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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2021-06-10 Daily Xml
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Children and Young People (Oversight and Advocacy Bodies) (Commissioner for Aboriginal Children and Young People) Amendment Bill

Second Reading

The Hon. S.G. WADE (Minister for Health and Wellbeing) (16:38): I move:

That this bill be now read a second time.

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

Leave granted.

Today, I introduce the Children and Young People (Oversight and Advocacy Bodies)(Commissioner for Aboriginal Children and Young People) Amendment Bill 2020 (the Bill).

The Bill will amend the Children and Young People (Oversight and Advocacy Bodies) Act 2016 to establish the position of the Commissioner for Aboriginal Children and Young People (the CACYP) in legislation.

Ms April Lawrie is currently appointed as the CACYP under the Constitution Act 1934. The transitional provisions of the Bill provide that Ms Lawrie's appointment as the CACYP will continue under the Children and Young People (Oversight and Advocacy Bodies) Act 2016 until the end of her current contract on 3 December 2021.

I would like to acknowledge Ms Lawrie's work in the CACYP role since her appointment commenced in late 2018.

Aboriginal children and young people are disproportionately represented within the State's most disadvantaged and vulnerable children and youth. They are more likely to be absent from school and generally have poorer health outcomes than non-Aboriginal children and young people. They are also more likely to be subject to out of home care and the criminal justice system. As a Government, as a community and as a State, we must do more to improve the outcomes for Aboriginal children and young people.

The Bill establishes the CACYP in accordance with the relevant recommendations set out in the report of the statutory review of the Children and Young People (Oversight and Advocacy Bodies) Act 2016 conducted in 2019 by Mr Richard Dennis AM PSM.

Accordingly, the CACYP will be established with legislative provisions that are equivalent to those that apply to the Commissioner for Children and Young People (CCYP) insofar as they relate to Aboriginal children and young people.

This includes, amongst other things, provisions that set out the CACYPs independence and functions and powers to conduct systemic own-motion inquiries in respect of Aboriginal children and young people.

The Bill also sets out that a person appointed to be the CACYP must be an Aboriginal person. This requirement also applies to a person appointed as an acting CACYP.

The functions of the CACYP will be to:

promote and advocate for the rights and interests of all Aboriginal children and young people, or a particular group of Aboriginal children and young people, in South Australia

promote the participation by Aboriginal children and young people in the making of decisions that affect their lives

advise, and make recommendations to, Ministers, State authorities and other bodies (including non-Government bodies) on matters related to the rights, development and wellbeing of Aboriginal children and young people at a systemic level

inquire under section 20M into matters related to the rights, development and wellbeing of Aboriginal children and young people at a systemic level (whether a Governmental system or otherwise)

assist in ensuring that the State, as part of the Commonwealth, satisfies its international obligations in respect of Aboriginal children and young people

undertake or commission research into topics related to Aboriginal children and young people

prepare and publish reports on matters related to the rights, development and wellbeing of Aboriginal children and young people at a systemic level

undertake such other functions as may be conferred on the CACYP by or under the Act or any other Act.

In the performance of these functions, the CACYP is required to consult with and engage Aboriginal children and young people, and their families and communities, and in particular the CACYP should seek to engage those groups of Aboriginal children and young people, and their families and communities, whose ability to make their views known is limited for any reason.

The jurisdiction of the CCYP as Commissioner for all South Australian children and young people is not changed by the Bill. However given the CACYPs specific role in respect of Aboriginal children and young people, the Bill includes provisions that clarify the interaction between, and jurisdiction of, the two Commissioners.

The Bill sets out that the two Commissioners should, in the performance of their functions, collaborate on matters of common interest to such extent as is reasonably practicable. It is intended that the collaboration of the Commissioners be referenced in legislation but dealt with in greater detail by way of a protocol, developed and managed administratively by the Commissioners, given the potential for the Commissioners to consider, act in relation to, inquire into, or report on, similar matters. This will ensure that the Commissioners are aware of any overlapping activities or work occurring on matters of common interest. This approach was recommended in Mr Dennis' statutory review report.

