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Legislative Council - Fifty-Fourth Parliament, First Session (54-1)
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Children and Young People (Safety) (Miscellaneous) Amendment Bill

Second Reading

The Hon. J.M.A. LENSINK (Minister for Human Services) (15:54): I move:

That this bill be now read a second time.

I am pleased to introduce this bill to the Legislative Council, which amends the Children and Young People (Safety) Act 2017. The bill comes to the parliament at this time because since the act has commenced in its first phase, in February this year, there have been a number of real-world circumstances that prompted clarification to some sections.

The bill makes minor consequential, corrective and transitional amendments to the Children and Young People (Safety) Act 2017 and Children's Protection Law Reform (Transitional Amendments and Related Amendments) Act 2017.

These amendments are necessary for enabling the proper operation of the Children and Young People (Safety) Act 2017 when it fully commences on 22 October 2018. These include:

correcting a reference to the Marriage Act 1961 at section 18 of the Children and Young People (Safety) Act 2017;

providing for a regulation-making power to describe the circumstances in which a reunification assessment is not required under section 50(4) of the Children and Young People (Safety) Act 2017;

clarifying that the information disclosure provisions at section 142 of the Children and Young People (Safety) Act 2017 also apply to information gathered under the Children's Protection Act 1993;

clarifying that where a child is removed pursuant to section 41 of the Children and Young People (Safety) Act 2017 and cannot be returned home or into the care of another person, the child will remain in the chief executive's custody until the end of the fifth business day following the day on which the child was removed;

amending section 92 to enable the status quo to be maintained for long-term guardians who are currently responsible for determining contact arrangements for children in their care;

amending section 95 to broaden the scope of people who may apply to the contact arrangements review panel;

amending section 161 to allow the chief executive to refer money received on behalf of children and young people to the Public Trustee to administer until the child or young person attains 18 years of age;

amending schedule 1 of the Children and Young People (Safety) Act 2017 to allow for the staged repeal of the Children's Protection Act 1993. This is necessary to ensure that the current regime for screening people who work with children in South Australia as set out in the Children's Protection Act 1993 can continue until the commencement of the Child Safety (Prohibited Persons) Act 2016;

providing transitional arrangements for custody and guardianship orders made pursuant to section 38 of the Children's Protection Act 1993; and

providing transitional arrangements concerning the management of children's money.

These technical and transitional amendments will ensure a smooth transition from the Children's Protection Act 1993 to the Children and Young People (Safety) Act 2017 from 22 October 2018.

Minister Sanderson has provided her commitment to review the Children and Young People (Safety) Act 2017 once it has been in operation for 12 months. As a member of the cabinet government I also make that commitment in this place. This is expected to be started in October 2019. We are therefore not seeking to make any substantive policy changes to the act at this time. These amendments are simply about enabling the operational intent of the act to be realised.

I note that an amendment has been filed on behalf of the Labor Party. The Minister for Child Protection has received advice from both the South Australian Council of Social Service (SACOSS) and The Law Society of South Australia advising that neither organisation is supportive of that amendment.

I would also like to address the time frames, and deadline of 22 October 2018. Many staff on the frontline of child protection have been preparing and training for the commencement of phase 2 of the act, which is set to commence on this specific date of 22 October. Delay to this commencement would prolong the full implementation of the Children and Young People (Safety) Act 2017.

It is therefore the hope of the government that this bill goes through without amendments so as to avoid any further unintentional consequences. I commend the bill to the house and seek leave to have the explanation of clauses inserted into Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Children and Young People (Safety) Act 2017

4—Amendment of section 18—Meaning of at risk

This clause corrects a typographical error in the reference to the Marriage Act 1961 of the Commonwealth.

5—Amendment of section 43—Custody of removed child or young person

This clause inserts a new subsection (2) into section 43 of the principal Act. That new subsection clarifies that the Chief Executive (CE) may exercise powers under the Act in respect of children and young people delivered into the care of another person as if the CE had custody of them.

6—Amendment of section 50—When application can be made for Court orders

This clause amends section 50 of the principal Act to enable the regulations to exclude the need for the CE to assess whether a reunification is likely in specified circumstances when applying for prescribed Court orders.

7—Amendment of section 59—Onus on objector to prove order should not be made

This clause amends section 59 of the principal Act to allow the regulations to exclude certain kinds of application from the circumstances in which the onus of proving a matter is reversed.

8—Amendment of section 90—Long-term care plan to be prepared

This clause repeals section 90(3) of the principal Act, which is to be relocated as section 91(2a).

