. McLACHLAN: I move:

Amendment No 32 [McLachlan–1]—

Page 44, line 19 [clause 72(2)(a)]—After 'nature' insert '

(and in any event must not exceed a period of 3 months)

This is technically a simple amendment that has a significant effect. After the word 'nature'—which occurs in the phrase 'must be of a temporary nature'—the amendment inserts the words 'and in any event must not exceed a period of 3 months.' Clause 72 sets out a mechanism for temporary placement. The Liberal Party does not oppose this, but the current drafting of the clause will allow, in effect, the temporary nature to be uncertain.

Whilst the existing clause says that a temporary placement must be brought to an end as soon as is reasonably practicable, the Liberal Party holds the view that there should be an outside limit on that. That will then crystallise a decision by the chief executive whether to order a new temporary placement or to find some other mechanism for looking after that child. This is to prevent the mischief of a placement of a temporary nature rolling on and being seen as appropriate in the eyes of the chief executive, but potentially being outside community expectations. So, it is to force, in essence, an administrative decision every three months.

The Hon. P. MALINAUSKAS: The government opposes this amendment. This amendment relates to clause 72 of the bill, which enables the CE to place a child or young person removed under the act, or who is in the custody or guardianship of the CE, in the care of a person, despite that person not being an approved carer, if the CE is satisfied of the matters referred to in subclause (1). Such placements must be temporary, exceptional and must be regularised as soon as it is practicable to do so. Specifically, this amendment seeks to prescribe an absolute limit of three months in relation to an exercise of this provision by the CE. I draw members' attention to clause 72(4), which states:

The regulations may make further provisions in relation to the placement of a child or young person in the care of a person under this section…

I am advised that there is no intention by the department to utilise this provision for anything other than a temporary period of time. The time limit should reflect the paramount consideration of the legislation, being the protection of children and young people from harm and other priorities such as stability and permanence for children and young people. Work is currently progressing in the department to prepare regulations, policies and guidelines in relation to the operation of clause 72 of the bill, which provide a time limit.

To place an arbitrary time limit of three months precludes that much-needed flexibility, should there be a need, on a rare occasion, for whatever reason, to go a little beyond the 12-week mark in order to find an appropriate and permanent placement for a child with special needs or behavioural difficulties that are beyond the capacity of some carers. The government submits that regulations are best able to capture the discrete operational application of this clause that will be informed by sound policy development that is currently underway.

Finally, the period of three months does not reflect the time needed for a carer to undergo a full carer assessment. Such a short period could have an unintended consequence of requiring the department to shift the placement of a child every three months until such time as the carer has finalised their assessment. This would undermine the child being at the centre of decision-making and the need for stability. For these reasons, the government opposes this amendment.

The Hon. R.L. BROKENSHIRE: I have a question of the mover, the Hon. Andrew McLachlan. Notwithstanding that most, if not all, people would like to see the best possible placement long term for a young person who needs a placement, in complicated situations it may be in the best interests of that child to be in a certain interim care position for more than a three-month period. Can the mover confirm that this amendment actually takes discretion away, and it would then be absolute that the periods are a maximum of three months, even though what is happening with that child at this point in time is in the best interests of the child?

The Hon. A.L. McLACHLAN: I thank the honourable member for his question. It is my understanding from my conversations with the parliamentary drafter that this in effect crystallises the decision-making, so that the temporary period is over, but a new temporary period could be ordered. The definition of 'temporary' could be six months or it could be eight months. We have had difficulties in the department in relation to making decisions in this context, so the effect the amendment is trying to achieve is to force the chief executive to make decisions every three months about what to do with the child.

I appreciate the government's arguments. They want the framework of the bill to be as flexible as possible for the chief executive, but there is not a lot of trust in the community, particularly from stakeholders in this area. We have also taken advice on the period from the stakeholder group. It really comes down to whether you want total flexibility when it is 'temporary'—how long is a piece of string?—or whether you want to force rolling decision-making. The view of the Liberal Party is the latter.

The Hon. T.A. FRANKS: The Greens indicate that we support this amendment and also ask the government to clarify whether or not, under the child protection act and legislation that we currently operate under, judicial discretion with regard to child protection orders is actually already limited to periods not exceeding three months.

The Hon. J.A. DARLEY: For the record, I will be supporting this amendment.

The Hon. R.L. BROKENSHIRE: I advise that we will not be supporting the amendment.