Notwithstanding the intended operation of this protocol, the Bill provides for the Minister to whom the Act is committed to determine jurisdictional disputes between the Commissioners in relation to which Commissioner should conduct an inquiry in a particular matter, as distinct from other functions of the Commissioners such as undertaking research and publishing reports.

This problem solving mechanism is necessary given the respective roles of the CCYP and CACYP in relation to all children and young people in the State and Aboriginal children and young people, and given the Commissioners' inquiry powers under the Act are substantial; existing section 16 and new section 20N provide the Commissioners with the powers of Royal Commission in respect of inquiries conducted under section 15 and new section 20M. Subject to the Act, the Commissioners have absolute discretion to conduct inquiries once the required elements in section 15 and new section 20M are met.

Where an issue arises concerning the appropriate jurisdiction in relation to the conduct of an inquiry, the Bill requires the Commissioners to attempt to resolve which Commissioner should inquire into a particular matter. If they are unable to resolve the issue, the matter is then referred to the Minister for determination.

The jurisdictional dispute provisions set out in proposed new sections 14C and 20L do not allow the Minister to direct or control the Commissioners; their independence from the Crown or any Minister or officer of the Crown is set out under section 7 and new section 20A. Rather, the Minister would be making a determination and the Act restricts the Commissioners from acting in respect of a specific matter.

The CACYP will provide an avenue for Aboriginal children and young people in this State to have a voice in the making of decisions that affect their lives. The CACYP will support the improvement of the health, safety and wellbeing of Aboriginal children and young people by promoting and advocating for their rights and interests.

A similar Commissioner was established in Victoria a number of years ago. The Victorian Commissioner for Aboriginal Children and Young People has promoted significant systemic reform in that State in respect of the services provided to Aboriginal children and young people. It is anticipated that the establishment of such a commissioner with statutory powers and functions in South Australia will provide similar benefits.

When the Bill was debated in the other place on 8 June 2021, a number of amendments were moved by the Member for Reynell relating to the operation of the role of the CACYP, including that new provisions be inserted to:

enable the Commissioners to establish advisory committees.

require the Commissioners to develop a memorandum of understanding in relation to matters of common interest and the means by which they will collaborate with each other on such matters.

require the Commissioners to refer particular matters to each other.

require the Commissioners to engage in mediation before a jurisdictional dispute about the conduct of an inquiry under section 15 or proposed new section 20M is escalated to the Minister.

provide that the person appointed to be the CACYP should have demonstrated experience in systems, whether Governmental or otherwise, affecting Aboriginal children and young people.

clarify the type of matters in relation to which the CACYP may conduct an inquiry under proposed new section 20M.

These amendments were opposed by the government with the Member for Morialta indicating that they would be the subject of further consideration between the Houses. To inform consideration of the Member for Reynell's amendments, the Member for Morialta committed to seeking feedback on these proposals from key stakeholders and other interested parties.

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 (Oversight and Advocacy Bodies) Act 2016

4—Amendment of long title

This clause amends the long title to include reference to the establishment of the Commissioner for Aboriginal Children and Young People.

5—Amendment of section 3—Interpretation

This clause inserts relevant definitions and provides that the Commissioner for Children and Young People will be referred to throughout the Act as 'CCYP', rather than 'Commissioner', due to the establishment of another Commissioner in the Act.

6—Amendment of section 4—Meaning of rights, development and wellbeing

This clause amends section 4 of the Act as follows:

(a) to provide that a reference to the rights of children and young people will be taken to include a reference to the rights set out in the United Nations Declaration on the Rights of Indigenous Peoples;

(b) to provide that a reference to the development of children and young people will be taken to include a reference to the cultural growth of each individual from birth to adulthood;

(c) to provide that a reference to the wellbeing of children and young people will be taken to include a reference to the cultural identity and safety of children and young people.

7—Amendment of section 5—State authorities to seek to give effect to United Nations Convention on the Rights of the Child etc

This clause amends section 5 of the Act to include that each State authority must protect, respect and seek to give effect to the rights set out in the United Nations Declaration on the Rights of Indigenous Peoples.

