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Legislative Council - Fifty-Fifth Parliament, First Session (55-1)
2022-09-07 Daily Xml
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Bills

Children and Young People (Safety) (Child and Young Person's Visitor) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 7 July 2022.)

The Hon. J.M.A. LENSINK (17:32): I rise to make some comments in relation to this bill. In doing so I thank the honourable member for moving this piece of legislation, so that we can discuss these important issues, which she introduced on 6 July. The role of the Child and Young Person's Visitor was established in 2017, with the aim of regularly visiting and inspecting individual residential and emergency care homes and to meet with an advocate for the children and young people living in them.

The position was created in response to a recommendation by royal commissioner Margaret Nyland, who found there needed to be a dedicated advocate for children living in residential care. Ms Penny Wright was appointed to the role of Child and Young Person's Visitor on 13 February 2018, which was funded as a two-year trial. Additional resources were provided to the program on 30 June 2019 at Ms Wright's request. A final report on its findings was released in February 2020 and formal evaluation was undertaken by Flinders University.

Under the Marshall Liberal government, the Department for Education and the Department of Human Services provided almost $2 million in funding to the Office of the Guardian for Children and Young People to undertake the statutory functions required under the act. Ms Wright resigned from the role of Child and Young Person's Visitor on 23 August 2021. She continued in her role as the Guardian for Children and Young People and Training Centre Visitor to 31 July 2022, and we thank her for her service over those years in these multiple roles. We also congratulate Ms Shona Reid on her appointment as the new visitor and guardian.

The Office of the Guardian for Children and Young People continued to visit DCP residential facilities through 2021-22 as part of its monitoring functions, including conducting virtual visits during the COVID-19 pandemic. In addition, the Marshall Liberal government continued to invest in evidence-based programs, including $18.2 million over seven years for the Newpin SA family reunification program, $11.3 million over six years for the Resilient Families social impact investment, $3.8 million over 2½ years for Treatment Foster Care Oregon and $3.7 million over four years for Family Group Conferences.

In April 2022, this government announced that it would spend $450,000 each year to reinstate the role, for which the visitor/guardian claimed that a business case commissioned by her office had found she needed a minimum of $1.637 million each year. The role and functions of the Child and Young Person's Visitor are legislated in chapter 9 of the act. There are several references in the act in relation to staff and resources, which the Liberal Party believes mitigate the need for this particular legislation. That is, section 117A states:

Staff and resources

The Minister must provide the Child and Young Person's Visitor with the staff and other resources that the Visitor reasonably needs for exercising the Visitor's functions.

Furthermore, section 14 of the Children and Young People (Safety) Act 2017 in subclause (1)(c) also states that:

…the Minister must, in order to promote the wellbeing of children and young people and early invention where they may be at risk of harm…

(c) promote, 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 and maximising the wellbeing of children and young people…

We believe that this piece of legislation may have the effect of mandating resourcing of a discretionary office, and for that reason we are unable to support this particular measure, but we do appreciate the intent of the honourable member and look forward to further debate on this important subject.

The Hon. C.M. SCRIVEN (Minister for Primary Industries and Regional Development, Minister for Forest Industries) (17:37): The government thanks the honourable member for introducing this bill and for highlighting the importance of the role of the Child and Young Person's Visitor. We also note the honourable member's strong interest in child protection matters.

The Children and Young People (Safety) (Child and Young Person's Visitor) Amendment Bill 2022 was introduced into this place on 6 July this year. The government will not be supporting the changes proposed at this time. We acknowledge that the intent of the amendment put forward is to ensure that the state government provides sufficient funding and staff for the role of Child and Young Person's Visitor, a role that the Guardian for Children and Young People performs in an ex-officio capacity.

Members will be aware that, after the initial trial of the Child and Young Person's Visitor role under the former guardian, Penny Wright, the former Marshall Liberal government declined to fund sufficiently the continuing resources required for the guardian to fulfil the visitor function. The funding and role were something this government committed to reinstate as part of our election commitments. We did this through a $450,000 per annum commitment, indexed from 2022-23, in our first state budget. This is because the government is committed to the important visitor role. At this stage, the funding provided is suitable for the function envisaged.