The Hon. K.L. VINCENT: The Dignity Party is not inclined to support this amendment at this time for reasons that have been quite well outlined by other members. I wanted to ask the mover of the amendment a question and I hope I have heard him correctly across the chamber. I think he said that a person could reapply for another temporary order if the time period needed to be extended for a child or a young person to remain in the same home. Given the speed at which bureaucracy tends to move, could that not result in a situation where you would almost have to reapply as soon as the child is placed with you; that is, get the second order in place before the order lapsed?

The Hon. A.L. McLACHLAN: I do not have an intimate knowledge of the practices and procedures, so I am taking this on advice, not from my own experience of this area of practice. In essence, it is keeping a clock ticking on what 'temporary' is. Therefore, the chief executive will have to watch the time and make conscious decisions. In essence, a new application or some other response to the child's situation will have to be addressed in that three months.

It is setting a time frame for decision-making, which is what it is there for. It is designed to stop the mischief of 'temporary' then being assessed subjectively by the department to be one or two years. They will be forced to justify themselves every three months. We could go through a whole series of circumstances where that could be seen as torturous upon the chief executive, but we are in an environment of limited trust about this bureaucracy's ability to effect the law, no matter what it is.

The Hon. K.L. VINCENT: Could I perhaps then ask the same question of the minister, given that he has a helper there? How long would it ordinarily take? I know it can vary from case to case. How long would it take for someone to apply for a child to be able to stay with them for a longer period of time at the moment?

The Hon. P. MALINAUSKAS: In response to the Hon. Ms Vincent's question, I am advised that the answer to that is approximately 12 weeks. In regard to the question the Hon. Tammy Franks asked earlier about existing frameworks that are in place, there is that 12-week (or three-month) requirement that is currently in place, but that is in respect to the investigative process in the lead-up to a decision being made, which is quite different from what is being discussed here.

The committee divided on the amendment:

Ayes 11

Noes 10

Majority 1

AYES
Darley, J.A. Dawkins, J.S.L. Franks, T.A.
Lee, J.S. Lensink, J.M.A. Lucas, R.I.
McLachlan, A.L. (teller) Parnell, M.C. Ridgway, D.W.
Stephens, T.J. Wade, S.G.
NOES
Brokenshire, R.L. Gago, G.E. Gazzola, J.M.
Hanson, J.E. Hood, D.G.E. Hunter, I.K.
Maher, K.J. Malinauskas, P. (teller) Ngo, T.T.
Vincent, K.L.

The CHAIR: The Hon. Mr McLachlan, are amendments Nos 33 to 41 consequential?

The Hon. A.L. McLACHLAN: I confirm that they are, in the view of the Liberal Party, consequential.

Clauses 73 to 78 passed.

Clause 79.

The Hon. P. MALINAUSKAS: I move:

Amendment No 1 [Police–1]—

Page 46, after line 17—Insert:

(ba) remove the child or young person from the care of a person referred to in a preceding paragraph;

The government amendment seeks to amend clause 79 of the bill, which sets out the powers that the CE may exercise in relation to a child or young person who is in their custody or under their guardianship. Specifically, this amendment seeks to clarify that a chief executive may remove the child or young person from the care of a person. This is necessary, as the government has filed amendments which seek to expand the scope of the jurisdiction conveyed upon the South Australian Civil and Administrative Tribunal. By explicitly including this decision in the powers of the CE, it makes clear that the decision will be able to be reviewed by SACAT.

This has been done in response to feedback received primarily from Connecting Foster Carers SA, which has strongly advocated that foster carers should be entitled to an external and independent review of a decision to remove a child from their care. The government has responded to ensure that any barriers to the recruitment and retention of foster carers are removed and that the concerns have been addressed in the bill.

The Hon. A.L. McLACHLAN: The Liberal Party supports the government's amendment.

The Hon. T.A. FRANKS: The Greens indicate, as I did at clause 1, that we will be supporting this amendment, although I do ask the minister to clarify whether or not the representations he had from those dealing with foster care were completely addressed, or is this only a partial addressing of their requests?

The Hon. P. MALINAUSKAS: I am advised that when you look at this amendment in combination with others, then yes, in their totality they address the concerns.

The Hon. T.A. FRANKS: Could you please clarify that it was all of the concerns addressed by this amendment?

The Hon. P. MALINAUSKAS: My advice is that the answer to that question is yes, it addresses all of their concerns to their satisfaction.

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

The Hon. R.L. BROKENSHIRE: Same here, sir.

The CHAIR: So much love within the room—it is good.

Amendment carried; clause as amended passed.

Clause 80.

