Children and Young People (Oversight and Advocacy Bodies) Bill 2016

Legislative Council
Tuesday 27th of SEPTEMBER 2016

Second reading speech

Children and Young People (Oversight and Advocacy Bodies) Bill

The Hon. T.A. FRANKS (17:02 :16 ): I rise on behalf of the Greens to speak to the Children and Young People (Oversight and Advocacy Bodies) Bill 2016. I do so noting that, of course, this is not the first piece of legislation in this place that deals with this area. I am highly cognisant of the work of the Legislative Council on the issue of a children's commissioner. My office had a Facebook square that we developed which was highly critical of the government's attempt to have a children's commissioner who was seen but not heard. The bill before us will make sure that the children's commissioner is both seen and heard and we commend the government for finally taking that step.

We also note, in the words of the member for Bragg, that the government has 'acquiesced' and the Greens also welcome the provision within this bill in terms of the appointment of such a commissioner being made through the Statutory Officers Committee. We certainly support that. This bill, of course, goes further than simply providing for a children's commissioner. It establishes the commissioner for children and young people, continues the Guardian for Children and Young People, the Child Death and Serious Injury Review Committee and the Youth Advisory Committee and, somewhat controversially, establishes a child development council.

The bill is, of course, part of the legislative response to the recommendations made recently in the Nyland royal commission report. Indeed, the measures in this bill give effect to part of that report. As we are all aware, the concept of a children's commissioner was first recommended by the Layton report, which was submitted in 2003. It has taken us 13 years to get to the point where we are finally, I think, on the verge of creating a children's commissioner in this state. I note that we will be the last state in this nation to do so, but then it took less than 30 minutes for this bill to pass through the other place.

I think that should ring alarm bells, not for the lack of goodwill, because I think all members of this council and the other place would like to see progress in this area. The Greens are not prepared to support that progress at the expense of a shoddy version of what we could have. We fear that rushing this process in the final minutes of what has been a very long journey could see us repent at leisure.

I note that the government received 156 written submissions from stakeholders and members of the community with regard to the formulation of this piece of work. I echo the opposition's call, but I strongly urge the government to make available to this council those submissions which can be made available, in order to inform our debate. Without those submissions, we cannot hear the voices of those at the coalface who have made some contributions, who live and breathe this area, and who should be listened to, just as children's voices should be listened to with regard to this piece of legislation.

We want to get it done but we want to get it right. This is not the point at which to rush this process. I put on notice that I will be expecting this council to receive those submissions, where they can be made available, in order to inform our deliberations. I draw the attention of members of the council, members of the government and members of the other place, who only spent 20 minutes on this bill—

The Hon. S.G. Wade: Thirty minutes.

The Hon. T.A. FRANKS: Less than 30 minutes. I urge them to heed the advice of three particular bodies who have had something to say and were part of the process, and who have made their particular views known publicly in various ways. I understand that some of these submissions have been sent to members of the Legislative Council but we deserve to see all of the submissions.

The first is from the Youth Affairs Council of South Australia (YACSA), who were pleased to make a contribution to this bill in the form of a submission in September 2016. I should imagine that they would be pleased because they have been campaigning for this for many years. YACSA is the peak body in South Australia representing the interests of young people, youth workers, organisations and networks throughout the non-government youth sector. Their policy positions are independent and not aligned with any political party or movement.

YACSA supports the fundamental right of all young people to participate in and contribute to all aspects of community life, particularly decision-making processes which impact upon them. This is the voice of an advocacy group that we should be listening to in this place. According to their submission:

YACSA fully supports and welcomes the establishment of a Commissioner for Children and Young People and maintains that this role is crucial to advocate for and protect the interests of all children and young people across the state.

They are by no means making this submission to be critical of the move that the government has made. However, they do go on to say:

To reiterate our previous response, we are concerned that the current public discussion surrounding the Commissioner for Children and Young People is being subsumed into the child protection reform process. Both the Layton and Nyland reviews recommended the establishment of a Commissioner to engage and advocate with and for all children and young people – not just those in the child protection system.

While the commentary and fact sheet provided in this government engagement supports that assertion, it also suggests that the Commissioner's role includes, ' …the monitoring, referral and review of child protection matters and system-level issues'.

We are deeply concerned that the current discourse creates an unrealistic expectation about the point and purpose of a Commissioner for Children and Young People and urge the Government to reconsider its commentary and confirm its intention before progressing.

Of course, YACSA supports this position being independent of government, as do the Greens. However, they also note that they are quite disappointed that the detailed recruitment process that was a feature of the previous Child Development and Wellbeing Bill 2014 was omitted from the extract and is omitted from the current bill.

They go on to make a note on independence and again refer to their previous submissions, which have stated the importance of the commissioner being completely independent of government to ensure the legitimacy of the role and assist in building public confidence. That is certainly an important point here. Public confidence in this government's handling of both child protection and, of course, the broader issues of children and young people's voices, I think, has a long way to go to be restored. Indeed, rushing a process will not restore that confidence.

The YACSA submission notes that section 52AB of the Children's Protection Act 1993 specifically provides for the independence of the Guardian for Children and Young People from direction of the minister and government as follows:

1. (Independence) in performing and exercising his or her functions and powers under this Act, the Guardian must act independently, impartially and in the public interest.

2. The Minister cannot control how the Guardian is to exercise the Guardian's statutory functions and powers and cannot give any direction with respect to the content of any report prepared by the Guardian.

YACSA recommends a similar inclusion in the legislation, making clear that the commissioner can undertake their role unfettered by government.

The Greens concur. Why is this not in the legislation before us? This submission goes on to note that the functions of a commissioner for children and young people are in line with the Nyland review and should be advocating for the rights and interests of all children and young people. Certainly in my conversations with YACSA, while there has been such a great focus on child protection, we have actually lost sight of the fact that this is a much broader scope with which we are dealing.

With the focus on child protection, which is vitally important and essential, it is also essential that we do not throw the baby out with the bathwater and forget all the good work that has previously been done that is in current legislation, but is wiped out with the stroke of a pen or the pass of a vote through this place.

Of most concern is the fact that the charter has not been transferred over in this bill, and the Greens ask the government: why has the charter not found its way into this piece of legislation before us? It was a piece of work that was developed through the voices of children and young people, is long held and forms part of many NGOs' contracts with government to uphold. From the Greens' perspective, the fact that this charter is missing from this bill raises significant concerns that this bill has been rushed, that this bill is a shoddy job and that the children of this state deserve better than this bill.