The government, and in particular the Minister for Child Protection in the other place, will work closely with the new guardian, Shona Reid, as a visitor program is implemented. We welcome Ms Reid's input around resourcing and other requirements going forward. However, at this stage there is no need to legislate for this funding. Indeed, we will have the opportunity to address this and a range of other matters in the full review of the Children and Young People (Safety) Act, which has commenced this week, I understand.

The review provides an opportunity for all South Australians to consider input into, and support efforts to build, a better child protection system. This review will be informed by feedback from key stakeholders, including children and young people, carers, families, non-government and government partners, advocacy groups, the academic sector and those with direct experience of the system.

It is a critical opportunity to rigorously examine and improve the central legislative framework through which South Australia's child protection system operates and to redefine what our child safety responses look like going forward, to deliver on our commitments to Aboriginal children and young people, and to make sure we have the legal frameworks in place that reflect community values and expectations.

The review will help make sure South Australia has the right settings in place to prioritise responses to those children and young people in our community who are most at risk of harm and to place their safety at the centre of our decision-making. For the sector and the community, it is an important opportunity to think about how the legislation can enable us all to better support children, young people and their families.

Public submissions to the review opened via the YourSAy online platform yesterday, supported by a discussion paper. A series of metropolitan, regional and Aboriginal focused consultation sessions will be held during September and October, and more information about these will be published next week.

The government looks forward to the honourable member's involvement in the review and welcomes her valuable input into the broad range of legislative considerations for the child protection system. I also know that the Minister for Child Protection would be very happy to brief her on the review and any other matters of interest.

The Hon. C. BONAROS (17:41): I rise to speak on behalf of SA-Best on the Children and Young People (Safety) (Child and Young Person's Visitor) Amendment Bill 2022 and indicate that this bill has our unequivocal and full support. Children and young people in residential care facilities are some of the state's most vulnerable citizens—arguably the most vulnerable citizens—and it is appalling that a legislative role which was established to check on and provide advocacy for our most at-risk kids remains inadequately resourced.

The Child and Young Person's Visitor was established under the Children and Young People (Safety) Act 2017 to specifically conduct visits to and inspections of prescribed facilities, communicate with and promote the best interests of children and young people who reside in those facilities and provide advocacy on their behalf. The role also requires the provision of advice to the minister on systematic reforms. It was in direct response to recommendation 137 of Commissioner Margaret Nyland's report, The Life They Deserve, which called for the development of a Community Visitor Scheme for children in all residential and emergency care facilities.

The framework was left to legislators, but the intent was very clear. At the time, it was estimated it would cost $1.7 million per year for visits to be made to all children and young people who were new to residential care. Of course, the numbers were nowhere near what they are today. Disturbingly, the upward trajectory has been steep. As at June 2022, there were 4,741 children aged under 18 in care in South Australia. That is for a heartbreaking range of reasons. Of those, 650 were in residential care. Five years ago, that number was just 388.

The Child and Young Person's Visitor role was initially funded for a two-year trial, as has been alluded to, but funds dried up at its conclusion in September 2019 under the previous Liberal government. Still, the visitor and her staff were able to meet with 99 children aged two to 17 living in DCP facilities and make 37 visits to 24 individual facilities during that two-year period. In 2020-21, the scheme did not receive a dedicated budget to implement its legislative function and was unable to employ dedicated staff to undertake them.

In announcing her resignation from the role in August last year, Penny Wright made the following statement:

In February 2018, as well as my existing roles of Guardian and Training Centre Visitor, I agreed to take on the new role of 'Child and Young Person's Visitor,' to head up a visiting and advocacy scheme focused specifically on the children and young people living in residential and emergency care.

Since then, my staff and I have worked extremely hard to make the role work for the benefit of these children.

As Guardian, I conducted a funded two-year trial visiting program then, when that funding ceased, we spent many more (often unrecorded) hours, refining a system of visiting and feedback that reflected children's voices, serious safety concerns and both good and poor practice.

Before the last budget I submitted a detailed business case to government to support a scheme to visit a reasonable proportion of the 200 residential care properties which now house over 600 children and young people.

As this was not successful, there is no ongoing funding for the role or scheme.

I have now concluded that, in the absence of any dedicated resourcing for the Child and Young Person’s Visitor, and no likelihood of resourcing in the foreseeable future, I am just not able to meet the obligations of the role.