8—Amendment of section 7—Commissioner for Children and Young People

This clause amends section 7 to change a reference to the 'Commissioner' to 'CCYP'.

9—Amendment of section 8—Appointment of CCYP

This clause amends section 8 to change references to the 'Commissioner' to 'CCYP' and inserts into the list of circumstances in which the office of CCYP becomes vacant, where the holder of the office becomes a prohibited person within the meaning of the Child Safety (Prohibited Persons) Act 2016.

10—Amendment of section 9—Appointment of acting CCYP

This clause amends section 9 to change references to the 'Commissioner' to 'CCYP'.

11—Amendment of section 10—Delegation

This clause amends section 10 to change references to the 'Commissioner' to 'CCYP'.

12—Amendment of section 11—Staff and resources

This clause amends section 11 to change references to the 'Commissioner' to 'CCYP'.

13—Amendment of section 12—Employees

This clause amends section 12 to change references to the 'Commissioner' to 'CCYP'.

14—Amendment of section 13—Use of staff etc of Public Service

This clause amends section 13 to change a reference to the 'Commissioner' to 'CCYP'.

15—Amendment of section 13A—Reporting obligations

This clause amends section 13A to change references to the 'Commissioner' to 'CCYP'.

16—Amendment of heading to Part 2 Division 2

This clause amends the heading to Part 2 Division 2 to change a reference to the 'Commissioner' to 'CCYP'.

17—Amendment of section 14—General functions of CCYP

This clause amends section 14 to change references to the 'Commissioner' to 'CCYP' and includes promoting and advocating for the rights and interests of a particular group of children and young people in the list of functions of the CCYP.

18—Insertion of sections 14A to 14C

This clause inserts sections 14A to 14C.

14A—Collaboration between CCYP and CACYP

This section provides that the CCYP and CACYP should collaborate on matters of common interest as far as reasonably practicable.

14B—Referral of matters to CACYP

This section allows the CCYP to refer a matter to the CACYP.

14C—Jurisdictional disputes

This section allows the CCYP to refer a matter to the Minister if it appears that the CACYP is inquiring into a matter that falls within the CCYP's jurisdiction and requires the Minister to determine which Commissioner should inquire into the matter.

19—Amendment of section 15—CCYP may inquire into matters affecting children and young people at systemic level

This clause amends section 15 to change references to the 'Commissioner' to 'CCYP' and provides that the CCYP's power to inquire into matters is subject to the Act due to proposed section 14C which provides that the CCYP may not inquire into a matter if the Minister determines under that section that the CACYP should inquire into the matter.

20—Amendment of section 16—Powers of CCYP

This clause amends section 16 to change references to the 'Commissioner' to 'CCYP'.

21—Amendment of section 17—Recommendations

This clause amends section 17 to change references to the 'Commissioner' to 'CCYP'.

22—Amendment of section 18—Report of inquiry under section 15

This clause amends section 18 to change references to the 'Commissioner' to 'CCYP'.

23—Amendment of section 19—CCYP may provide other reports

This clause amends section 19 to change a reference to the 'Commissioner' to 'CCYP'.

24—Amendment of section 20—CCYP may publish reports

This clause amends section 20 to change references to the 'Commissioner' to 'CCYP'.

25—Insertion of Part 2A

This clause inserts new Part 2A.

Part 2A—Commissioner for Aboriginal Children and Young People

Division 1—Commissioner for Aboriginal Children and Young People

20A—Commissioner for Aboriginal Children and Young People

This section requires that there be a Commissioner for Aboriginal Children and Young People and that the CACYP is independent of any direction or control of the Crown.

20B—Appointment of CACYP

This section sets out how the CACYP is to be appointed and removed from office.

20C—Appointment of acting CACYP

This section enables the Minister to appoint an Acting CACYP.

20D—Delegation

This section allows the CACYP to delegate certain functions and powers under the Act.

20E—Staff and resources

This section requires the Minister to provide the CACYP with the staff and other resources required to carry out the CACYP's functions.