The Hon. A.L. McLACHLAN: I move:

Amendment No 42 [McLachlan–1]—

Page 47, lines 14 and 15 [clause 80(1)]—Delete 'out at least once in each 12 month period.' and substitute:

out—

(a) if the child or young person, or another person who, in the opinion of the Minister, has a legitimate interest in the affairs of the child or young person, has requested the review—as soon as is reasonably practicable after the request; or

(b) in any case—at least once in each 12 month period.

Amendment No 43 [McLachlan–1]—

Page 47, after line 15—Insert:

(1a) However, the Minister need not cause a review to be carried out under subsection (1)(a) if—

(a) a review of the child or young person's circumstances has been carried out within the 12 months preceding the request; and

(b) the Minister is of the opinion that the request is frivolous or vexatious, or otherwise not made in good faith.

The current drafting of the clause states that the chief executive must cause a review of the circumstances of each prescribed child or young person to be carried out at least once in each 12-month period. The amendments provide that it cannot be later than a 12-month period, so we are keeping the 12-month outside period, but allows an earlier review if the child or young person or another person, in the opinion of the minister, who has a legitimate interest in the affairs of the child requests a review.

However, amendment No. 43 provides that the minister does not need to cause the review if a review of the child or the young person's circumstances has been carried out within a 12-month period or the minister is of the opinion that the request is frivolous or vexatious. I have just noticed, Mr Chair, that amendment No. 43 uses the word 'Minister', so I might seek to orally amend that to delete the word 'Minister' in amendment No. 43 and insert the words 'Chief Executive'.

The CHAIR: 'Minister' appears twice in (1a).

The Hon. A.L. McLACHLAN: We are talking about amendment No. 43. I will remove the word 'Minister' where it appears in (1a) and (1a)(b). I move:

That both references to 'Minister' be deleted and the words 'Chief Executive' be inserted in its place.

The Hon. P. MALINAUSKAS: On the basis of the amendments that the Hon. Mr McLachlan has just described, the government supports these amendments. The government supports the intention of the amendments and submits that there already exists capacity in the bill to have more than one review within a 12-month period due to the inclusion of the phrase 'at least once in each 12-month period'. The government will support this amendment on that basis, but notes the importance of the safeguards provided in amendment No. 43 [McLachlan-1].

This amendment, as currently drafted, contains some ambiguity as to who is considered to have a legitimate interest in the affairs of the child or young person. In order to trigger the operation of this provision, in the government's view this could include the parents or guardians from whose care the child or young person has been removed. Whether this is appropriate would depend on the circumstances of each case. Amendment No. 43 provides the necessary safeguards to ensure that this provision cannot be abused at the expense of the child or young person.

For completeness, I wish to add that there are safeguards already in the bill and other relevant statutes that will provide some comfort should there be a concern or grievance with the CE in not exercising his or her power to cause a second or subsequent review under clause 80. Clause 151 of the bill is a new and important reform which enshrines in legislation that a person who is aggrieved by a decision of the CE or a child protection officer under this act is entitled to a review of the decision under this section. Pursuant to subclause (3), on an application for review the CE may confirm, vary or reverse the decision.

Secondly, if the child or young person is being cared for in a prescribed facility, the said child or young person, or their parent or guardian, may make a complaint to the CE with respect to the care they are receiving in the facility. So, the government supports the amended amendment.

Amendment No. 42 carried; amendment to amendment No. 43 carried; amendment No. 43 as amended carried.

The CHAIR: The Hon. Mr McLachlan, are amendments Nos 44 and 45 consequential?

The Hon. A.L. McLACHLAN: Correct, Mr Chair.

The CHAIR: The next amendment is amendment No. 46, [McLachlan-1].

The Hon. A.L. McLACHLAN: I move:

Amendment No 46 [McLachlan–1]—

Page 47, after line 42—Insert:

(2a) A child or young person may, in making submissions to a panel in the course of a review, be accompanied by a support person if they so wish.

This amendment is to clause 80, which relates to a review of circumstances of a child or young person under the long-term guardianship of the chief executive. This provision talks about a review occurring at least once in each 12-month period, and the review is carried out by a panel appointed by the chief executive. The provision that the Liberal Party is seeking to insert states that a child or young person may, in making submissions to a panel in the course of a review, be accompanied by a support person if they wish. I think the logic behind this provision is self-evident and ties to the principle of the best interests of a child.