9—Amendment of section 91—Chief Executive to apply to Court for order to place child or young person under long-term guardianship

This clause inserts new section 91(2a) into the principal Act, and is simply a relocation of what was previously section 90(3).

10—Amendment of section 92—Application of Part

This clause inserts new section 92(2) into the principal Act. The proposed subsection excludes the specified children and young people from being the subject of contact arrangements determined by the CE.

11—Amendment of section 95—Review by Contact Arrangements Review Panel

This clause replaces section 91(1) of the principal Act to extend the persons who may seek review of a determination of the Chief Executive in respect of contact arrangements.

12—Amendment of section 121—Interpretation

This clause makes a consequential amendment of section 121 of the principal Act to reflect the replacement of the Children's Protection Act 1993 by Children and Young People (Safety) Act 2017.

13—Amendment of section 142—Disclosure of information

This clause makes consequential amendments to section 142 of the principal Act to reflect the replacement of the Children's Protection Act 1993 by Children and Young People (Safety) Act 2017.

14—Amendment of section 161—Payment of money to Chief Executive on behalf of child or young person

This clause substitutes subsections (2), (3) and (4) of section 161 of the principal Act to reflect a shift in who holds money on behalf of children and young people in care to the Public Trustee.

15—Amendment of Schedule 1—Repeal and related amendment

This clause amends clause 2 of Schedule 1 of the principal Act to enable the specified provisions to be repealed before the complete repeal of the Children's Protection Act 1993.

Schedule 1—Related amendments and transitional provisions etc

Part 1—Amendment of Children's Protections Law Reform (Transitional Arrangements and Related Amendments) Act 2017

1—Amendment of section 12—Transitional provisions—foster parents

This clause amends section 12 of the principal Act to make clear that approved carers under the Children and Young People (Safety) Act 2017 are exempt from the specified provisions of the Child Safety (Prohibited Persons) Act 2016. This reflects the earlier commencement of the Children and Young People (Safety) Act 2017.

2—Amendment of section 13—Transitional provisions—licensed foster care agencies

This clause amends section 13 of the principal Act to make clear that licensed foster care agencies under the Children and Young People (Safety) Act 2017 are exempt from the specified provisions of the Child Safety (Prohibited Persons) Act 2016. This reflects the earlier commencement of the Children and Young People (Safety) Act 2017.

3—Amendment of section 14—Transitional provisions—licensed children's residential facilities

This clause amends section 13 of the principal Act to make clear that the holder of a license to maintain children's residential facilities under the Children and Young People (Safety) Act 2017 is exempt from the specified provisions of the Child Safety (Prohibited Persons) Act 2016. This reflects the earlier commencement of the Children and Young People (Safety) Act 2017.

4—Insertion of section 23A

This clause inserts a new section 23A into the principal Act, continuing the placement of a child or young person by the Minister under the Children's Protection Act 1993 as a placement of the child or young person under section 77 or 84 of the Children and Young People (Safety) Act 2017 (as the case requires).

5—Insertion of section 26A

This clause provides that proceedings commenced under the Children's Protection Act 1993 but not determined before the specified date will continue as proceedings commenced under Chapter 6 of the Children and Young People (Safety) Act 2017.

6—Insertion of sections 31A and 31B

This clause inserts new sections 31A and 31B into the principal Act as follows:

31A—Certain orders under section 38 of repealed Act to continue as orders under Children and Young People (Safety) Act 2017

This section continues the specified orders of the Court under the Children's Protection Act 1993 as orders made by the Court under section 53 of the Children and Young People (Safety) Act 2017.

31B—Certain orders under repealed Act to continue as interim orders under Children and Young People (Safety) Act 2017

This section continues the specified orders of the Court under the Children's Protection Act 1993 as interim orders made by the Court under section 53 of the Children and Young People (Safety) Act 2017.

Part 2—Transitional provisions etc

7—Moneys held on behalf of child or young person

This clause provides that certain money received by the CE prior to the commencement of this measure and held on behalf of a child or young person will be taken to have been received, and must be dealt with, under section 161 of the Children and Young People (Safety) Act 2017, as amended by this measure.

The PRESIDENT: Minister, to allow the Hon. Ms Franks to speak without any doubt, can you move contingent notice of motion No. 1?

The Hon. J.M.A. LENSINK: I move:

Contingent notice of motion No. 1.

Motion carried.

The PRESIDENT: By way of explanation, you cannot normally follow on after a second reading, but it has been on the Notice Paper, so there was some doubt. The Hon. Ms Franks now has the call.