20F—Employees

This section provides that the CACYP may employ staff, and that those staff are not public service employees.

20G—Use of staff etc of Public Service

This section enables the CACYP to make use of services of the staff, equipment or facilities of administrative units of the Public Service.

20H—Reporting obligations

This section requires the CACYP to report to the Minister on the performance of the CACYP's functions each year. The Minister must lay the reports before both Houses of Parliament.

Division 2—Functions and powers of CACYP

20I—General functions of CACYP

This section sets out the functions of the CACYP. In particular, the CACYP has the function of conducting inquiries under proposed section 20M into matters related to the rights, development and wellbeing of Aboriginal children and young people at a systemic level. These inquiries may be made into both Governmental and non-Governmental systems.

20J—Collaboration between CACYP and CCYP

This section provides that the CACYP and CCYP should collaborate on matters of common interest as far as reasonably practicable.

20K—Referral of matters to CCYP

This section allows the CACYP to refer a matter to the CCYP.

20L—Jurisdictional disputes

This section allows the CACYP to refer a matter to the Minister if it appears that the CCYP is inquiring into a matter that falls within the CACYP's jurisdiction and requires the Minister to determine which Commissioner should inquire into the matter.

20M—CACYP may inquire into matters affecting Aboriginal children and young people at systemic level

This section empowers the CACYP to conduct inquiries of the specified kind into matters related to the rights, development and wellbeing of Aboriginal children and young people at a systemic level, and makes procedural provisions relating to such inquiries.

20N—Powers of CACYP

This section provides that, in conducting an inquiry under section 20M, the CACYP has all of the powers of a royal commission.

20O—Recommendations

This section provides that the CACYP may make recommendations having conducted an inquiry under section 20M. The clause then sets out how the Government is to respond to such recommendations, including by reporting to Parliament should certain recommendations not be implemented.

Division 3—Reporting

20P—Report of inquiry under section 20M

This section requires the CACYP to report to the Minister following the completion of an inquiry under section 20M. The Minister must lay the report before both Houses of Parliament.

20Q—CACYP may provide other reports

This section provides for the CACYP to make other reports to the Minister. The Minister must lay any such report before both Houses of Parliament.

20R—CACYP may publish reports

This section provides that the CACYP may, once a report under this proposed Part has been laid before each House of Parliament and after consultation with the Minister, publish all or part of the report as the CACYP thinks fit.

26—Amendment of section 40—Guardian or Committee may refer matter to CCYP or CACYP

This clause amends section 40 to change references to the 'Commissioner' to 'CCYP' and to include references to the CACYP.

27—Amendment of section 41—CCYP, CACYP, Guardian and Committee may report, and must refer, certain matters to appropriate body

This clause amends section 41 to change references to the 'Commissioner' to 'CCYP' and to include references to the CACYP.

28—Amendment of section 42—CCYP, CACYP and Guardian may make complaints to Ombudsman

This clause amends section 42 to change a reference to the 'Commissioner' to 'CCYP' and to include a reference to the CACYP. It also provides that the CACYP may only make a complaint under section 42 on behalf of an Aboriginal child or young person, a group of Aboriginal children and young people, or Aboriginal children and young people generally.

29—Amendment of section 43—CCYP, CACYP and Guardian may make complaints to Health and Community Services Complaints Commissioner

This clause amends section 43 to change references to the 'Commissioner' to 'CCYP' and to include references to the CACYP. It also provides that the CACYP may only make a complaint under section 43 on behalf of an Aboriginal child or young person, a group of Aboriginal children and young people, or Aboriginal children and young people generally.

30—Amendment of section 44—Immediate reports to Parliament

This clause amends section 44 to change references to the 'Commissioner' to 'CCYP' and to include references to the CACYP.

31—Amendment of section 45—Referral of matters to inquiry agencies etc not affected

This clause amends section 45 to change references to the 'Commissioner' to 'CCYP' and to include references to the CACYP.

32—Amendment of section 52—CCYP and CACYP or representative may attend meetings of Council

This clause amends section 52 to change references to the 'Commissioner' to 'CCYP' and to include references to the CACYP.

