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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2021-05-13 Daily Xml
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Children and Young People (Safety) (Miscellaneous) Amendment Bill

Second Reading

The Hon. J.M.A. LENSINK (Minister for Human Services) (17:14): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation and explanation of clauses inserted in Hansard without my reading them.

Leave granted.

The Children and Young People (Safety)(Miscellaneous) Amendment Bill 2020 makes a number of important amendments to the Children and Young People (Safety) Act 2017.

The bill was developed following extensive consultation with a range of stakeholders and fulfils the commitment of this government to make a number of critical amendments to child protection legislation originally assented to on 18 July 2017.

The government commenced its consultation on the 12-month anniversary of the full commencement of the Act at which time stakeholders were invited to comment on:

whether the Act's guiding principles were being met

whether the Act supported the delivery of the best possible care for children and young people at risk of, and experiencing, child abuse and neglect.

Respondents included a number of government agencies, peak bodies, Aboriginal organisations and representative groups, as well as relevant advocacy and oversight bodies.

Importantly, this amendment process was targeted to progress amendments that were considered:

critical to the effective and efficient operation of the Act, and/or;

had the overwhelming support of the breadth of stakeholders, noting that a full review is prescribed under the Act for 2022.

As the government has made clear, we appreciate the advocacy of stakeholders for the bill to encompass certain further amendments which have not been included at this time.

The government has determined some of these proposals would be more appropriate to consider as part of the full review, particularly where:

there was limited stakeholder support for a particular proposal; and/or

there would be reasonable community expectation that further consultation is required to provide the government with a mandate for change.

The government is very grateful for the contribution of the stakeholders and of the Department for Child Protection in providing advice on proposed amendments.

These contributions have helped make sure that the final bill is both workable and effective in achieving our shared goal of the best possible outcomes for children and young people.

While I will not speak to the detail of the bill, I will take this opportunity to briefly highlight key amendments.

Firstly, you will see that the bill incorporates amendments that will make sure the principles already enshrined in the Act are visible in our child protection practice.

These include the principles of timely decision-making and process, of enabling greater participation in decision-making by relevant parties, and of course, ensuring all children and young people who have been taken into care are placed in a safe, nurturing, stable and secure environment.

The bill also inserts a subsection to ensure those involved in the administration, operation and enforcement of this Act, act in the best interests of children and young people.

The re-insertion of best interests has been the subject of consistent advocacy by the Minister for Child Protection, and many stakeholders.

These stakeholders share the government's view that all children and young people in care should expect that those responsible for their care have a focus on the child or young person's best interests, while maintaining safety as the paramount consideration.

The bill includes important amendments that will strengthen existing provisions relating to the Aboriginal and Torres Strait Islander Child Placement Principle.

These changes had the strong support of both Aboriginal and non-Aboriginal stakeholders and as a government we are very proud to be responsible for their inclusion.

Specifically, the bill outlines the commitment to:

fully describe each of the five elements of the Aboriginal and Torres Strait Islander Child Placement Principle;

embed the commitment that any person or body performing functions under the Act which involve or are related to the placement of Aboriginal children and young people will take active and timely steps to give effect to the Principle; and,

confirm that, without displacing the primary focus on safety, the Principle is to be the paramount consideration in the administration, operation and enforcement of the Act as it relates to Aboriginal children and young people.

These provisions are intended to ensure that those responsible for the administration, operation and enforcement of the Act as it relates to Aboriginal children and young people more fully understand:

the Principle as a framework to guide their actions;

that it is the Government's commitment to continue to work with its Aboriginal partners towards more full implementation of the Principle over time.

Each of these amendments are an important step and we are committed to test further amendments to strengthen the Principle as part of the full review.

Indeed, while we appreciate the advocacy of those seeking further changes to strengthen the Principle at this time, the government's view is that any further changes must be the subject of broad consultation with the Aboriginal community as part of the full review. We believe this view is consistent with the spirit of the Principle itself.

Indeed, it would seem at odds with this government's commitment to respect the cultural authority of Aboriginal people and to embed Aboriginal cultural governance across decision making which affects Aboriginal people, to proceed to make significant changes to this Principle without proper consultation.

This does not mean we are not committed to further strengthening this section, but rather that we must honour the Principle by making sure any changes are community led and community supported.

This bill also honours the government's commitment to ensure all children and young people in care can enjoy permanency and stability by providing a pathway for adoption from care.

Importantly, these provisions have been shaped in consultation with a range of stakeholders, commencing in September 2019, and will only be pursued when it is in the best interests of the child or young person.

We are confident that the provisions strike the right balance to provide a specific pathway for children in care, recognising the unique circumstances of children under the guardianship, while ensuring appropriate safeguards are maintained.