In principle, the South Australian community would take some comfort in knowing that there is a statutory position dedicated to looking out for these vulnerable children and young people. However, a role in name only, without resources, does not enable me to fulfil its functions even to a minimum standard.

That is an indictment of the work of this parliament and our child protection system. While the power of the Guardian for Children and Young People to conduct visits is entrenched in legislation, in reality budget constraints mean less than 10 per cent of residential care homes are able to be visited under that scheme.

Fast-forward to the new Labor government, which has committed a very modest funding of $1.87 million over the next four years to establish and partially recommence the scheme. It is a start but a very poor, tight-fisted start and yet another indictment of the importance that we place on keeping our most vulnerable kids safe, especially when you consider that $1.7 million annual cost was estimated over seven years ago and that was limited to kids who are new to residential care only. The $467,500 just does not cut it—not then and certainly not now.

There is, indeed, a need to legislate in this area, and both major parties have failed in that regard. Where are this government's priorities? Our child protection system continues to be a politically vexed issue, which I find completely disappointing. If this government is serious about significantly improving our child protection system, throwing around words like 'strong focus' and 'deep commitment' are extraordinarily hollow without funds to back them up. If they are going to talk the talk, then they have to be prepared to walk the walk.

If the government is happy to spend $18 million on a car race and $82.4 million on a new swimming pool, then surely it can ensure that a properly resourced asset such as this legislative role is undertaken to ensure our most vulnerable kids are looked after. I know I am not comparing apples with apples, but it is important. The Cross Border Commissioner has been allocated $230,000 more funding over the same period as that which has been requested in this instance.

We can probably come up with countless examples of where money has been spent. I think I recall a recent story online about the Malinauskas government spending something like $750,000 in its first six months in government on advertising alone and I am sure that money could have gone a long way to assisting in this area. Our child protection system is broken and there are many things which can and must be done to improve the outcomes for vulnerable South Australian kids and their families. Yes, they require money, but the outcomes of those funding arrangements can be profound.

We continue to see Aboriginal children and young people grossly over-represented in out-of-home care in South Australia, which is nothing short of a disgrace. The figures for Aboriginal kids in detention in South Australia are 23 times higher than non-Aboriginal kids and 17 times higher than all ethnicities combined. Despite comprising only 5 per cent of the state's young people, Aboriginal kids also make up more than half the daily average population in our detention centres. We also have those figures I alluded to in relation to our child protection system.

When I speak of these issues, I am always reminded of something as simple as a hearing test that could change the trajectory of an Aboriginal child's life away from child protection and, indeed, from the criminal justice system. I will never forget the day I heard Dr Kelvin Kong, a trailblazer for Indigenous health in Australia, say that something as simple as a hearing test could have had the potential to change the outcome of the sad and sorry events that took place at the Don Dale Detention Centre and the trajectory of the children who were detained there.

Hearing problems amongst Aboriginal youth have been linked to increased rates of child protection contacts but also incarceration rates in Australia. In fact, in the Northern Territory 94 per cent of Indigenous prisoners suffered impaired hearing compared with 45 per cent of the wider Indigenous population. The royal commission into the protection and detention of children in the NT heard that six out of 10 boys at the Don Dale Youth Detention Centre suffered hearing impairment. When you cannot hear instructions that are being given to you by the authorities it has the potential, as we have seen, to result in catastrophic outcomes.

Dr Kong has seen the consequences of allowing ear disease to fester for decades, and I think it absolutely beggars belief that these people meet people and wonder if they had met them at the age of two or three whether indeed they would have spent their entire life in and out of jail or the criminal justice system or suffered the other social injustices that they have endured.

Again, I am going to speak a little bit more about this but in terms of those rates of Aboriginal children entering child protection and, indeed, detention, we know that they are worsening. We know that Aboriginal children account for 36.7 per cent of young people in care, and yet they make up only 5 per cent of the total population. There is a continued worsening rate of Aboriginal compared to non-Aboriginal children being drawn into that system, and they are vastly over-represented in both the child protection and the youth justice systems, as I said, despite comprising only about 5 per cent of the state's young population.