33—Amendment of section 57—Outcomes Framework for Children and Young People

This clause amends section 57 to change a reference to the 'Commissioner' to 'CCYP' and to include a reference to the CACYP.

34—Amendment of section 59—No obligation to maintain secrecy

This clause amends section 59 to change a reference to the 'Commissioner' to 'CCYP' and to include a reference to the CACYP.

35—Amendment of section 60—CCYP or CACYP may require State authority to provide report

This clause amends section 60 to change references to the 'Commissioner' to 'CCYP' and to include references to the CACYP.

36—Amendment of section 61—CCYP, CACYP or Guardian may require information

This clause amends section 61 to change references to the 'Commissioner' to 'CCYP' and to include references to the CACYP. It also requires information and documents held by a third party providing a service of a State authority to be provided to the CCYP, CACYP or Guardian, if requested.

37—Amendment of section 62—Sharing of information between certain persons and bodies

This clause amends section 62 to change a reference to the 'Commissioner' to 'CCYP' and to include a reference to the CACYP.

38—Amendment of section 64—Obstruction etc

This clause amends section 64 to change a reference to the 'Commissioner' to 'CCYP' and to include a reference to the CACYP.

39—Amendment of section 68—Protections, privileges and immunities

This clause amends section 68 to change references to the 'Commissioner' to 'CCYP' and to include references to the CACYP.

40—Repeal of section 70

Section 70, which sets out the requirements for a review of the Act within 3 years of commencement, is deleted as that review has been completed.

41—Amendment of Schedule 1—Transitional provisions

This clause inserts a transitional provision in respect of the office of Commissioner for Aboriginal Children and Young People.

13—Commissioner for Aboriginal Children and Young People

This clause provides that—

(a) a person appointed as Commissioner for Aboriginal Children and Young People under the Constitution Act 1934 immediately before the commencement of the clause ceases to hold that office and is taken to be appointed under Part 2A until 3 December 2021; and

(b) the term of appointment of that person is taken to have commenced on 3 December 2018 which is the day on which the appointment under the Constitution Act 1934 commenced; and

(c) the operation of the clause does not amount to a break in service and existing and accruing rights in respect of leave under the Constitution Act 1934 appointment are retained.

Schedule 1—Related amendments

Part 1—Amendment of Children and Young People (Safety) Act 2017

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

This clause includes the Commissioner for Aboriginal Children and Young People in the list of persons and bodies to which section 152 applies.

Part 2—Amendment of Freedom of Information Act 1991

2—Amendment of Schedule 2—Exempt agencies

This clause includes the Commissioner for Aboriginal Children and Young People in the list of exempt agencies.

Part 3—Amendment of Health and Community Services Complaints Act 2004

3—Amendment of section 27—Time within which a complaint may be made

This clause provides that section 27, which sets out the time within which a complaint must be made, does not apply in relation to a complaint made by the Commissioner for Aboriginal Children and Young People under the Children and Young People (Oversight and Advocacy Bodies) Act 2016.

Part 4—Amendment of Ombudsman Act 1972

4—Amendment of section 13—Matters subject to investigation

This clause clarifies that the Ombudsman may investigate a prescribed child protection complaint that is made by the Commissioner for Aboriginal Children and Young People under the Children and Young People (Oversight and Advocacy Bodies) Act 2016.

5—Amendment of section 15—Persons who may make complaints

This clause provides that the provision stating that a complaint must not be entertained by the Ombudsman unless made by a person or body of persons directly affected by the administrative act to which the complaint relates does not apply in relation to a complaint made by the Commissioner for Aboriginal Children and Young People under the Children and Young People (Oversight and Advocacy Bodies) Act 2016.

6—Amendment of section 16—Time within which complaints may be made

This clause provides that section 16, which sets out the time within which a complaint must be made, does not apply in relation to a complaint made by the Commissioner for Aboriginal Children and Young People under the Children and Young People (Oversight and Advocacy Bodies) Act 2016.

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

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