The Hon. T.A. FRANKS (15:59): I thank you, Mr President, for accommodating what I find are quite extraordinary provisions where we are faced with a bill that needs to be rushed through in, lo and behold, child protection because, of course, we again have not bothered to get the basics right. I rise on behalf of the Greens to speak to the Children and Young People (Safety) (Miscellaneous) Amendment Bill 2018, introduced in the other place by the Minister for Child Protection and introduced in this place today by her counterpart. This bill:

corrects references to the Marriage Act 1961;

provides for regulation-making powers to describe the circumstances in which a unification assessment is not required;

clarifies that the information disclosure provisions at section 142 of the Children and Young People (Safety) Act 2017 also apply to information gathered under the Children's Protection Act 1993;

clarifies that, where a child is removed under the act and cannot be returned home or into the care of another person, the child will remain in the chief executive's custody until the end of the fifth business day following the day on which the child was removed;

amends section 92 to enable the status quo to be maintained for long-term guardians who are currently responsible for determining contact arrangements for children in their care;

amends section 95 to broaden the scope of people who may apply to the contact arrangements review panel;

amends section 161 to allow the chief executive to refer money received on behalf of a child or young person to the Public Trustee to administer until the child or young person is 18;

amends schedule 1 of the Children and Young People (Safety) Act 2017 to allow for the staged repeal of the Children's Protection Act 1993;

provides transitional arrangements for custody and guardianship orders made pursuant to section 38 of the Children's Protection Act 1993; and

provides transitional arrangements concerning the management of those children's moneys.

I note that, on receipt of this bill in this place today, as yet there is no Law Society advice on this bill. Perhaps it is in preparation. Perhaps it was requested, and it has taken them a long time to prepare. Certainly, while the Law Society has provided 35 pieces of advice of use for parliamentarians since the 17 March state election poll, there is no advice on the Law Society website with relation to this bill. This is an incredibly disappointing situation because, yet again, a government has brought a child protection bill into this place without proper consultation.

I remind the minister in the other place of her words when she passed the predecessor of this bill with amendments made by this council. She particularly wanted to thank for their hard work the Law Society of South Australia, the Australian Medical Association, the South Australian Council of Social Service, the Child and Family Welfare Association of South Australia, the Council for the Care of Children, the Youth Affairs Council of South Australia, the Child Protection Reform Movement and Connecting Foster Carers, who had spent many hours deeply involved with this piece of legislation, which, as she stated at the time in the other place, had been ongoing for some months. The now minister, then shadow, noted at the time that:

It is an important piece of legislation, so it was worth testing and trying to make as many amendments as was possible.

She noted:

…the opposition did feel, and still feels, very strongly that the best interests of the child should be the paramount consideration, in line with the United Nations Convention on the Rights of the Child and also in line with the majority of stakeholders' views…

She noted that it was lost by one vote in the Legislative Council, and went on to say:

It was very close. It was a good debate and lots of points of view were put across, but we are in opposition and we have to accept these things.

She went on to also note:

However, we—

meaning the then opposition, now government—

have come to a position on the bill. I call on the government—

the then Labor government—

to urgently bring before parliament the amended Families and Community Services Act outlining its early intervention and prevention initiatives, as was promised to the stakeholder group. That does form a very important part of the prevention and intervention. The bill we have now is really at the critical end where the child is removed, but we have too many children being removed and more work needs to be done with the families to stop the children being removed and allowing them to stay safely with their families.

What has changed? Of course, the government is now the opposition, and the opposition is now the government, but what has remained the same is a lack of consultation when it comes to these very important pieces of child protection legislation. Certainly, on behalf of the Greens, I commenced contacting those very stakeholders, whom clearly the minister is very familiar with and has the contact details for, because in opposition she did not hesitate to get in touch with them. I note the words of Ross Womersley, the CEO of SACOSS, who stated this in this past week:

We are disappointed that the government has not taken the opportunity to fix some of the issues they supported in opposition and committed to prior to the election, for example the paramountcy of 'safety' versus 'best interests' among other issues.

The Minister has argued that she wants the current legislation to be embedded for at least 12 months before then looking to make any changes. In contrast we advocated for making needed amendments immediately so poor practices did not become embedded. I think there is some expectation that tabling additional (even if needed) amendments forward at this time would result in unacceptable delays…

Since the governments election we have also been disappointed to find that they have not proceeded and in fact have seemingly deferred any consultation regarding a prevention and early intervention Bill to complement the Safety Act. We are concerned that this is just the first step in not proceeding to bring a Bill forward at all despite the promises pre-election.