I think it is also worth noting that South Australia is well below par when it comes to our figures relating to state care, which are currently the second worst in the nation, and the Closing the Gap target requires a 45 per cent reduction in the over-representation of Aboriginal children and young people in care by 2031, but as former Commissioner Wright has told us, if we continue with this rate of removals then, sadly, we will fail to meet those targets. Without significant reforms and investment in culturally safe family support and early intervention programs we will fail to meet those targets.

About 53 per cent of the 1,519 Aboriginal children in state care—I think that number is slightly higher now—defined in the commissioner's report as 'out-of-home' care prompted by child safety concerns, were placed with relatives, but the report made the point that less than a third of those children have been placed with Aboriginal relatives or kin and that the rate of placement with Aboriginal family kin has also declined over time—another problem that this parliament has struggled to deal with.

Then, of course, we have the issues of the continued legacy of dispossession that gives rise to. Aboriginal elder and Ngadjuri woman Pat Waria-Read, who I am sure most of us by now have had the pleasure and honour of meeting, grew up at Point Pearce Mission and was taken out of the care of her mother at a young age. She has been a leading advocate in this space and talked about the impacts this is having in terms of the worsening state of our child care protection system, and it is of little surprise when you hear her say that not much has changed.

Indeed, the groups that I have spoken to, together with Ms Waria-Read and Indigenous families and groups who work in this space, is that we are creating a second wave of stolen Aboriginal children. There must be a continued focus on this very important legislation because we continue to see children, but especially Aboriginal children and young people, grossly over-represented in our out-of-care system in South Australia, which I think is nothing short of a disgrace. A specific focus of the current review of the act must be full and considered and the implementation, in my view, of those Aboriginal and Torres Strait Islander child placement principles must also be one of our priorities.

The children and young people who find themselves in residential care come from complex backgrounds. They often have experienced a lifetime of trauma, trauma many of us could not even begin to imagine. They have no adult close to them who can provide a safe home environment. They find themselves living in facilities with other children and young people with equally complex and traumatic backgrounds.

These places are not playgrounds; they are often places of last resort. There are kids we have heard about who have not attended school for months or even a year because they have been in a residential facility. We have heard reports not just here but across the nation of kids living in hotel rooms and the only contact they have had is with the people who come in to do shiftwork to care for them—no friends, no family, no loved ones, just shiftworkers who come in to do their bit, look after that child for their eight hours or whatever it is and then leave them until someone else comes. That is an indictment of our child protection system in this state as well.

The June 2022 final report of the South Australian dual-involved project reaffirmed the need for specialist and intensive monitoring of children and young people in residential care, given their disproportionate over-representation in detention, something I have already spoken about and I always have a lot to say about in this place, as do my crossbench colleagues on the other side of the bench.

That project observed that dual-involved children and young people—a term used for children and young people who are in residential care and have interactions with the youth justice system—do not feel safe in residential care placements, find it difficult to contact their allocated DCP worker and continue to bear the brunt of systemic placement and staffing shortages. Many prefer to be detained at Kurlana Tapa, the Adelaide Youth Training Centre, than remain at their residential placement, which really says it all.

I know I have said this time and time again when I have spoken on this and other issues, but again I am reminded by Dr Kong that prevention, early intervention, wraparound services, education, supports and hearing tests, for God's sake, might all come at an up-front cost but we know they work and their benefits far outweigh the long-term costs that we pay as a community. It is the same story across the board, but successive governments, we know, pick and choose between these issues they invest in. We treat them in silos. We do exactly the same with child detention, we do the same with youth detention, we do the same with the criminal justice system and we do the same with human services, and that has been an abysmal failure in this jurisdiction.

In doing so we fail to acknowledge the likely trajectory of a child from care, from the child protection setting or from detention, moving to the criminal justice system, and fail at the most basic things we do to turn things around when we pass pieces of legislation like this and then pay lip service to them in return when it comes to funding when we should be looking at this holistically and not in a vacuum.

I think I have made my point. I think this is a very good bill. It has overwhelming support not just from members in this place but, as I said, from Commissioner Nyland, from the former Commissioner for Children and Young People, Penny Wright, and from experts in this area who have all said that if we are going to do this then we had better do it properly. On that basis, I indicate again our full support for the bill and look forward to working with the Hon. Sarah Game on our shared interest in this area going forward.