I go on to note also the words in the submission, in two parts, from the Office of the Guardian for Children and Young People. A letter of 26 August 2016, authored by Amanda Shaw, who is the Guardian for Children and Young People in this state, was sent to the Nyland Royal Commission Response Unit. They write in response to the government's request for feedback about the draft functions and powers (this is, of course, response to the draft that was circulated). In that response to the draft, they note:

This feedback must be contingent given that what is available for comment is o nly part of a larger Bill. The Objects of the Bill and definitions within an interpretations clause may be of particular importance. F or example, the extract contains no guidance about what might constitute 'matters of a systemic nature' for the purposes of section 14(3)(a).

I urge the government to outline what does constitute interpretation for 'matters of a systemic nature'. It is a key part of this bill and I think it deserves to be put on the record in this place. The letter goes on:

It also is difficult to substantially respond to this request given the lack of detail about possible changes to the powers and functions I hold as Guardian for Children and Young People (GCYP), nor potential impacts upon the roles of the Child Death and Serious Injury Review Committee (CDSIRC), Council for the Care of Children (CCC) , Health and Community Services Complaints Commission (HCSCC) and the South Australian Ombudsman.

Of course, in the final bill we have indeed seen changes in those roles, yet they were not part of that draft exposure that was put out for consultation. It was put out for consultation in a quite hurried fashion and, while the goodwill of the sector meant that many did participate in that process, I fear that we are going to make errors due to our haste, and this concerns me. The letter goes on:

The extract does not make clear which Advocacy and Oversight Bodies may be incorporated within (or be established by ) the B ill and the possible implications of the associated legislative changes.

We have a bill before us that was not fully consulted on in the government's own process. I find that extraordinary, and the fact that we cannot have all of the submissions to that particular process I find even more extraordinary. The Guardian goes on to say:

Without seeing the whole B ill I am unable to provide considered feedback about its potential impact on the functions of the GCYP as currently provided for in the Children's Protection Act 1993.

This should be ringing alarm bells, as I say, not just within this council but of course across this parliament. I commend this particular letter to members of this council for their further information. I also note that it refers to the previous submissions made by the guardian's office and also that a subsequent September 2016 document has been made publicly available, responding to the draft Children and Young People (Oversight and Advocacy Bodies) Bill 2016.

In that particular submission, I note that the Guardian supports the creation or continuation of three of the four entities accommodated by the bill in the context of comments made in their submission, noting that the purpose, role and reporting relationships of the Child Development Council (CDC) need further thought. I could not agree more. This bill needs further thought. I fear that it is not going to be given that due consideration.

I believe the Guardian's submission goes on to make some quite relevant points for informing our debate and raises significant concerns, particularly with regard to the CDC but also a range of other things. It actually makes some recommendations that this bill should be amended to include. I have to draw the council's attention to some of these, because some of them, while minor, will be quite profound in their impact.

The first of their suggestions in 2.1 is to add an objects clause. They have noted that, in terms of addressing matters, there needs to be a commitment to the voice of children and young people and the need to clarify the relationships between the four entities within this bill. The second is staff and resources. It asks why we are not carrying over the Child Protection Act's current wording around staff and resources, that is:

The Minister must provide the Guardian with the staff and other resources that the Guardian reasonably needs for carrying out the Guardian's functions.

Why is that wording not here in this bill to ensure that these entities, in this piece of legislation, are appropriately resourced, as they are currently provided for? Why are those words missing from this bill with regard to all the entities, or at least some of the entities? If the government could provide a response to that, that would certainly inform the council. It is also raised that the Guardian's staff status as public servants is not clarified within this bill. Of course, it also notes that the commissioner's staff will not have this status. Again, can the government provide information about why those two entities are treated differently and what the implications of that will be?

The submission is actually quite extensive. As I said, I am only going to touch on a few things here and in a moment I will seek leave to table this document for the information of all in this council, but it raises considerable concern again about the Child Development Council. It states:

Further consideration of intended relationships (and relative responsibilities ) between the four entities subject to the B ill is needed. There is potential for duplication or confusion of roles. The concept of an advisory or reference group is supported , but further consideration needs to be given to its relationship to the Commissioner.

In terms of the reporting obligations, the Guardian's September submission asks, 'Why have the requirements for distributing reports when parliament is not in session been removed?' That is a good question and we would like an answer. It is also not clear why the status of such a report 'as a report of Parliament' has also been omitted.

There does not appear to be an explicit reciprocal capacity for the Guardian to advise and make recommendations for the Commissioner for Children and Young People.

Why is this the case? Can the government provide a response on that? There is broad support for this bill, but I also note that the Law Society's submission echoes some of the concerns raised by both YACSA and the Guardian, and who knows how many others who made submissions to this piece of legislation. The Guardian's submission, also in section 3.5, notes on the Charter of Rights for Children and Young People in Care that:

Division 3 of the CPA provides detailed requirements for the Charter of Rights for Children and Young People in Care. This charter disappears in the Bill , although a new and generic Charter for Children and Young People is included in Section 52.

The existing Charter expresses the rights of a disadvantaged group of children and young people that are core entitlements prescribed in international covenants and domestic law and policy. It is not appropriate to think that a generic Charter for all children and young people can replace or incorporate these matters.

The Charter of Rights for Children and Young People in Care was created in 2006 in consultation with children and young people in care, their carers and workers. The adoption of the measure as part of the passage of the Children's Protection Amendment Bill 2009 was particularly important. Young people in care, participating in Youth Parliament, successfully advocated to the Minister and other members of Parliament. I t would be sad if the bill ignored this serious and tangible result of the work of advocates of this highly disadvantaged group of children and young people.

As required by the CPA the Charter was reviewed by children and young people in care in 2015, accepted by the Minister and tabled in parliament earlier this year.

It begs the question: this is a process that did indeed listen to the voices of children and young people, that has incorporated it for almost a decade, was recently reviewed and accepted, and yet here we are a year later dumping it from a piece of legislation without, I think, the courtesy and the debate that it deserves.