I am not as disappointed or surprised, perhaps, as SACOSS, and I do expect the government to make commitments and to ensure that they have not abandoned that early intervention bill. The Greens will be seeking evidence and assurances of that in this debate. I note that the Liberal government, when in opposition, had some very persuasive arguments. In fact, they noted at the time:

We also have the Nyland findings that have influenced the thinking of the Liberal Party and have a golden thread of best interests through them. For the benefit of members of the chamber, the Liberal Party has had a considered journey coming to this point. We understand that any drafting of a bill like this will have significant implications, but I think any formulation will present the department with some difficulties. However, we feel that ours is the best option going forward, in respect of the protection of children in this state.

Mr President, those were fine words, and they were your words. Sadly, at the moment, you are not in the Liberal party room to deliver those particular words, but there is another member whose words at the time were:

…I remind the chamber that this government has an appalling record in both legislation and action of protecting children from harm. I would also respectfully suggest to the minister that the vagueness of this meaning of 'harm' is no more vague than 'best interests', but at least the United Nations has said, 'Let's focus on the best interests of the child.'…The Layton report has said, 'Let's focus on the child protection review.' I respectfully suggest the government is misquoting the Coroner in suggesting that he demurs from them. Let me take the opportunity to read in another quote from section 21.5 of the Coroner's report:

It must be a standard approach for workers to always act in the child's best interest…

The Coroner did not say, 'always to protect the child from harm'. The fact of the matter is, children face some potential benefits which must be protected in the context of administering these acts.

Again, on this issue of the vagueness of the provision, it is the first that I have heard that somehow 'the best interests' was a vague phrase that should not be used. With all due respect to the rebuttal of the minister [the then minister], I did not reference the Family Law Act. I could actually reference a whole series of state acts. The legislation in relation to the Guardian for Children and Young People relates to 'best interests'. This is not a vague notion which is the subject of opposition hallucinations; it is a well-established principle in international, national and state law. I believe that it is much better informed than what the minister suggests is clear, which is the phrase 'to ensure that the children are protected from harm'.

Those were the words of the Hon. Stephen Wade, now the Minister for Health and Wellbeing, who is indeed in the party room of the Liberal government that has brought this bill before us. This bill, of course, does not seek to ensure the best interests of the child are paramount, and the Greens will be moving an amendment to that effect and having that debate because if the minister expects us to let the Liberal opposition, when they enter government, forget the work that they did and the promises they made to stakeholders before the election, then they have another thing coming.

I also note that the Labor opposition has moved an amendment, and has sought Law Society advice. Indeed, I have pieces of correspondence from not only the Law Society but Uniting Communities and others. We will get into an investigation of that reunification clause, but I also note that this was presented in the other place as a rats and mice bill, somehow a technical bill, and yet the subject of that particular reunification clause has proved itself to be less than simply a technicality, and certainly something that will have grave implications if we do not get it right.

This is a lost opportunity to ensure that the bill that we move forward with this year is the best bill it could be. By not even seeking Law Society advice, I find that the minister has let this parliament down, has let herself down, and has let potentially the children of this state down. The Greens stand today ready to debate this. We will not hold it up unnecessarily, but we will ring alarm bells that we still do not have an early intervention bill before this place. We will ring alarm bells that this bill came before us without even the basics of Law Society advice.

We already got it badly wrong and we have a fix-up bill before us because there were so many errors the last time this particular piece of legislation was rushed through this place. Why are we not learning from the mistakes of the past and correcting them? This bill, I believe, does put the cart before the horse. Early intervention is key, and it is an absolute indictment that we still do not have an early intervention bill before this place. With those few words, the Greens will support the second reading of the bill. We do look forward to a robust committee stage.

I echo the questions that I forwarded to the minister's office last night, who has been consulted with regard to the drafting of the bill before us. When were the Law Society contacted about it and what is their advice on the bill? What stakeholders have provided feedback on the bill? Where is the early intervention bill and has consultation proceeded on that? Is there a draft? With regard to the proposed regulations for the reunification assessments, can all members of parliament have a copy of those? I understand that the shadow minister was provided a copy that was quickly whisked away before she could actually leave with it in her hands, so that is just not good enough in this place as a process.

Yet again, we are being asked to rush through a bill, and I would be a lot more comfortable if there was actually clear evidence that the stakeholders had had a say and that we were not, yet again, setting up something without even the basics of Law Society advice to ensure that we are not setting up a system to fail. We have to get it right with child protection and, sadly, the minister's own words here in opposition have not been reflected by the actions of the government.

Debate adjourned on motion of Hon. I.K. Hunter.

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