As has been made clear, and following consultation with Aboriginal leaders and advocates, adoption for Aboriginal children is not being considered. The Aboriginal and Torres Strait Islander Child Placement Principle will continue to provide the framework for permanency planning for Aboriginal children and young people.

The bill also amends section 59 of the principal Act to limit the orders under which the onus of proof is reversed. This amendment responds to many stakeholders who were concerned at the burden of the current provisions on those seeking to object to an order.

These include the re-introduction of short-term Investigation and Assessment orders, consistent with those previously provided for under the now repealed Children's Protection Act 1993.

Several minor amendments in the bill have been incorporated to support greater clarity in the administration of the Act, to support more effective and timely decision-making that will best serve children and young people in care, and to remedy some minor technical issues identified following the current Act's commencement.

The government thanks the many stakeholders who have contributed their time and their much valued advice to this amendment process.

I commend the bill to the council and seek leave to have the explanation of clauses inserted in Hansard without my reading it.

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 8—Other needs of children and young people

This clause inserts a new subsection (4) into section 8 of the principal Act, requiring involved in the administration, operation and enforcement of this Act must, when performing a function or exercising a power in relation to a child or young person, act in the best interests of that child or young person.

5—Amendment of section 11—Placement principles

This clause repeals section 11(4) of the principal Act.

6—Substitution of section 12

This clause inserts a new Part 3A into the principal Act, and makes provision relating to the placement of Aboriginal and Torres Strait Islander children and young people.

7—Insertion of section 15A—Minister may require report from Chief Executive

This clause inserts new section 15A into the principal Act, allowing the Minister to require the Chief Executive to provide specified reports.

8—Amendment of section 34—Chief Executive may investigate circumstances of a child or young person

This clause makes a consequential amendment following the insertion of section 53(1)(ba) into the principal Act.

9—Insertion of section 34A

This clause inserts new section 34A into the principal Act, conferring on the Chief Executive or a child protection officer the specified powers in relation to the investigation of the circumstances of a child or young person under section 34, and creating an offence for a person who refuses or fails to comply with a direction under the new section.

10—Amendment of section 35—Chief Executive may direct that child or young person be examined and assessed

This clause amends section 35 of the principal Act, conferring on the Chief Executive the specified powers in relation to the examination and assessment of children or young people, and creating an offence for a person who refuses or fails to comply with a direction under the new section.

11—Amendment of section 36—Chief Executive may direct person to undergo certain assessments

This clause amends section 36 of the principal Act, conferring on the Chief Executive a power to require certain parents, guardians or other people to undergo a mental health assessment in the circumstances specified.

12—Amendment of section 37—Random drug and alcohol testing

This clause amends section 37 of the principal Act to allow the broadening of categories of forensic material that may be taken or tested in the course of random drug testing.

13—Amendment of section 51—Parties to proceedings

This clause amends section 51(1) of the principal Act to include persons under whose guardianship a child or young person is to be placed, and the Chief Executive, to be parties to certain applications under section 53 of the principal Act.

14—Amendment of section 53—Orders that may be made by Court

This clause inserts new section 53(1)(ba) into the principal Act, allowing the Court to make an order granting custody of the child or young person to the Chief Executive for a specified period not exceeding 8 weeks while an investigation of the circumstances of the child or young person is carried out.

15—Insertion of section 53A

This clause inserts new section 53A into the principal Act, with the new section making special provisions applying to orders made under new section 53(1)(ba).

16—Amendment of section 54—Consent orders

This clause amends section 54 of the principal Act to clarify that it is a party who participates in the relevant proceedings whose consent is required.

17—Amendment of section 56—Adjournments

This clause inserts new s56(1a) into the principal Act, and provides that the Court cannot exercise its general power of adjournment in relation to a contested application such that the period between the lodging of the application and the commencement of the hearing to determine a contested application exceeds 10 weeks.

18—Insertion of section 56A

This clause inserts a new section 56A into the principal Act, limiting the Court's ability to make certain orders relating to contact and placement arrangement for a child or young person.

19—Amendment of section 59—Onus on objector to prove certain orders should not be made

This clause amends section 59 of the principal Act to limit the orders under which the onus of proof is reversed.

20—Amendment of section 77—Temporary placement of child or young person where approved carer not available

This clause inserts new section 77(1a) into the principal Act to allow the Chief Executive to place a child or young person with a person under that section despite it being reasonably practicable to place the child or young person in the care of a particular approved carer if the Chief Executive is satisfied that to do so is preferable to placing the child or young person with the approved carer.

21—Amendment of section 85—Review of circumstances of child or young person under long-term guardianship of Chief Executive

This clause corrects an error in section 85(1)(a) of the principal Act by changing the reference to the 'Minister' to the 'Chief Executive'.

22—Amendment of section 86—Direction not to communicate with etc child or young person

This clause amends section 86 of the principal Act to allow the Chief Executive to direct a person not to be in the company of, or otherwise associate with, a specified child or young person who is in the custody, or under the guardianship, of the Chief Executive.