With those few words I will note that, while the Greens welcome what is a large step forward in terms of progressing towards having a children and young people's commissioner and having a system that fixes the system that we have that is broken, we urge this council not just to get it done but to get it right. With that, we will be asking questions in the committee stage, we will be expecting answers, we will be seeking clarification and I will be moving amendments to give effect to some of those concerns that I have raised today. We look forward to working cooperatively to get this right and not to be back here in two years' time because we rushed something through parliament and did not give it the due diligence that the children of this state deserve.

With that, I table the document of the Office of the Guardian for Children and Young People Responding to the draft Children and Young People (Oversight and Advocacy Bodies) Bill 2016. I table the Law Society's response to the Nyland Royal Commission Response Unit, dated 16 December 2016. I table the letter to the Nyland Royal Commission Response Unit, dated 26 August 2016, from the Office of the Guardian for Children and Young People. I table the submission of the Youth Affairs Council of South Australia, dated September 2016, on the Children and Young People (Oversight and Advocacy Bodies) Bill 2016.

Debate adjourned on motion of Hon. J.M. Gazzola.

 

Legislative Council
Tuesday 18 October 2016

Children and young people (Oversight and advocacy bodies) bill 2016

In committee.

Clause 1.

The Hon. K.L. VINCENT: Dignity for Disability has some reservations about supporting the original bill and looks forward to seeing some amendments which, we understand, are in the pipeline as I speak. A fundamental shift is needed for the system to truly hear and understand the experiences of young people. The royal commission often heard of children's needs not being met because attention was focused on what the adults around them needed and wanted rather than what they needed and wanted.

The large number of reports, inquests and inquiries on child protection, particularly in recent years, shows the persistence of the problem in South Australia and, indeed, elsewhere. Notwithstanding those reports' recommendations, the system remains largely ill-equipped to respond to the needs of many young people at risk in our community and in out-of-home care.

In her report, Commissioner Nyland states that the royal commission's recommended reforms will not fix the system. At best, they may improve it and start a process of ongoing evaluation and improvement. In her inquiry, Robyn Layton envisaged a framework that was never fully realised, and how we proceed now seems to be based on what we implemented back then out of a suite of recommendations, when we chose a different structure than what was originally recommended.

Commissioner Layton envisaged a children's commissioner and, dragging our feet behind other states, to say the least, it seems that South Australia will finally move to that model. That is a good thing. Yet, what is that role about? If we want to give children and young people a voice, and goodness knows it's certainly the rhetoric that we've been hearing, then it must be about the whole of children's lives, not just when things go wrong. Child protection matters. In fact, it is impossible to think of a single issue in our community that matters more, ultimately.

Yet, young people's lives, for most children, most of the time are good, and take place in an environment of home, childcare, preschool, school and in the community. Our children's commissioner needs to be concerned with these lives as much as with the lives of children and young people who have come to the attention of the authorities for the terrible cases of abuse and neglect that we will hear about seemingly far too often, particularly in recent times. The Aboriginal Legal Rights Movement and Aboriginal community leadership reference group have expressed concerns about this bill and, in particular, that it does not clearly articulate provisions for Aboriginal children and young people. I know that certain members have moved to improve that.

Yet, we know that Aboriginal children make up 50 per cent of child protection matters before our courts. Close to 40 per cent of children who live in out-of-home care in South Australia are Aboriginal, and half of the children in residential care are Aboriginal, so we must ensure fair representation within the oversight structures that we are now establishing. From a document provided to me from the Aboriginal Legal Rights Movement, the ALRM, I quote:

The state cannot assume that without legislated responsibility specific to Aboriginal perspective and cultural safety, that non-Aboriginal people within the oversight and advocacy bodies have the skills and knowledge that will ensure the rights, safety and wellbeing of Aboriginal children and young people.

We need to recognise the over-representation, in particular, of Aboriginal children within the oversight of our child protection system, and that it is urgent. The passage of this bill has become urgent to meet the time lines set by the government, and this is not the best way to enact our democracy. The groups who have made their views known will, I trust, have their suggestions included in this bill, and Dignity for Disability certainly look forward to further debate and supporting those views being enacted. For that reason, we support the bill.

The Hon. K.J. MAHER: I thank the honourable member for her contributions on this bill and her interest in this matter and I want to thank other honourable members in this place. I know many have had ongoing discussions with the government and with each other in making sure that we can progress this bill as quickly as possible.

The Hon. S.G. WADE: I would like to briefly reflect on what has happened in the period since I gave my second reading contribution. I mentioned in my second reading contribution that, whilst the opposition appreciated the bill wasn't perfect, we didn't want perfection to get in the way of progress, and that we were supporting the government progressing the bill without amendment. In the intervening period, a group of child welfare and protection agencies and offices made submissions to government, and the Attorney-General, on behalf the government, indicated that he was favourably disposed to a number of those amendments.

That has led to discussions amongst a number of members of this place, which will lead to a series of amendments being put before the council this afternoon which, in normal circumstances, would be inappropriately short notice. I think all members have had the SACOSS letter. The amendments do focus around the SACOSS issues. What I mean by SACOSS is I am talking about the organisations on behalf of whom SACOSS is speaking. I think SACOSS, in that letter, appropriately indicates that none of these issues are new: that they are well ventilated issues.

There has been significant and constructive discussion, certainly between the government and the opposition, and I understand the government and other members of this house, to fine-tune those amendments, so I believe that they are an improvement to the bill. They are an improvement to the bill that can be made in a timely fashion.

In my discussions with the Attorney-General he certainly acknowledged that there may well be further opportunities to improve the statutory framework, but he indicated that the government does have legislation that it is bringing forward, particularly in the child protection bill, which will give this council and the parliament as a whole an opportunity to take up other suggestions that have been made in these discussions.

So, if you like, the government has taken the opportunity to improve the bill in the context of the suggestions made in the SACOSS letters. It is fully acknowledged that there are other very worthy points raised in submissions such as that from the Australian Medical Association and the Law Society; those matters appropriately can be addressed as we look further at strengthening the statutory framework.

In that context, I welcome the undertaking that the Attorney-General has given to brief members of the parliament in the near future on the government's legislative program coming out of the Nyland royal commission, and I hope that we as a parliament can play our part constructively to strengthen the statutory framework, which is our part in providing a better environment for the development, well-being and protection of the children of this state.

The Hon. T.A. FRANKS: Briefly, I rise on behalf of the Greens to give some information about the process in which we are about to engage in this committee stage. It is at short notice that some of these amendments sit on our chamber tables, but in this committee process I am looking forward to a very positive outcome. With that said, I thank Brette Schumann from the Attorney' office, who provided the submissions I had been asking for in the second reading, some time around the South Australian storm weather event, so I particularly thank her for that.

