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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
2016-10-18 Daily Xml
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Bills

Children and Young People (Oversight and Advocacy Bodies) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 20 September 2016.)

The Hon. J.A. DARLEY (15:37): I rise in support of this bill, and am glad that the government has finally seen fit to move ahead with the proposal to introduce a commissioner for children and young people.

The suggestion to establish a children's commissioner was first made to the government by the Hon. Robyn Layton in her 2003 report. Since that time our state has had about half a dozen investigations into our child protection system in the form of parliamentary inquiries, royal commissions and coronial inquests and it is now, 16 years later, that the government has finally decided this is a matter worth taking action on.

The government may accuse the upper house of stalling its previous attempts to establish a children's commissioner; however, it is the government's unwillingness to negotiate on the matter which has resulted in its previous bill sitting on our Notice Paper for nearly two years. The people of South Australia have waited a long time for this, and it is important that we now take the time to get it right. Belinda Valentine, grandmother to young Chloe Valentine, agreed with me on this sentiment when we discussed this bill.

As I mentioned before, the government introduced another bill in 2014 which established a children's commissioner. This bill is still on our Notice Paper because there was disagreement over whether the commissioner should have investigative powers or not. Belinda Valentine, grandmother to Chloe Valentine, came out last year and strongly stated that a commissioner without investigative powers would essentially be a toothless tiger. I, and the majority of members in this chamber, supported this position.

The bill before us now has given the commissioner investigative powers; however, only if matters relate to systemic issues. The commissioner will have the power to investigate individual issues but only if they relate to systemic issues. To me this seems a bit like putting the cart before the horse.

How is the commissioner meant to know if an individual matter relates to a systemic issue if they do not investigate? It was only through investigating the matters relating to Chloe Valentine's individual case that the Coroner was able to uncover systemic issues within Families SA that caused him to describe Families SA as being broken and fundamentally flawed. Prior to this, all those involved denied that there were any issues within the agency and, indeed, supported the actions of Families SA staff.

I note that clause 12 of the bill states that the commissioner may conduct an inquiry if they suspect that the matter is of a systemic nature—that is to say that the threshold would be low enough for the commissioner to investigate individual matters if they have the mere suspicion that it may relate to a systemic issue. I would be grateful if the minister could provide details on this and clarify my understanding that a person would only have to make a complaint about a matter and accuse this of being demonstrative of a systemic problem to trigger the commissioner's ability to conduct an inquiry.

I understand that part of the reason the government did not want the commissioner to have investigative powers was that they did not want the commissioner to become a clearing house for complaints. In fact, the Premier has said on a number of occasions that Families SA is swamped with inquiries and he did not want the commissioner to be similarly swamped. I agree that we did not want the commissioner to be a clearing house, but it is important that those with concerns—and, clearly, there are many people with concerns—have a clear indication of where they need to take their complaint.

I understand that the Ombudsman will be given more powers under this bill to investigate matters and to streamline the investigation of complaints. I am advised that the government plans on having a public campaign to educate the public on where they can go with their complaints and I would like the minister to provide more details on this. In particular, I would like further information on whether this means there will be more staff for the Ombudsman or the Health and Community Services Complaints Commissioner and the budget implications for this. I would also like information on what the public campaign will entail, who it will target and the method by which the information will be disseminated.

Further to this, using the example of Chloe Valentine, can the minister provide details of where Belinda Valentine would have gone with her complaints and the exact process of how her complaint would have been handled? Would the commissioner have been able to conduct an inquiry? My office has discussed the bill at length with Belinda Valentine, who raised some issues with regard to how complainants were treated. She is particularly concerned that the commissioner has the discretion to refuse to investigate matters and that there did not seem to be any further recourse available to complainants.

As such, I will be moving an amendment to the bill which will allow persons who have approached the commissioner but whose request to investigate a matter has been declined by the commissioner to approach the minister, who can reconsider the matter and advise the commissioner. This will also ensure that, if matters go wrong in the future, the minister cannot then claim that they did not have any knowledge of the issue.

