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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
2017-07-04 Daily Xml
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Children and Young People (Safety) Bill

Committee Stage

In committee.

(Continued from 22 June 2017.)

Clauses 9 to 11 passed.

Clause 12.

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

Amendment No 3 [McLachlan–1]—

Page 11, after line 9 [clause 12(2)]—Insert:

; and

(c) achieving the objects set out in the preceding paragraphs (as well as reducing the incidence of the removal of Aboriginal and Torres Strait Islander children and young people) by encouraging Aboriginal and Torres Strait Islander people, their children and young people and State authorities to act in partnership when making decisions about the placement of Aboriginal and Torres Strait Islander children and young people under this Act.

This is a clause, as I indicated, that we are inserting having regard to the submission of the stakeholders. It is the stakeholder group submission that says that we are already failing to meet the obligations of the Aboriginal placement principle by placing unacceptably large numbers of Aboriginal children and young people outside kinship and without connection to culture and family. This clause, in effect, is designed to encourage the Aboriginal and Torres Strait Islander people to act in partnership, or the government to act in partnership, or the state, when making decisions regarding the placement of children of that kin.

The Aboriginal placement principle runs much deeper than the placement practices. It requires a level of partnership and making decisions about the best interests of Aboriginal and Torres Strait Islander children and young people within their communities. As I indicated, the genesis of this amendment, as with many of the other amendments that the opposition is putting forward, comes from the group of stakeholders that the Liberal Party have consulted and have placed weight on their submissions.

The Hon. P. MALINAUSKAS: The government opposes the amendment. The amendment seeks to amend clause 12(2) of the bill, which addresses Aboriginal and Torres Strait Islander child placement principles by inserting an additional paragraph that seeks to enshrine the participation of Aboriginal and Torres Strait Islander people in placement decisions made under this legislation. The government is opposed to this amendment as it adds nothing further to the principles as currently drafted. I draw members' attention to subclause (2)(b), which clearly states that one of the two objects of the principles set out in clause 12 is to enable Aboriginal and Torres Strait Islander people to participate in the care and protection of their children and young people.

Further, existing subclause (3)(c) expressly and in detail sets out the participation that Aboriginal and Torres Strait Islander people are to have, namely, in the form of a recognised Aboriginal or Torres Strait Islander organisation, as declared in the Gazette by the minister.

The Hon. T.A. FRANKS: The Greens indicate we will be supporting the opposition amendment. We note with interest that the opposition amendment is indeed supported by many in this sector who live and breathe child protection. The government's argument that it adds nothing is not an argument to oppose; it is an argument for a government that did not listen to this sector in the first place.

The Hon. R.L. BROKENSHIRE: As I read this, all that the opposition amendment from the Hon. Andrew McLachlan is doing is adding an additional clause, which actually strengthens the objects around Aboriginal and Torres Strait Islander people and state authorities acting in a partnership when they make decisions about the placement of Aboriginal or Torres Strait Islander children and young people under this act.

I heard the minister's explanation, but it does not really make sense to me that, if the government is focused—and I take it and trust that they are—on both the interests and the safety of the children, there is something wrong with strengthening a clause simply to give more consideration and integration in the placement decisions in a partnership model. What is wrong with that? Or is it just that we are supposed to not move any amendments and just rubber stamp? I cannot see what is wrong with strengthening a clause.

The Hon. P. MALINAUSKAS: The government is of the view that the clause as it is drafted provides an appropriate level of protection in terms of the objects that we are all collectively trying to seek. We believe that what is currently written in the bill represents a reasonable accommodation of our desired objective.

The Hon. R.L. BROKENSHIRE: This is a very sensitive area, generally speaking, and particularly when you have an historical look at the situation around what has happened with Aboriginal and Torres Strait Islander children and misplacement and other issues in the past. Based on not being confident that there is any reason that the government has given to not support this amendment, the Australian Conservatives will support this additional clause to strengthen the partnership, deliberation and consideration of the welfare of the child and the family who are involved in a tragic situation, as they all are, where there has to be some placement. So, we will support the amendment.