The Hon. T.A. FRANKS (17:58): I rise to speak briefly, given the hour, on behalf of the Greens in support of this bill. This bill is not only vital, it is a no-brainer. It is long past time that we had proper funding and resourcing for the Child and Young Person's Visitor in our state. We have known for a long time that the situation is dire.

I think this was clearly demonstrated by the former Child and Young Person's Visitor, Penny Wright, whom we thank for her hard work and dedication, who resigned from being the Child and Young Person's Visitor due to a lack of government funding under the previous government. It begs the question: why are we legislating to create these important roles and powers but then failing to resource them adequately?

It is a deeply concerning situation where we have had someone in the role who is eminently qualified, who wants to do the job properly but felt compelled to resign 'as a matter of good conscience and transparency' as she would not be able to meet the obligations of the role due to a lack of government funding and support. As Ms Wright said at the time, 'a role in name only, without resources, does not enable me to fulfil its functions even to a minimum standard'.

We have other legislation that establishes similar roles, and that legislation does stipulate that the role is adequately resourced. It hardly seems too much to ask. While this role was initially funded as a two-year trial, there have been ongoing calls since the end of 2019 to resource this role properly, particularly after the release of a damning report into the child protection department's handling of two sexual abuse cases involving 13-year-old girls in residential care.

At the time, the then shadow minister, now Minister Hildyard, from the opposition benches said that Penny Wright's resignation was 'devastating for South Australia's most vulnerable children and young people'. She also went on to say, 'Ms Wright has urged the minister to reinstate funding for the visitor scheme in her last annual report and the opposition has repeatedly called on the minister to do so.' I am wondering where that spirit and that sense of compassion is from the Malinauskas government right now.

We saw an announcement in April that the Malinauskas government would spend $450,000 each year to reinstate the role, but Penny Wright has previously stated that her office put forward a business case that found that the minimum amount of funding needed to carry out the role properly is $1.637 million a year.

The new Child and Young Person Visitor, Shona Reid, also has publicly stated that it is important that all legislation establishing independent oversight roles ensure a funding commitment clause and that, and I will quote her, 'It is unfortunate that this was missed in the initial drafting of the Children and Young People (Safety) Act 2017.' That is our responsibility as legislators. We do have an opportunity now to address that oversight and ensure that this essential role is properly resourced to safeguard vulnerable children and young people in our state.

On that, I just want to say these are not criminals, these are children. For some reason, because they are placed in residential care, people seem to think that they have done something wrong. They have done nothing wrong. They have been let down in their personal lives. We should not be letting them down in this parliament.

One thing I remember is that a previous minister visited these children in front of staff and asked the children what they would like in their residential care to make it feel more like home. One of them asked for a Netflix account. Any teenager, any child, in this state who asked their parents for a Netflix account would not be seen as audacious or greedy and would not be told to pay for it out of their own pocket, as these children were told. Again, this goes to the fundamental core problem here that we are treating these children as if they have done something wrong, not as if they need a home with compassion and care and oversight.

We also know that the child protection workers who work in this very important area have been chronically underfunded themselves. Indeed, in 2021 the PSA did a survey over some six weeks. In those six weeks there were 150 shifts that were uncovered. That is 150 times in a shift that workers were called in and required to do overtime just to ensure the minimum staffing in those facilities.

We know what happens when people cannot turn up for work because there are not enough workers to do the work that is required, and that is that the children get let down again—the children miss out, the children are punished, the children are not supported. The parliament made an error in the drafting of the legislation that supported this, and we can fix that error now. We have done so with other positions, and I commend the Hon. Sarah Game for bringing this to this place. With that, the Greens strongly support the bill, and we will be supporting any divisions to affirm that support.

The Hon. S.L. GAME (18:04): Young people in residential care deserve a legislative commitment to protect them. Supporting this amendment bill enshrines basic minimum resourcing levels for the Child and Young Person's Visitor role. Young people in residential care are children who cannot remain safely with a parent, do not have a foster home and cannot be placed in kinship care. They are amongst the most vulnerable in the state and they often do not have a single known adult on their side to advocate for them.

The amendment bill resources a caretaker role, responsible for looking after those children. The role was recommended by Margaret Nyland in the child protection system's royal commission report in 2016 and introduced in 2017, yet it has never had resourcing certainty.