Another issue that Belinda raised was the fact that complainants were not given any response or acknowledgement of their complaint. A person who is unaccustomed to dealing with government departments may not be aware that it is best practice to take down the details of conversations, including who they spoke to and when. Belinda raised concerns that there was no paper trail to demonstrate that contact had been made with the relevant agencies. As such, I will be moving amendments which will require agencies to provide an acknowledgement of a complaint in writing. Not only will this strengthen accountability, but I believe it is a practice that should be commonplace within the public sector.

Finally, I note that the provisions in the Children's Protection Act with regard to the independence of the guardian have been removed and I ask the minister to advise why these were not carried over to this new bill. I look forward to receiving the minister's responses to the matters I have raised today.

The Hon. K.J. MAHER (Minister for Employment, Minister for Aboriginal Affairs and Reconciliation, Minister for Manufacturing and Innovation, Minister for Automotive Transformation, Minister for Science and Information Economy) (15:44): I thank honourable members for their comments and overall general support in relation to the establishment of a commissioner for all children and young people, which is a key feature of this bill.

On behalf of the government, I would like to respond to some of the various questions that were asked during the debate, beginning with the concern raised by the Hon. Dennis Hood who notes the extensive powers provided by clause 12 of the bill and is concerned that the commissioner for children and young people may, by his own volition with little justification or subject to few checks and balances, inquire into any private organisation.

As stated in the second reading, the bill was drafted with the purpose of implementing not only specific recommendations but also views expressed by Commissioner Nyland within the text of the Child Protection Systems Royal Commission report itself. I refer members particularly to page 598 of the royal commission's report where Commissioner Nyland states:

The capacity to inquire into systems should not be restricted to formal, government-based systems. It should extend to informal systems that have developed in the community, and which involve areas or issues which have the potential to have great impact on children's lives, or that may affect a large number of children.

The powers recommended are necessary for the children's commissioner to effectively perform his or her functions. Restrictions of these powers risk frustrating the commissioner's capacity and undermining public confidence in the office's overall capacity.

The extensive powers of the royal commission will not only be available to the commissioner for children and young people in undertaking an inquiry pursuant to clause 12 of the bill, which is one of many functions conferred upon the commissioner for children and young people. It is correct and intentional that these powers be able to be used with respect to government and non-government sectors that have a connection with children and young people in this state.

This connection could, for example, be a contractual arrangement between the government and a not-for-profit to recruit and train foster carers. An alternative example would be an independent, self-financed not-for-profit that provides outreach services to young teenagers. The scope of the agency's organisation and providers is vast, and the government will be seeking advice as to the appropriate method by which to identify those relevant organisations and bodies currently falling outside the scope of state authorities as defined in the bill. The appropriate place for this to be achieved is in the regulations. I am advised that there is precedent for this approach, namely regulation 19 of the Independent Commissioner Against Corruption Regulations 2013.

The parameters of an inquiry conducted by the commissioner are set out at clause 12(1) of the bill, namely the policies, practices and procedures as they relate to the rights, development and wellbeing of children and young people generally or a group of children and young people generally. The safeguards regarding the scope of the commissioner's powers whilst undertaking an inquiry are, in the government's opinion, sufficient.

Firstly, at clause 12(2) of the bill, there are three requirements that the commissioner must have regard to before undertaking an inquiry: firstly, the matter raises an issue of particular significance to children and young people; secondly, the matter is of a systemic nature, not an individual circumstance; and, thirdly, it is in the public interest to conduct the inquiry. Further, clause 15 of the bill places a mandatory requirement on the commissioner to prepare and deliver a report on the inquiry to the minister, who in turn must cause a copy of the report to be laid before both houses of parliament for scrutiny.

There is no opportunity for the commissioner for children and young people to exercise the powers set out in clause 12 without the minister or, indeed, the parliament being made aware of it. To do otherwise would be outside the jurisdiction of his or her powers. Such conduct would undoubtedly trigger clause 6(8) of the bill that allows the government to suspend the commissioner from office with the ability thereafter to remove him or her from office.