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

The Hon. A.L. McLACHLAN: Before we put the amendment to the vote, I would like to respond to something the minister has said in relation to the effect of the clause—because this debate is going to come up again in respect of this bill—which is its symbolism, the symbolism and the intent, which is also a clear expression of the intent of this parliament.

As the minister has expressed, the drafting of this provision may or may not, but is unlikely to, add much more to the objects, but it adds so much to those who will be applying this bill if it becomes law. Part of the problem, as expressed in many of the reviews and inquiries, has been that the act itself has been unclear for those bureaucrats applying it, or indeed public servants who are seeking to apply it.

It is not just the intent. It is a specific approach by the Liberal Party in relation to this bill to set out in no uncertain terms the legislative framework that it wishes, accompanied by a symbolic intent of how it wishes the children of South Australia, no matter their origin or their location in the state, to be treated going forward. I will address similar issues to that in respect of other amendments.

Amendment carried; clause as amended passed.

Clause 13.

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

Amendment No 4 [McLachlan–1]—

Page 12, line 24 [clause 13(3)]—Delete 'or the Chief Executive'

I alert honourable members that this will be a test clause, because there are a number of other amendments that seek to make the minister primarily responsible for the outcomes of the effect of this act, as opposed to the chief executive. As the bill was drafted, the minister is removed from much of the responsibility as expressed in the bill. In a consultation with stakeholders, they have made it very clear that they wish the minister to be expressed throughout the bill as having responsibilities. This is not just symbolic, but it sends a clear message that the minister responsible for the welfare of children is clearly accountable for the same.

Much has been said in another context regarding ministerial responsibility. The Liberal Party has a different view on ministerial responsibility as expressed by the government in relation to Oakden. Therefore, the Liberal Party does not resile from these amendments. We think they are important. The minister will in due course delegate responsibilities, but I think it is paramount to send a message to the community, if this bill should pass, that the parliament expects that the minister in name, in one of the most significant bills regarding the removal of children, is the primary responsible person.

The Hon. P. MALINAUSKAS: This amendment is consequential to amendment No. 16 and also amendment Nos 23 and 25 inclusive, which are the chief amendments that the opposition has filed to reinstate the status quo under the Children's Protection Act 1993, that a minister remain vested with the guardianship and custody of children and young people who are at risk of harm.

The government opposes the amendment, and all other related consequential amendments that seek to reinstate the minister in this capacity. Given the nature and extent of the legislative reform proposed in this bill, the government is of the view that it is more appropriate that the functions of guardianship and custody be undertaken by the chief executive, as is the approach taken by other Australian jurisdictions.

The government acknowledges that divesting the minister of guardianship and custody functions in this bill is a reform that does not arise from a specific recommendation of the Child Protection Systems Royal Commission report. It was determined, in developing a response to certain recommendations of the Child Protection Systems Royal Commission report, that the repeal of the Children's Protection Act 1993 and the drafting of a new bill was the opportune time to consider other reforms that may be needed.

Notwithstanding this, the government submits that divesting the minister of guardianship and custody functions, and conferring this upon the chief executive, is in fact consistent with the royal commission's recommendation No. 9 to enable decision-making to occur at the closest possible level to the child. The opposition amendment seeks to undermine that and return to the status quo of the Children's Protection Act 1993. For these reasons, I urge members to oppose this amendment and those consequential to it.

The Hon. R.L. BROKENSHIRE: I have a question of the mover of the amendment. We acknowledge that, ultimately, these children are under the guardianship of the minister. At the moment, I think we have something like around 3,000 children and, unfortunately and sadly, they are growing in number. Ultimately, the responsibility comes back to the minister, but from a practical viewpoint I ask the mover how he sees removing—it says 'of the minister or the chief executive'—as I understand it, the chief executive?

Does he see that as being an unworkable impost on the minister, because the minister ultimately will be responsible? It is law that he is the guardian of the children, but there are the practical issues as well around logistically managing this. I ask the mover whether he could go into a bit more detail on what he really wants and means by removing that.