Certainly the Greens strongly are advocating that we come into this chamber fully informed, particularly where the public and particular advocacy groups have made submissions to a particular piece of legislation. It is the best outcome if all members of the parliament, not just the government benches, are well informed.

I also thank SACOSS, along with the other groups who have raised as a group, in a considered and organised way: YACSA; the Office for the Guardian for Children and Young People; the Aboriginal Legal Rights Movement; the Child and Family Welfare Association SA; and, the Council for the Care of Children in that letter sent to crossbenchers and particular key members engaged in this debate, outlining their key concerns with the bill as it stood as it was passed in the other place, that is: the referencing of the UN Convention on the Rights of the Child; the UN Convention of the Rights of Indigenous Peoples; the involvement of children and young people in the recruitment of the commissioner and in reporting the focus on the role of the Children's Development Council on the outcomes, framework for children and young people; retaining the independence and capacity of the Guardian for Children and Young People; recognising the special needs of Aboriginal children and young people for providing for the appointment of a commissioner for Aboriginal children and young people; and, reviewing the legislation after two years, given the specific time factors and time pressures that saw this bill pass through the other place in less than half an hour.

I thank them for the work and the effort that they put into that. I have certainly taken up and circulated amendments to affect a number of those calls made by the sector, but I note that today the government has also circulated amendments and the Hon. John Darley has had amendments for some time.

I will indicate my position as we progress through the committee stage, but certainly I commend the government for coming to the table, and thank the Hon. Stephen Wade in particular for his leadership role in this and look forward to a speedy committee stage, given the difficult circumstances in which we find ourselves.

Clause passed.

Clauses 2 and 3 passed.

New clauses 3A and 3B.

The Hon. K.J. MAHER: I move:

Amendment No 1 [Emp–1]—

P age 5, after line 25—Insert:

3A—Meaning of rights, development and wellbeing

(1) For the purposes of this Act, a reference to the rights of children and young people will be taken to include a reference to rights recognised in accordance with statutory and common law, rights set out from time to time in the United Nations Convention on the Rights of the Child and rights set out in any other relevant international human rights instruments.

(2) For the purposes of this Act, a reference to the development of children and young people will be taken to include a reference to the physical, social, emotional and intellectual growth of each individual from birth through to adulthood.

(3) For the purposes of this Act, a reference to the wellbeing of children and young people will be taken to include a reference to—

(a) the care, development, education, physical and mental health and safety of each individual from birth through to adulthood; and

(b) the cultural welfare and wellbeing of children and young people.

3B—State authorities to seek to give effect to United Nations Convention on the Rights of the Child etc

Each State authority must, in carrying out its functions or exercising its powers, protect, respect and seek to give effect to the rights set out from time to time in the United Nations Convention on the Rights of the Child and any other relevant international human rights instruments affecting children and young people.

The government has received a wide range of responses in relation to the bill as a result of the public and community consultation that took place during September 2016. A number of not-for-profit agencies in particular contributed by providing often detailed submissions in relation to specific clauses. A recurring theme that arose during consultation was the need to incorporate a reference to the UN Convention on the Rights of the Child in the bill and how that impacts on the interpretation to be given to the rights, development and wellbeing of children and young people.

I note for the sake of completeness that this provision was originally included at clause 4 in the government's Child Development and Wellbeing Bill 2014, which has now been superseded by this bill. The government has listened and has filed an amendment to insert this into this bill, which will assist all those who either work with or seek to apply this legislation.

Firstly, this amendment provides a definition of the phrase 'rights, development and wellbeing' for the purposes of legislation. Secondly, it requires the state authorities to seek and give effect to the United Nations Convention on the Rights of the Child and any other relevant international human rights instruments affecting children and young people. I commend the amendment to the committee.

The Hon. S.G. WADE: I indicate that the opposition will be supporting the amendment. By way of commentary, I note that the SACOSS letter also wanted the UN Convention on the Rights of Indigenous People to be specifically referenced, but I acknowledge that the government's amendment does refer to any other relevant international human rights instrument which, of course, would include that convention.

To be frank, in recognition of the Hon. Kelly Vincent from Dignity for Disability, other relevant conventions you would expect to be picked up there would include the United Nations declaration in relation to the rights of people with disability. We want to include all children. This convention in this legislation is appropriately referenced specifically, but there is clearly, on the face of the government's own amendment, no intention to exclude other relevant conventions.

I would also indicate that clause 3B is only, shall we say, a segment of what was clause 8 in the government's Child Development and Wellbeing Bill, and I also had a similar provision in the 2014 Commissioner for Children and Young People Bill that I brought forward as a private member's bill. My understanding from the government is that the broader principles enunciated in clause 8 of the Child Development and Wellbeing Bill might well find their way into the next raft of legislation, and so it is not intended to, shall we say, diminish the other principles that were in that legislation.

The Hon. T.A. FRANKS: On behalf of the Greens, I indicate that we will be supporting the government amendment. While the Greens have tabled a similar, more extensive, amendment, this is actually potentially a neater way of inserting these provisions, these very important provisions recognising the United Nations Convention on the Rights of the Child and other important human rights international instruments within our state legislation with regard to this particular act.

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

The Hon. K.L. VINCENT: Just very briefly, on behalf of Dignity for Disability, I am happy to also support the amendment. I take on board the comments of other colleagues in terms of it not necessarily being the most efficient mode to try to reference every relevant document. However, I am confident that this would reflect the principles of many important documents, including, as my colleague the Hon. Mr Wade pointed out, the United Nations Convention on the Rights of Persons with Disabilities.

Indeed, we know that people with disabilities generally, but particularly children, are tragically at a much greater risk of abuse and neglect compared to the general population and therefore would love to see this sort of specific work around that. We recognise that it is more efficient in terms of drafting legislation to have a more overarching wording, but look forward to some direct action being taken on those issues.

New clauses 3A and 3B inserted.

Clause 4 passed.

New clause 4A.

The Hon. J.A. DARLEY: I move:

Amendment No 1 [Darley–1]—

Page 5, after line 31—Insert:

4A—Complaints etc. to be acknowledged in writing

If a person reports a matter to, or otherwise brings a matter to the attention of, the Commissioner, the Guardian, the Committee or the Council, the Commissioner, Guardian, Committee or Council (as the case requires) must, by notice in writing to the person, acknowledge receipt of the report or matter.