I have consulted widely in the child protection space on this issue, meeting with the Commissioner for Children and Young People, the Commissioner for Aboriginal Children and Young People, the immediate former Guardian for Children and Young People, the Minister for Child Protection, the chief executive of the Department for Child Protection, multiple agencies and non-profits that work with people after leaving the state protection system as young adults and, most importantly, children and young people who have been through the residential care system.

Stakeholders do agree that the basic level of resourcing prescribed in the amendment should be enshrined in legislation, as is the current standard for other roles under the Guardian for Children and Young People which include the guardian role and the Training Centre Visitor role. The wording is the same. The wording makes the resourcing obligation consistent across the three roles.

I was spurred to this legislation by reading of the death of 13-year-old Zhane Chilcott, who died by suicide, having only been visited once a year by an officer from the Department for Child Protection. He hated residential care so much that having been told he would stay there until he was 18 years old he killed himself. He left behind a suicide note, stating, 'I don't want to be in care. I want to be with you, Mum.' Zhane was last visited in February 2016. He passed away that July. Had this resourcing been in place, he would have received a visit in May, three months after his prior visit. That visit may have saved his life and it could have acted as a crucial intervention point.

A number of young people have said they would rather spend time in Kurlana Tapa Youth Training Centre because they feel safer, heard and better supported in the youth prison system than in state residential care. That is damning. Between 2020 and 2021, there were a reported five pregnancies among girls in state care, two of them only 13 years old and two of them sexually abused by known paedophiles.

In a report commissioned for the Guardian for Children and Young People, one youth is quoted as saying:

I've got everything in Kurlana Tapa that I wish I had on the outside…this place is so much better than being on the outside in those houses. There is no proper support to get you back to school and all that stuff.

They report feeling let down and they report feeling overlooked. This amendment should not be about political pointscoring. It is too important for the major parties to be playing games at the expense of vulnerable children's lives. Four visits per year from the same, consistent adult who cares about their needs, will listen to their concerns and take their word seriously is the absolute minimum commitment. That is all this legislation is asking for.

Children are committing suicide. Young people are being abused. It is neglectful and abhorrent that there is currently only a commitment to visit them once per year. Our children and young people deserve better. In fact, the Minister for Child Protection herself yesterday said, and I quote from Hansard:

We have also—very, very importantly—provided funding for the Child and Young Person's Visitor. Members who were in the last parliament would be aware that there was much advocacy and questioning of the previous government and the previous minister about the refusal to provide any ongoing funding for the role of the Child and Young Person's Visitor. To link that to the question the member asked, having a funded Child and Young Person's Visitor to oversee children in care, oversight how they are going and be an advocate for them, is incredibly important in terms of our ongoing, continuous efforts to improve children's lives, to improve their safety.

It was really disappointing that the previous government simply refused to provide that ongoing funding.

As people would be aware, the previous guardian, as a result of the lack of funding, actually resigned from that role. One of the really clear actions that we have taken on coming to government is to fund that role for the Child and Young Person's Visitor. We have taken a number of other actions also on coming to government and we will continue to do so. Again, I reiterate that I thoroughly examined the systems and processes and made sure that I made really positive amendments to the procedures…

The minister has just highlighted the importance of legislating a commitment to resourcing. It is essential to ensuring recurrent resourcing into perpetuity, so it is interesting to note that Labor will in fact be voting against this amendment today.

This is not a major party tennis play at the expense of children in residential care, from the previous government for not providing any resourcing, to the current government for not providing anywhere near enough. I would like to thank the crossbench for their commitment. It is disappointing to hear the excuses made by major parties in not supporting this straightforward, long overdue amendment.

The council divided on the second reading:

Ayes 5

Noes 12

Majority 7

AYES

Bonaros, C. Franks, T.A. Game, S.L. (teller)
Pangallo, F. Simms, R.A.

NOES

Bourke, E.S. Centofanti, N.J. Curran, L.A.
Hanson, J.E. Hunter, I.K. Lee, J.S.
Lensink, J.M.A. Maher, K.J. Ngo, T.T.
Scriven, C.M. (teller) Wade, S.G. Wortley, R.P.

Second reading thus negatived.


At 18:15 the council adjourned until Thursday 8 September 2022 at 11:00.

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