I now turn to address comments and questions from the Hon. Tammy Franks, who noted that the government received 156 written submissions from stakeholders and members of the community with regard to this bill. I seek to clarify for the purposes of Hansard that this was quoted in the second reading speech as being in relation to the government's original bill to establish a commissioner for children and young people, namely the Child Development and Wellbeing Bill 2014, not the current bill.

The government has provided the external consultation submissions that were not marked 'confidential', received in relation to the bill, to those members who have requested them. I am advised that the entirety of the bill was made publicly available through the Attorney-General's Department website on 31 August 2016, with the consultation period stretching to 15 September 2016.

The Guardian for Children and Young People has been informed that the charter of rights for the children and young people in care, which is currently prescribed in part 7A, division 3 of the Children's Protection Act 1993, has not been carried across to this bill but will be retained, as the Deputy Premier in the other place has announced. The government is in the process of drafting a new child protection act, and the charter will more appropriately be captured in that bill.

The Hon. Tammy Franks also sought clarification about the meaning of 'matters of a systemic nature'. I am advised that this term attracts no special definition for the purposes of the bill, other than its ordinary meaning. It has been noted, both in this place and in feedback received during consultation, that section 52AB of the Children's Protection Act 1993 has not been carried across to this bill.

Section 52AB currently provides for the independence of the Guardian for Children and Young People from direction of the minister and government. The independence of the guardian remains and is now reflected in clause 18(2) of the bill, which states:

(2) The Guardian is independent of direction or control by the Crown or any Minister or officer of the Crown.

This approach achieves the same outcomes as section 52AB, but is in accordance with modern drafting practices. On behalf of the government, let me be clear: there is no intention or underhand motives at play to change or water down any existing functions of the current oversight or advocacy bodies.

Members will also note that section 52B of the Children's Protection Act 1993 has not been carried across in the new bill. Section 52B states that the minister must provide the guardian with staff and other resources that the guardian reasonably needs for carrying out the guardian's functions. This was because the government had been advised that such provisions do not reflect current drafting practices, and funding of the guardian will be done through the usual appropriate processes. In any event, the government has listened to stakeholders' concerns and will be addressing this in the committee stage and reinserting the clause in the bill.

The Hon. Tammy Franks also sought clarification about the employment status of the guardian's staff and how that compares with the staff of the commissioner for children and young people in the bill and the reasons for this approach. I am advised that clarification of the employment status within the public sector is to be found in the Public Sector Act 2009, which makes provisions for employment management in government matters relating to the public sector of the state. Section 25(1) of the Public Sector Act 2009 states that:

Subject to subsection (2), all persons employed by or on behalf of the Crown must be employed in the Public Service under this Act.

I note, for the sake of completeness at this point, that the current Children's Protection Act 1993 does not make express reference to the status of the guardian's employees. Clause 19(3) of the bill confirms that the guardian is not a public servant and is therefore excluded from the Public Service pursuant to section 25(2)(p) of the Public Sector Act.

The commissioner is also excluded from the Public Service pursuant to section 25(2)(q) of the Public Sector Act, which states that he or she is:

(q) a person whose terms and conditions of appointment or employment are under another Act to be determined by the Governor, a Minister or any specified person or body;

This means that the instrument of appointment, which contains the terms and conditions, will govern their employment rather than statutory provisions set out in the Public Sector Act. As the guardian's staff do not fall into any exemptions, section 25(1) of the Public Sector Act will apply, despite not being expressly stated in the bill, in accordance with modern drafting practices.

At clause 9 of the bill it states that the commissioner may engage employees on terms and conditions determined by the commissioner. Clause 9 of the bill is consistent with and replicates the approach taken for employees engaged by the Independent Commission Against Corruption pursuant to section 12 of that act.

The Public Sector (Honesty and Accountability) Act 1995 only applies to Public Service employees and imposes duties of honesty and accountability on public sector officeholders, employees and contractors. Given the nature, role and functions undertaken by the commissioner for children and young people, it is appropriate that the duties in the Public Sector (Honesty and Accountability) Act apply. Clauses 16(14) and 9(2) of the bill ensure that these duties apply to the commissioner and his or her staff, despite not consulting public servants. With those words, I look forward to the committee stage and the passage of this bill.

Bill read a second time.

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