The Hon. A.L. McLACHLAN: I thank the honourable member for his question. The minister, as I understand in my preparation for the debate, will be able to delegate. So, in essence, the minister will not be overburdened, but it is the view of the Liberal Party, informed by the stakeholders, that, leaving aside the symbolism, we have had a situation where we have had Oakden and a public debate about what ministers should and should not do. The current government position is that ministers should sit around and wait for the problem to come to them, rather than going out and seeing whether there is a problem and seeking to solve the same.

Therefore, given the criticality of this bill, and given the litany of sad stories that have come from this part of our community and the response of the government—we must realise that we have had reviews, inquiries and almost a royal commission—it is our view that the bill should express, where it can, that the minister primarily is responsible. It is up to the minister to decide how they delegate that. At the end of the day, they will be responsible for the way they delegate and how they manage those delegations.

The Hon. R.L. BROKENSHIRE: Further to that, I take your point to an extent, but I would think that, if a constituent comes to us and reports that a situation is of concern to them, then we are all duty bound to make sure we follow that through, be it to the minister, the CEO or both. The minister is ultimately duty bound, too, but are we actually putting an impost there, directly or indirectly, on a minister, which then makes the job more difficult in what we want him to do, namely, to improve the safety and interests of that child? The reality is that, when you are a minister, you have to rely, ultimately, on your CEO.

The CEO is there on a day-to-day basis and sees the lot and gets a lot of the reports. You may well be in government in March, who knows, but has it been thought through that this is actually a little unfair on the minister? We are not talking about taking away the charter and all of that, but it is pretty straight and hard on the minister, so I just ask that question.

The Hon. A.L. McLACHLAN: I will answer it in two parts. The first is that, obviously, these amendments have been approved by our party room and put to our party room by the shadow minister, so I can assure the honourable member that the shadow minister does not resile from these amendments and the impact that they may have on that person should the Liberal Party form government in 2018.

I come back to the second part to respond to the question of whether there is an unfair impost on the minister. My response to that is, as I said in response to the honourable member's previous question, that we are not dealing with a usual bill. We are here from a long and winding road of misery. This is not just an ordinary bill, nor will be its companion bills that are coming. We have seen significant moral failings and, therefore, that has informed the Liberal Party's thinking and has made it amenable to the suggestions of both the Law Society and other key stakeholders that this is an important amendment, not just symbolically but to hold the minister to account.

As I said, they can delegate. I can understand the government's argument in one sense in that they want the chief executive to run it and that is, in reality, what is going to happen, but this bill symbolically holds the minister to account. There will be no escaping a situation in child protection or child safety issues that is similar to Oakden—we have had it in Oakden. We have had reports and reviews not brought to the attention of the public and ministers doing nothing. That is the reason why this is going in. This is a burden and the minister must take it; otherwise, the protection of the vulnerable may well be an ongoing issue for this state. We need to take corrective action here and now.

The Hon. T.A. FRANKS: I wish to indicate that the Greens will not be supporting the opposition's amendment. In our briefings, we asked questions similar to those the Hon. Robert Brokenshire has just been asking of the opposition, for justification of why we should support this amendment.

Political polemics about Oakden and conflating issues do not provide the answer that we are seeking to give any support to this particular amendment. Having said that, we are also cognisant that, in modern legislation and across the country, it is the chief executives who have taken on this position, and we find it curious that any member of this chamber would want to impose another level of bureaucracy that would slow down any processes and give rise to any confusion about who is responsible here.

The Hon. J.A. DARLEY: I indicate that I will be supporting the opposition's amendment and all similar amendments.

The Hon. R.L. BROKENSHIRE: I thank the mover for answering my questions, but I advise that, whilst the Australian Conservatives are strong on the charter and strong on the review and everything else, if they get there, they will find that they will not want that in the act, and I will not be supporting it.

The committee divided on the amendment:

Ayes 8

Noes 9

Majority 1

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

Amendment thus negatived; clause passed.

Clause 14.