The Hon. P. MALINAUSKAS: The government opposes the amendment. The government supports the intention of the amendment, but submits that this specific amendment is of a nature and type that is more appropriately dealt with by regulation pursuant to clause 80(2)(b)(v) of the bill. Unlike amendment No. 42, there are no safeguards in this provision to ensure that it is not abused by adults who may have influence over the child or young person to attend these meetings. The government supports the position that a child or young person should be able to bring a support person if they so wish, and one of their choosing. However, it should be dealt with in regulation to ensure that there are adequate checks to promote the physical, psychological and emotional safety of the child or young person.

The Hon. K.L. VINCENT: The Dignity Party supports this amendment. We think it makes a lot of sense to give children and young people a voice in the bill, given that this is the very point of what we are discussing. I also wonder, given the minister's comments about wanting to make sure—to paraphrase what I think he was saying—that an adult is not putting a child up to making a review request, would that not be covered under the part of the amendment which says that the minister is of the opinion that the request is not frivolous or vexatious or otherwise not made in good faith? Surely, if it could be proven that an adult was exerting undue influence on a child, that would count as vexatious?

The Hon. P. MALINAUSKAS: My advice is that the vexatious provision would not apply in those circumstances due to the way the bill has been drafted or structured, hence the need to oppose this amendment.

The Hon. K.L. VINCENT: Could the minister outline the specific way in which the bill is drafted that is problematic to this idea? It would be helpful to know exactly how.

The Hon. P. MALINAUSKAS: I appreciate the chamber's patience. The advice I have received is that it relates to the amended clause 80 that has just been passed. Amendment No. 43, in the name of the Hon. Andrew McLachlan, states that the review may occur, but not if 'the Minister is of the opinion that the request is frivolous or vexatious, or otherwise not made in good faith.' So, that provision refers to the question of review, as distinct from the question of child support. The vexatious or frivolous provision only pertains to the question of the review as distinct from the child support, so that is the provision.

The Hon. R.L. BROKENSHIRE: Are we still dealing with amendment No. 46?

The CHAIR: Yes.

The Hon. R.L. BROKENSHIRE: I could not quite hear, but I believe the minister said that where the mover is putting here that, 'A child or young person may, in making submissions', which is what we are talking about right now, they were looking to put that into regulation, I understand, rather than in the act. If I heard that correctly, can the minister explain why the government thinks it is better in regulation than in legislation?

The Hon. P. MALINAUSKAS: As I mentioned earlier, we would prefer it in regulation to ensure that there are adequate checks to promote the physical, psychological and emotional safety of the child or young person. Putting those appropriate checks in place is best done via regulation.

The CHAIR: Does the Hon. Mr Brokenshire wish to indicate whether he is happy with that answer?

The Hon. R.L. BROKENSHIRE: Yes, I understand what the minister is saying, and we will be supporting the government.

The Hon. T.A. FRANKS: The Greens will be supporting the opposition amendment. This allows a child who is presenting to the panel to take a support person if they so wish. The child will not do that if they do not wish. The child has the right to pick that person—not the chief executive and not anyone else. If the child wants that person in the room to support them, the child should get that.

The government says it is worried that children will be coerced or that this support person will have undue influence if this is not in regulations. The government still has the ability to make regulations under this act in this section to safeguard that, but this guarantees the child the support person no matter what the government decides. Given that the government did not decide to let the child have the support person when it brought forth this bill, I do not trust the government to allow that to happen in the regulations.

The Hon. J.A. DARLEY: I will support the opposition's amendment.

The Hon. A.L. McLACHLAN: I am not seeking to have a debate about the drafting preferences of the government, but I would just pick up on one thing, which is the concern by the government that this person may have undue influence over the child. This is a risk that is going to take place in every consideration and every provision of this bill. I have always had confidence in a panel such as this, whether in this context or others, to determine whether a child is being unduly influenced by the person they seek to accompany them.

I do not think there is any evil in this provision and the panel will be in a position, given that they will be conducting the review, to decide whether they accept the behaviours of the person accompanying the child. Ultimately, they govern how the hearing or the review is being conducted, so I do not accept the mischief that has been indicated in the government's submissions to the chamber.

The Hon. K.L. VINCENT: Given, as has been pointed out, that the government has the ability to make and alter regulations of any act, no matter which amendments the department supports or otherwise, and given that I think I am right in saying that the minister or the government support the intent of this amendment, are they willing to give the chamber an undertaking that, no matter what happens to this amendment, particularly in the event that it does pass, they will seek to alter regulations to ensure that this applies to both the child support and the child requesting a review?

The Hon. P. MALINAUSKAS: Yes.

Amendment carried; clause as amended passed.

Progress reported; committee to sit again.

Sitting suspended from 13:04 to 14:16.

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