This amendment is the first in a group of amendments which relate to the same thing: very simply, it is to provide that all complaints that are made to any of the bodies in the act are to be acknowledged in writing. As previously stated in my second reading contribution, this amendment was suggested by Belinda Valentine who was frustrated that it was so difficult to provide information on when and who she had contacted as she had not been provided with any documentation or follow-up on many of her contacts with Families SA. This amendment is to ensure that there is a paper trail to increase accountability.

The Hon. K.J. MAHER: I thank the honourable member for his amendment but indicate that the government will oppose this amendment. The government opposes this amendment on the basis that it constitutes an administrative matter and is unnecessary for inclusion in the legislation. It constitutes a matter of office procedure and good practice with any agency or business to acknowledge receipt of correspondence or complaints received from members of the public. I am advised that most if not all state agencies, such as the Ombudsman, already adhere to this practice. Further, the government notes for the sake of completeness that the Child Death and Serious Injury Review Committee referred to in this amendment does not receive complaints directly from members of the public.

The Hon. S.G. WADE: The minister acknowledged that the Ombudsman, for example, as a comparable agency, does acknowledge receipt of matters. I also wonder whether or not the commissioner would be an officer who is reviewable by the Ombudsman and therefore a failure of administrative law or practice could then be referred to the Ombudsman. In a way this relates to not just this amendment by the Hon. Mr Darley but in particular would relate to amendment No. 2 which is a report to the minister.

The PRESIDENT: Minister?

The Hon. S.G. WADE: If the minister is seeking further advice, I understand there are other members who want to ask questions so we might come back to that.

The Hon. D.G.E. HOOD: I indicate that Family First will support the Hon. Mr Darley's amendment.

The Hon. T.A. FRANKS: The Greens will be supporting the Hon. Mr Darley's amendment. We think that while it might be administrative and a very small clerical thing it is quite an important thing to happen. Given that we have seen in the past that it has not happened, let us make it happen.

The Hon. K.L. VINCENT: I am inclined to support this and, as other speakers would say, you would hope it would be unnecessary, but better safe than sorry. However, I wonder if I might ask a question of the mover in terms of his understanding of the way it is written. I wonder if allowing or requiring people to be notified 'in writing'—whether the Hon. Mr Darley could define 'in writing'; for example, could that include an email or another form other than a letter? I am envisioning a situation where we might unintentionally (or at least I hope unintentionally) exclude people who are not able to read in hard copy print; for example, people who are blind or have a vision impairment, and also how information might be given to people with low literacy issues relating to other experiences or needs as well.

The Hon. J.A. DARLEY: My amendment was intended to cover email and any other form so as to convey the message to the complainant that their concern has been received.

The Hon. K.J. MAHER: In answer to the earlier question asked by the Hon. Stephen Wade, I am advised that the Ombudsman would be able to exercise jurisdiction in relation to the commissioner.

The Hon. S.G. WADE: Thank you minister for your response. The opposition will be supporting the government amendment on this. The reason being that this is a very broad amendment, it talks about not just the commissioner, but the guardian, the committee and the council. All four bodies identified in this legislation will be required to respond to every matter.

In spite of the number of times that I have tried to assure the government and the community, through the media, that the Liberal Party does not seek a broad-based complaints body, it must be accepted that there is a risk that a significant number of members of the community may misconceive the role of the commissioner and see it as a broad-based complaints body. The Liberal team would hate the good work of the commissioner to be distracted, and, for that matter, the other three bodies listed in this amendment, by having to establish cumbersome administrative processes merely to acknowledge complaints that should never have been referred to them.

I thank the government for its response in terms of the Ombudsman question, because if we have a commissioner, or for that matter any of these other bodies that are deaf to the legitimate entreaties of the public, they have other recourses, to the Ombudsman or by other means. If it is a problem that we see that there is ineffective communication between the commissioner or any of these bodies, it is something we can revisit in the review process that we will consider later. Let us put it this way, I think there is a significant risk that should be avoided at this stage. If it is an issue that is alive in two to three years' time, let us address it then. I am not supporting this amendment.

New clause negatived.

The Hon. T.A. FRANKS: New clauses 4A, 4B, 4C and 4D repeat the content of the successful government amendment, so I will not be moving them.

Clause 5 passed.

Clause 6.

The Hon. K.J. MAHER: I move:

Amendment No 2 [Emp–1]—

Page 6, after line 7—Insert:

(2a) The Governor may, by regulation, establish a scheme for the recruitment of the Commissioner (and recruitment of the Commissioner must comply with that scheme).

This amendment seeks to amend clause 6 of the bill, which sets out how the commissioner for children and young people is to be appointed and removed from office. Specifically, the amendment seeks to insert subclause (2a) regarding the recruitment scheme for the commissioner for children and young people. The amendment allows the Governor to, by regulation, establish a scheme for the recruitment of the commissioner and the recruitment of the commissioner must comply with that scheme. This amendment has been borne out of the need to address ongoing concerns regarding the involvement of children and young people in the appointment process of the commissioner. I urge support for the government amendment.

The Hon. S.G. WADE: I indicate that the opposition will be supporting the government amendment. I remind members of the council that the Nyland royal commission specifically recommended that the voice of the child and young people in the recruitment of the commissioner be included and in that context referred favourably to the submission from the council.

In that context SACOSS, and again I am using shorthand for the SACOSS-led group of stakeholders, reiterated their desire that there be the children's and young people's voice in the process. I concur with the government that it would be unfortunate to have an overly cumbersome, inflexible process built into legislation. The opposition supports it being in the form of the regulation. From a parliamentary point of view, it would be very unusual to develop a process that ensures a voice of children and young people.

However, with this, the onus is on the sector to develop a workable process to ensure an authentic voice and then, once the sector has supported the government for that model, it can be reviewed by this house by way of consideration as a regulation. I think this is a workable way of reflecting the Nyland royal commission without having the process bound to an overly rigid process.

Amendment carried; clause as amended passed.

New clause 6A.