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

Amendment No 5 [McLachlan–1]—

Page 13, lines 26 and 27 [clause 14(1)(c)]—Delete 'and support evidence-based programs delivering preventative and support services directed towards strengthening and supporting families' and substitute:

, support and adequately resource evidence-based programs delivering preventative and support services directed towards strengthening and supporting families, reducing the incidence of child abuse and neglect

This amendment is based on advice from the stakeholders in submissions. Recommendation No. 49 of the Nyland report indicated that longer term funding arrangements for prevention and early intervention services should be instituted. It adjusts the wording in clause 14 for the additional functions of the minister to not only promote and support evidence-based programs but also to promote and support and adequately resource evidence-based programs. It does not bind the minister or the Treasurer on how much is going to be spent. It simply focuses the mind of the minister that one of their responsibilities is to adequately resource.

We do need a refocusing on what we are spending in relation to this area of community service. We have also put in 'reducing the incidence of child abuse and neglect', maximising the wellbeing of children and young people. It is a recasting of that clause. It is to focus the mind of the minister to accommodate the thoughts of the Nyland royal commission. It was strongly supported by the stakeholders, whom I identified early in the committee stage and also in my second reading.

The Hon. P. MALINAUSKAS: The government opposes the amendment. This is the first of a series of amendments the opposition has filed that are presuming to address ongoing concerns by certain interest groups that early intervention has not been adequately addressed by the government, either in the bill or generally. Specifically, this amendment seeks to further amend clause 14 of the bill, which currently sets out the additional functions of the minister to insert a requirement that programs be adequately resourced and that the set programs be limited to reducing the incidence of child abuse and neglect.

The government opposes this amendment on the basis that it is not the appropriate legislation for this provision. As the Attorney-General made clear in the other place, the Child Protection Systems Royal Commission report made a range of recommendations targeted at improving wellbeing and early intervention of children and young people at risk. Some of these recommendations did require law reform but most did not. The absence of extensive early intervention measures does not mean that early intervention and wellbeing are not being addressed.

On behalf of the government, I invite members to review the government of South Australia's response to the child protection royal commission report for further information to this point. I wish to remind members that the government is firmly of the view that it is not the objective or purpose of this bill to provide for extensive measures addressing wellbeing and early intervention for children and young people at risk, and separate work is being undertaken to address this by the Department for Education and Child Development.

Irrespective of this, the government did file amendments in the other place to seek to address the ongoing concern voiced against certain interest groups, resulting in the inclusion of clause 9 in the bill, which places an obligation upon state authorities to have regard to early intervention as a priority. Furthermore, the government filed amendments to expand the functions of the minister at clause 14 of the bill to enshrine in legislation the minister's responsibility to contribute, advocate and promote wherever possible the wellbeing and early intervention of children and young people at risk.

These amendments recognise the minister's important role in participating in a cross-government effort in early intervention and prevention but not resting all of it upon the minister responsible for the Department for Child Protection. For these reasons, the government opposes this amendment.

The Hon. T.A. FRANKS: The Greens rise to support this amendment. We find it extraordinary that the government would argue that this is not the place for this amendment. The difference here is that the opposition seeks to ensure that these evidence-based programs and preventative support services that strengthen and support families and reduce the incidence of child abuse and neglect are adequately resourced. That is the difference between the government's wording and the opposition's wording. If you are seriously arguing that this chamber should not accept that they be adequately resourced, I think that the South Australian people would have other ideas than those that the government is putting forward as an argument.

The Hon. J.A. DARLEY: For the record, I will be supporting this amendment. It is essential that the government resources the services properly.

The Hon. R.L. BROKENSHIRE: I think it is important at this stage to get some comments on the record from the government regarding this particular clause, and then I would like to indicate what the Australian Conservatives will be doing with respect to the amendment of the Hon. Andrew McLachlan. From what I understand, it is possible that we may be the only party that ultimately supports the government at the third reading, but I am already on the public record indicating that the Australian Conservatives will be supporting the third reading, providing there is some reasonable amendment to the bill that would make it a better bill.

I say to the minister right now that this is one tool. There is an argument through the sectors that when Justice Nyland actually submitted her royal commission report, she did not necessarily say that she wanted a brand-new bill. She actually made recommendations on how you could improve the situation in relation to the safety, interests and wellbeing of young people at risk, and there has been a lot of argument that this bill actually did not pick up some of the good parts of the legislation that is currently the law.