23—Insertion of Chapter 7A

This clause inserts new Chapter 7A into the principal Act as follows:

Chapter 7A—Adoption of children and young people from care

Part 1—Preliminary

113A—Interpretation

This section defines terms and phrases used in the new Chapter.

113B—Application of Chapter

This section sets out how the new Chapter applies, including by providing that it does not apply to Aboriginal or Torres Strait Islander children and young people.

113C—Modification of Adoption Act 1988

This section sets out a series of modifications to the Adoption Act in relation to adoptions to which the new Chapter applies. In effect, that Act applies as so modified when dealing with an adoption contemplated by the new Chapter.

Part 2—Eligible carers

113D—Eligible carers

This section sets out who is an eligible carer for the purposes of the Chapter.

113E—Assessment of suitability of prospective adoptive parents

This section requires the Court to be provided with the results of an assessment of the suitability of prospective adoptive parents conducted in accordance with any requirements set out in the regulations.

113F—Eligible carer need not be in relationship

This section clarifies that an eligible carer may be a single person, that is they do not need to be in a relationship of a particular kind or at all.

Part 3—Orders under Adoption Act 1988

113G—Applications for adoption

This section sets out who can apply for an adoption order under the Chapter.

113H—Copy of application to be served on birth parents

This section requires copies of an application to be served on the birth parents of a child or young person, and makes provision for where such service is not reasonably practicable.

113I—Consent of certain children and young people required

This section requires, other than where subsection (3) applies, that a child or young person who is older than 12 to consent before an order contemplated by the Chapter can be made.

113J—Consent of birth parent not required

This section clarifies that consent of the birth parents is not required in order to make an order contemplated by the Chapter.

113K—Views of child or young person to be heard

This section requires the Court to give a child or young person to whom an application relates a reasonable opportunity to personally present to the Court their views related to the proposed adoption.

113L—Right of birth parents etc to be heard

This section requires the Court to give the birth parents and siblings of a child or young person to whom an application relates a reasonable opportunity to personally present to the Court their views related to the proposed adoption.

113M—Court to have regard to additional matters

This section sets out additional matters to which the Court must have regard before making an adoption order contemplated by the Chapter.

113N—Child or young person to have legal representation in proceedings

This section requires a child or young person to which an application relates to be legally represented in the proceedings, unless the Court is satisfied that the child or young person has made an informed and independent decision not to be so represented.

113O—Court not bound by rules of evidence

This section provides that, in proceedings under the Chapter, the Court is not bound by the rules of evidence.

Part 4—Miscellaneous

113P—Additional annual reporting obligations

This section imposes annual reporting obligations on the Chief Executive in relation to the operation of the Chapter.

113Q—Minister to review operation of Chapter

This section requires the Minister to review the operation of the Chapter before the fifth anniversary of commencement and to report to Parliament on the review.

24—Amendment of section 152—Sharing of information between certain persons and bodies

This clause amends section 152 of the principal Act to correct an error in the title of the Committee.

25—Amendment of section 158—Review of decisions by South Australian Civil and Administrative Tribunal

This clause amends section 158 of the principal Act to remove specified decisions under the Act from those that can be reviewed under the section, and also prevents the SACAT from being able to require parties to an application from taking part in a compulsory conference under the SACAT Act, and requires the Minister to undertake specified consultation before making regulations under section 158(2)(e) of the principal Act.

26—Insertion of section 161A

This clause inserts new section 161A into the principal Act, restricting the publication of names and identifying information in relation to certain children and young people.

27—Amendment of section 164—Confidentiality

This clause amends section 164 of the principal Act to include amongst the permissible disclosure of information a disclosure is reasonably required to lessen or prevent a serious threat to the life, health or safety of a person or persons.

28—Amendment of section 167—Evidentiary provision

This clause makes a consequential amendment to the evidentiary provision in section 167 of the principal Act.

29—Amendment of section 168—Service

This clause amends section 168 of the principal Act to allow a notice etc to be served on a child or young person to be left with a parent or guardian etc of the child or young person.

30—Amendment of section 170—Regulations

This amends section 170 of the principal Act to allow transitional or savings regulations to be made.

Schedule 1—Related amendments and transitional provisions

Part 1—Amendment of Births, Deaths and Marriages Registration Act 1996

1—Amendment of section 38A—Notification by court appointed guardians

This clause amends section 38A(4) of the Births, Deaths and Marriages Registration Act 1996 to clarify the definition of 'court appointed guardian'.

Part 2—Transitional and savings etc provisions

2—Application of certain provisions to existing applications etc

This clause clarifies the effect of this measure on existing and future applications.

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


At 17:15 the council adjourned until Tuesday 25 May 2021 at 14:15.


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