The Hon. T.A. FRANKS: I move:

Amendment No 2 [Franks–1]—

Page 7, after line 21—Insert:

6A—Assistant Commissioner for Aboriginal children and young people and other Assistant Commissioners

(1) The Governor—

(a) Must appoint an Assistant Commissioner to assist the Commissioner in carrying out functions under this Act as they relate to Aboriginal children and young people; and

(b) May appoint such number of other Assistant Commissioners as the Commissioner thinks necessary.

(2) An Assistant Commissioner will be appointed on conditions, and for a term (not exceeding 7 years), determined by the Governor and specified in the instrument of appointment.

(3) A person appointed to be an Assistant Commissioner is, at the end of a term of appointment, eligible for reappointment but cannot hold office for terms (including any term as an Acting Commissioner) that exceed 10 years in total.

(4) An Assistant Commissioner is subject to the direction and control of the Commissioner, but is otherwise independent of direction or control by the Crown or any Minister or officer of the Crown.

(5) An Assistant Commissioner has the functions conferred on the Assistant Commissioner by the Commissioner.

(6) An office of Assistant Commissioner becomes vacant if the holder—

(a) dies; or

(b) completes a term of office and is not reappointed; or

(c) resigns by written notice to the Commissioner; or

(d) is nominated for election as a member of an Australian Parliament; or

(e) becomes an insolvent under administration within the meaning of the Corporations Act 2001 of the Commonwealth; or

(f) is convicted of—

(i) an indictable offence against the law of this State; or

(ii) an offence against the law of this State that is punishable by imprisonment for a term of at least 12 months; or

(iii) an offence against the law of another jurisdiction that, if committed in this State, would be an offence of a kind referred to in a preceding paragraph; or

(g) is sentenced to imprisonment for an offence (whether against a law of this State or another jurisdiction); or

(h) is removed from office by the Governor under this section.

(7) The Governor may remove an Assistant Commissioner from office on the presentation of an address from both Houses of Parliament seeking the Assistant Commissioner's removal.

(8) An Assistant Commissioner is a senior official for the purposes of the Public Sector (Honesty and Accountability) Act 1995.

This creates the position of commissioner for Aboriginal children and young people. I do so in response to the letter referred to previously by those in the sector calling for this. It would be of no surprise that this has been identified as an area of particular need, given the poorer outcomes of Aboriginal children and young people in the areas of education, health, justice and child protection. Indeed, that is a compelling argument while the establishment of an additional commissioner would focus on those particular children and young people.

The submission that was authored by those sectoral groups noted that the model that is established in Victoria under the Victorian children and young people act 2012 includes provisions for the establishment of additional commissioners alongside the principal commissioner in that particular act. It was requested that a similar provision be sought here.

Aboriginal children and their families and communities should be involved in all aspects of this particular area. I think nobody would argue against Aboriginal inclusion in this particular place. It is an indictment on our society that while Aboriginal people represent such a small numerical part of our population, they are overrepresented in all the wrong places. That is certainly a compelling argument for an additional commissioner charged with that particular responsibility to be considered.

I am not expecting to get the numbers in the chamber on this occasion, but I thought it was an important point to raise at this part of the debate. I would hope that it would be taken into consideration as we get to debates around the review and what debates we see coming from the government in the future in this place.

The Hon. K.J. MAHER: I thank the honourable member for her amendment and her remarks on the amendment. The government opposes the amendment at this time on the basis of views expressed in the Child Protection Systems Royal Commission report. I note on page 599 of the commission's report, it states:

The Commission does not believe the appointment of assistant commissioners is required. However, the Children's Commissioner should have the capacity to engage experts and commission research as necessary, and funding should be provided for this...

I am advised that the ability to engage commission research are measures already included in this bill. In relation to funding, there are government amendments filed, and I foreshadow that members will be moved to address this. Accordingly, the government will not support the amendment at this stage. I note the government will also be moving an amendment to introduce review mechanisms for this legislation which, as the honourable member pointed out, will provide an opportunity to examine this matter further.

The Hon. S.G. WADE: The opposition will also be supporting the government's amendments. As the minister indicated, the Nyland royal commission did specifically address this issue, but I do join the Hon. Tammy Franks, and I know the minister also has a strong commitment to the welfare of Aboriginal children and young people. I certainly think it is appropriate that this house regularly reflects on what we can be doing, particularly for advancing the welfare of Aboriginal children and young children. As the Hon. Tammy Franks rightly points out, their current outcomes for development, wellbeing and protection are extremely poor, and we have a shared commitment to address that.

The Hon. K.L. VINCENT: I can see where the numbers lie, nonetheless Dignity for Disability is inclined to support this amendment. One of my staff members who is trained in the early childhood field often says a quote which is something like, 'Every child needs at least one person in their life who is absolutely crazy about them.' We would hope that the assistant commissioner would be that person for Aboriginal children and young people.

Of course, in a perfect world we would not need a specific role looking after those issues. The same goes for disability, as I am sure many people have heard me talk about in this place before. However, the fact is that we do not yet live in a perfect world, so we think that the more eyes and ears there are out there on the ground, working for and with children and young people, particularly those who are most at risk and most marginalised, the better. Therefore we would have been happy to see such a role established but, as I said, we can see where the numbers lie. I just wanted to put on the record my feelings about this.

The Hon. D.G.E. HOOD: I think the Hon. Ms Vincent makes a good point. Obviously this amendment will be defeated on this occasion, but I point out that this is something that Family First would otherwise be inclined to support. I think Aboriginal children are a unique case, a special case if you like, and to have a dedicated commissioner and the ability to have assistant commissioners where appropriate is something I think has merit. We have a real problem in some of the most remote areas of Australia, as members in this chamber know well, and if this amendment goes any way to assisting in dealing with that problem then I believe it warrants support.

The Hon. J.A. DARLEY: I will be supporting the Hon. Tammy Franks' amendment.

New clause negatived.

Clauses 7 and 8 passed.

New clause 8A.

The Hon. T.A. FRANKS: I move:

Amendment No 4 [Franks–1]—

Page 8, after line 4—Insert:

8A—Staff and resources

The Minister must provide the Commissioner with the staff and other resources that the Commissioner reasonably needs for carrying out the Commissioner's functions.

This is very much addressing the concerns of the sector, and certainly the concerns that were strongly put in the Greens' second reading contribution on this bill. We need to make sure not only that we get this right but also that this commissioner is resourced—it is as simple as that—by ensuring that we carry over the language that was previously giving that certainty, here for the commissioner but obviously also for the other bodies that are involved in the area of child development and protection. We will be doing the appropriate thing in this chamber, ensuring that we are not just setting people up to fail but that we are actually setting them up to succeed.