What I am concerned about, and what I would like the minister to comment on to the council, is that when we meet with interest groups and key stakeholder groups we are often told that there will be another bill that will be focused on assisting families, on early intervention and on proactivity. It is fair to say that this bill is more about when the ambulance is at the bottom of the cliff, rather than the ambulance being on top of the cliff in case someone falls off. It is a reactive bill, and it is fair to say that in all respects.

I understand that we already have per capita the highest number of children under the guardianship of the minister of any state in Australia and, whilst we know the good intent of the government in relation to this bill, we know that there must be much more comprehensive and broad opportunities for early intervention, prevention and support.

The minister may not be in a position to answer this right now but, through the minister, I would like to ask the Hon. John Rau, who introduced the bill, in his responsibility roles for child safety and protection: would the government consider an urgent round table to fast-track this other bill that it has, I understand, said it will bring in regarding assistance to families—in other words, early intervention?

After Thursday, we actually only have a few sitting days. Then we get up for the winter recess and come back on 26 September. If the government was serious about, parallel to this, running a round table of key stakeholder groups, I believe they would be in a position to have the next bill ready when we come back at the end of September. The reality is that we will probably only have a couple of months of sitting. I doubt that we will sit the optional sitting week in December this year. I will be very surprised—unless there is something that is really good for the government, and then, rest assured, we will be sitting, but if it is not all that good, then we will not be sitting.

What I am saying is that we are not going to have a lot of time. Then, we are going to go to an election, and then effectively the parliament will not be in a position to move any legislation until probably May. Depending on the outcome of the election, it could easily be May. So, we are looking at a very, very long time before we can actually do the proactive work with another piece of legislation to assist families, namely, through early intervention and support.

My question to the minister is: where is the government up to with that side of the new bill? Can the minister assure the council that that is also a priority as much as this is, because there are people out there with bona fide reasons saying that this is more about the government getting something through so that when they go to the next election they can actually say to the people, 'We've done something very quickly when it comes to this issue of child safety as a recommendation of the royal commission of Justice Nyland,' but then we have not gone any further than that to actually get proactive on the early intervention and so on. My question, first of all, to the minister is: what is the government's plan?

The Hon. P. MALINAUSKAS: I thank the honourable member for his question. It is a good one, and a fair and reasonable one. The government takes seriously its commitment that it has already made in this respect and the minister responsible, being the Minister for Education, has already met with key players, including SACOSS, on this issue and has also met with parliamentary counsel. This is something the government is keen to progress as quickly and as reasonably as it can and, of course, is committed to putting together some legislation as quickly as it can practically do so.

The Hon. T.A. FRANKS: Previously, when we were in the committee stage of this bill, the government indicated that they had met with the stakeholders, including SACOSS, in the previous month. Have they since met with the stakeholders?

The Hon. P. MALINAUSKAS: The answer to that question is no. I am advised the reason for that is that when the first meeting took place those present agreed that, in order to progress it, the next stage would be that parliamentary counsel would draft a bill, which could then be brought back to those stakeholders to progress its development.

The Hon. T.A. FRANKS: Have those instructions been given to parliamentary counsel?

The Hon. P. MALINAUSKAS: My advice is that the answer to that question is yes, parliamentary counsel were indeed present at one of those meetings.

The Hon. R.L. BROKENSHIRE: There has been some expression in the second readings that I have heard from colleagues where they said that there was not enough consultation on this legislation, particularly with what we would call a round table of key stakeholder groups, and that has come back to the Australian Conservatives as well from the sectors.

So, can the minister firstly reassure the council that, once this draft is done for the early intervention proactive intent of the next bill to help the families, there will then be proper consultation and that the round table will be included in the consideration of and deliberation on that so that it is transparent and open? Can the minister assure us of that? Secondly, I still need an answer: is it the intention of the government to then get that bill through and gazetted before we rise for the end of this year?

The Hon. P. MALINAUSKAS: As I said earlier, the government is committed to this exercise, hence the meetings that have already taken place and parliamentary counsel's engagement. The government is committed to developing this bill and bringing it here as soon as it practicably can. I do not know how much clearer the Hon. Mr Brokenshire wants this to be, but the government's intention is to develop this bill and bring it to the parliament as soon as it practically can.