The Hon. K.J. MAHER: I thank the honourable member for her amendment. As I think I indicated in an earlier contribution, in terms of resourcing for research and other reasons, the government supports this and will support the Hon. Tammy Franks' amendment. We will withdraw our amendment to the same effect very shortly.

The Hon. S.G. WADE: The opposition will also be supporting the Hon. Tammy Franks' amendments and we will be treating any subsequent resource clauses as consequential, whoever moves them.

New clause inserted.

Clauses 9 to 11 passed.

Clause 12.

The Hon. T.A. FRANKS: I move:

Amendment No 5 [Franks–1]—

Page 9, after line 36—Insert:

(7a) For the purposes of this section, a reference to a State authority will be taken not to include a reference to the Guardian.

This amendment clarifies the role of the guardian, and I thank the minister for addressing my concerns about that in his response to the second reading speeches. Again, it was asked for by the sector. Certainly, I think it is better to be as clear as we possibly can in this piece of legislation that the guardian is able to have that role in relation to the commissioner made clear—that, indeed, it is not to include a reference to the guardian.

The Hon. K.J. MAHER: I rise to indicate that the government is opposed to this amendment which seeks to exclude the guardian as a state authority for the purposes of this act. The consequential effect of this amendment, if passed, is that the commissioner for children and young people will not be able to exercise his or her functions or powers should there be, for whatever reason, a grievance regarding the guardian in the future.

In the government's view, this is not appropriate and there should be oversight mechanisms for all the agencies and authorities working with children and young people. The guardian's important job involves working with and for our most vulnerable children and it is important that those functions are able to be reviewed if there is an issue. Far from undermining the guardian's independence, this legislation provides the commissioner with appropriate powers to allow for public confidence in the integrity of the guardian's work, on the occasion that they should ever be undermined.

The Hon. S.G. WADE: The opposition supports the government in opposing this amendment.

The Hon. T.A. FRANKS: Obviously, the numbers will not be here in terms of support. I look forward to the government taking a very similar position when we come to the role of SAPOL in terms of having security checks.

Amendment negatived; clause passed.

New clause 12A.

The Hon. J.A. DARLEY: I move:

Amendment No 2 [Darley–1]—

Page 9, after line 38—Insert:

12A—Right of person to report refusal or failure to conduct inquiry under section 12 to Minister

(1) If—

(a) a person brings a matter to the attention of the Commissioner that the person believes should be the subject of an inquiry under section 12; and

(b) the Commissioner refuses or fails to conduct such an inquiry,

then that person may, in a manner and form determined by the Minister, report that failure or refusal to the Minister.

(2) On receiving a report under subsection (1), the Minister must—

(a) determine whether or not the matter to which the report relates should, in the Minister's opinion, be the subject of an inquiry under section 12; and

(b) if the Minister determines that the matter should be the subject of an inquiry under section 12—advise the Commissioner of the determination; and

(c) notify the person who made the report of the determination and of any other action taken, or to be taken, by the Minister in respect of the report.

This amendment simply gives people the right to approach the minister about a matter which they have previously taken to the commissioner in relation to which the commissioner has declined to take action. As I mentioned in my second reading speech, this amendment was made in conjunction with Belinda Valentine who wanted further accountability for these matters. If the minister believes that the matter does require investigation, they must advise the commissioner and the complainant of this.

The Hon. K.J. MAHER: I rise to indicate that the government opposes this amendment. It does so primarily on the basis that it has the potential to infringe on the independence of the commissioner for children and young people. Secondly, it does not address the legitimate circumstances that would lead to a failure or refusal by the commissioner to conduct an inquiry pursuant to clause 12 of the bill.

Clause 5(2) of the bill states: 'The commissioner is independent of direction or control by the Crown or any minister or officer of the Crown.' Although technically not an oversight function that attracts any binding determinations, this amendment unnecessarily creates an additional step for the hearing of a grievance which, in the government's opinion, should stop with the commissioner for children and young people.

The government notes that nothing currently prevents a member of the public communicating a matter of concern to the minister, so there is no need to include such a provision in the legislation. Further, aside from the reference to making the report in a manner and form determined by the minister, absent from the amendment is what information will be considered in the minister making the determination.

For example, will the minister be required to provide reasons to the commissioner? Will the minister have to have the requisite powers to seek further information from agencies? Would the person with the grievance provide this information when making the report, or would the minister be required to conduct their own investigation and source such relevant information? These are some of the issues that arise with the amendment.

Secondly, in accordance with the recommendations of the Child Protection Systems Royal Commission report, the commissioner for children and young people has coercive powers to conduct an inquiry pursuant to clause 12 of the bill which is, however, limited to systemic issues affecting children and young people. Aside from limited prescribed circumstances, he or she will not have the capacity to investigate individual grievances or complaints. Subclause (2) of clause 12 of the bill sets out the three matters the commissioner for children and young people must hold a suspicion of in order to conduct an inquiry with the powers of a royal commission. These are that:

(a) the matter raises an issue of particular significance to children and young people; and

(b) the matter is of a systemic nature rather than being limited to an isolated incident; and

(c) it is in the public interest to conduct the inquiry.

A person who holds a view that their grievance concerns a systemic issue relating to children and young people may of course be ultimately proven correct. However, as stated in subclause (1) of clause 12 of the bill, it is at the commissioner's absolute discretion to conduct an inquiry into certain matters relating to the rights, development and wellbeing of children and young people.

Another legitimate reason not to undertake an inquiry may be that the grievance in question may not satisfy all three requirements set out in subclause (2) of clause 12, so thereby would cause the commissioner for children and young people not to be able to conduct an inquiry pursuant to that clause. Another reason for refusal or failure to conduct an inquiry could be that the commissioner for children and young people considers the matter to be vexatious or frivolous. For those reasons, the government will not be supporting the amendment.

The Hon. S.G. WADE: I indicate that the opposition will be supporting the government in opposing this amendment for many of the reasons the minister gave. If I could add a couple of others, I am concerned about the use of the word 'believes' in paragraph (a). Many beliefs are subjectively well-founded but not objectively able to be substantiated.