The Hon. S.G. WADE: I was wondering if I could explore what the minister meant when he told us that there was a meeting of stakeholders and that parliamentary counsel was present and that from that parliamentary counsel had the instructions for the bill. Does that mean that the consensus between the stakeholders and the government was so much in unison that nobody needed to write it down, and parliamentary counsel just knew?

The Hon. P. MALINAUSKAS: I might seek to clarify. I am not sure that the honourable member fully understands the intent behind what I said. What I said earlier was that there was a meeting with stakeholders—I am advised that parliamentary counsel was present—and there was agreement or consensus, I am advised, at that meeting that in terms of the process of the development of the bill the next stage should be that in order to progress discussions it would be easier to do so to have a working document (i.e. a draft bill) to discuss. So, parliamentary counsel, I am advised, is in the process of developing that, with the view of then bringing it back to stakeholders to have a further discussion.

I was not intending to suggest—in fact, I did not suggest—that somehow there was a consensus at the meeting that was informing the instructions. It was, rather, that the engagement of parliamentary counsel in the development of a draft bill, I understand, has been done as an exercise in order to progress the discussions, which I am sure the honourable member can appreciate.

The Hon. S.G. WADE: It would be fair to say that the development of child protection legislation has been some of the most passionate legislation that this parliament has had to consider. I am just a bit surprised, considering the strength of feeling that people have shown in relation to this bill and others, that there would be such unanimity that parliamentary counsel could take that on. I cannot think of any other legislation where parliamentary counsel has been the originator of the first draft, particularly on something as dramatic as this. I just want to clarify that again. Are we really saying that parliamentary counsel came out of a meeting and thought that, without instruction, they could develop legislation? I am just incredulous.

The Hon. P. MALINAUSKAS: With all due respect, I think the honourable member is trying to misrepresent what has been described as being a process with good intent. There was a meeting that took place, and the general principles and objects of what this bill would seek to achieve were more or less agreed, but of course, as the honourable member appreciates, like all these things, the devil is always in the detail, something this chamber is all too accustomed to familiarising itself with.

So, in order to progress the discussions, it was agreed that a draft bill would be put together—a skeleton bill, if you like—representing the object and intents of what the bill seeks to achieve, with a view to then bringing that back and assessing the detail to inform the process. There are a number of ways, as I am sure the honourable member can appreciate, that processes can be put in place to develop bills. The government can go about drafting a bill and then presenting it to stakeholders and saying, 'See, here you go, what do you think?' or it can engage stakeholders from the beginning and step it all through. But at some point or another, there needs to be a working document for people to contemplate.

I think that this process is a pretty familiar one: meeting with stakeholders, discussion about objects and intent, forming a more or less general view about that, and parliamentary counsel going about the business of putting that into a draft bill. From there, substantially more consultations can take place. To do it in any other way jeopardises the object that I think the Hon. Mr Brokenshire holds dear, which is actually getting a bill into the parliament before the end of the year.

The Hon. T.A. FRANKS: Was a direction given to parliamentary counsel to make sure that the bill ensures all early intervention in child protection is adequately resourced, as we are discussing in this clause?

The Hon. P. MALINAUSKAS: I was not present, but parliamentary counsel is going about the exercise. Once the draft bill is formulated, I am advised that stakeholders will be engaged with, and they can make that assessment as it is presented.

The Hon. R.L. BROKENSHIRE: We take it, then, minister, that parliamentary counsel are presently drafting a bill. I have spoken to the industry key stakeholder groups, like lots of my colleagues, and they are knowledgeable and live with all of this every day, so they know a lot more about it than any of us ever will, I suggest. They are ready to work closely and proactively with the government on this next bill.

In fact, they said to me that they think they could help to expedite it because of their knowledge and proactivity in getting this next bill drafted. I have already suggested that maybe that could all be done during the winter recess, which is about six weeks. In order for the Australian Conservatives to make a final decision on this amendment of the Hon. Andrew McLachlan, I need to know: is it the intent of the government to have the next bill through and passed before we get up at the end of this year?

The Hon. P. MALINAUSKAS: This might be an opportune time to report progress.

Progress reported; committee to sit again.

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