I am concerned about the importance of the commissioner being able to take up matters at their absolute discretion. I am sure that there will be myriad issues that the commissioner would love to address and that they believe would meet all three criteria but, within their resources, within what they believe is going to produce the most value to addressing systemic issues for children in terms of development, wellbeing and protection, they choose not to undertake an inquiry. Commissioner Nyland was very clear that the commissioner should be able to take up inquiries at their 'absolute discretion'. That phrase is used in this legislation. We should respect the independence of the commissioner to make those choices.

Another concern I have is that, if there is going to be an appeal from the commissioner, why would it go to a politician? It is very important that we do not politicise these processes. On the other side of the coin, if the minister, having had representation from somebody who has not been able to get an issue raised with the commissioner, thinks that there are important issues to be addressed, there is nothing to stop the minister using other processes to pursue them, whether they be departmental or, for that manner, parliamentary committees, independent inquiries and the like.

I believe this is not a helpful addition to the set. Going back to our earlier discussion about the Ombudsman, to the extent that the commissioner is failing to act reasonably, people may well have recourse to the Ombudsman also.

The Hon. T.A. FRANKS: The Greens will be opposing this amendment. We do so with concerns that there should not be ministerial interference or oversight of the commissioner. Indeed, it should be as independent as we can make it, and this sets up some expectations that there may be political influence.

Ministers do, of course, have a range of mechanisms, as the Hon. Mr Wade has just stated, to undertake inquires where appropriate. The issue that seeks to address, though, is not having inquires: it is actually about a lack of action and a lack of ministerial oversight where there have been areas of quite significant breaches of child protection and child abuse in our systems.

That ministerial oversight can be addressed, I think, in different ways, and certainly we saw both the opposition and the government oppose the simple receipt of a 'complaint in writing' amendment. That is absolutely an area that I think the government and the relevant ministers should be complying with and perhaps be forced to comply with, particularly when we are talking about these topics in this state.

The Hon. K.L. VINCENT: Having given this some thought and having listened to the debate, I am also inclined to oppose this amendment. I completely understand and empathise with the sentiment with which it has been moved, and I deeply appreciate, as I am sure we all do in this place, the work of people like Belinda Valentine. However, I can see a number of practical issues with this proposal, many of which my colleagues have already outlined very eloquently, so I do not intend to rehash them.

The only thing I can add is that one would hope, I assume, that a person appointed to a role such as a commissioner would be qualified and experienced enough to differentiate between levels of seriousness of different issues and what should or should not be investigated within the jurisdiction of their role, and I believe that that professional judgment should, in general, be trusted.

I would also loathe to see the commissioner's time being taken up any more than it has to be with dealing with complaints. Of course people should have the right to complain and the right to pursue other avenues, but I think the commissioner has to maintain a freedom from political influence, as has already been outlined, and the space to keep a major focus on systematic change. For those reasons, as well as for those already outlined, I am inclined to add my opposition to this particular amendment.

New clause negatived.

Clauses 13 to 20 passed.

New clause 20A.

The Hon. T.A. FRANKS: I move:

Amendment No 6 [Franks–1]—

Page 13, after line 18—Insert:

20A—Staff and resources

The Minister must provide the Guardian with the staff and other resources that the Guardian reasonably needs for carrying out the Guardian's functions.

This amendment ensures that the minister must provide the guardian with staff and other resources that the guardian reasonably needs for carrying out the guardian's functions. I raised this matter in my second reading contribution. It was an area of concern, raised most obviously by the guardian's officers themselves but echoed by other representatives from the sector. We need to ensure the resourcing so that we are setting up these people to do the best possible job they can, and that is the least we can do. I imagine that the government will be looking favourably on it, given that it has sought to move similar amendments.

The Hon. K.J. MAHER: I thank the honourable member for her amendment and can confirm that the government does look favourably upon it. For reasons previously explained at amendment No. 4 [Franks-1], the government supports this amendment and has filed amendments to the same effect, but we will withdraw it should the committee see fit to pass this one.

New clause inserted.

Clauses 21 and 22 passed.

Clause 23.

The Hon. T.A. FRANKS: I move:

Amendment No 7 [Franks–1]—

Page 14, lines 22 to 34—Delete clause 23 and substitute:

23—Participation of children and young people in development of practices etc

The Guardian must establish and maintain processes to ensure the participation of children and young people in strategic, policy or systemic practice development or review processes.

This is a new area of the debate, but was certainly, again, raised in my second reading contribution and at the behest of the Office of the Guardian for Children and Young People. It deletes the current clause 23 and substitutes:

23—Participation of children and young people in development of practices etc

The Guardian must establish and maintain processes to ensure the participation of children and young people in strategic, policy or systemic practice development or review processes.

This wording is more attractive both to the Greens and to the office of the guardian, because it gives a greater deal of flexibility. It is less prescriptive but still achieves the goals that I think we all share in this place.

The Hon. K.J. MAHER: I rise to indicate, I think for the third time in a row, that the government will be supporting the Hon. Tammy Franks' amendment on the basis that it acknowledges and mandates the participation of children and young people in important processes such as policy and systemic practice development, which is of great value to all. Again, like the last two that we have supported, I indicate that the government has an amendment to a similar effect—don't we?

The Hon. S.G. Wade interjecting:

The Hon. K.J. MAHER: Not the same one, but to a similar effect. I can indicate that, should the committee be minded to pass this amendment, we will withdraw that one.

The Hon. S.G. WADE: You will not need to, because the clause will have already been deleted, but be that as it may. The opposition also supports the amendment of the Hon. Tammy Franks. We welcome the move towards a less prescriptive approach in terms of the mode of engagement but share the commitment of both the Hon. Tammy Franks and the government to make sure that the voice of children and young people remains strong in these processes.

Reflecting on our discussions over the last few days, and for that matter the last few years, achieving the voice of children and young people in these processes is not easy. That does not mean it is not vital, and I wish the guardian and all the people involved in the processes under this legislation success in finding mechanisms that can ensure that the voice of children and young people is heard.

The Hon. K.L. VINCENT: Dignity for Disability is happy to support this amendment from the Hon. Ms Franks and thanks her for putting it forward. It is almost quite sad really that we need to sit around here and mandate the fact that children and young people should be included in something that is ultimately all about their rights and wellbeing, but better safe than sorry, I think, is the best approach.

I suppose you could see the fact that the amendment is quite broad in its description or definition of consultation as a negative, but I am inclined to see it as a positive, in that different people and different groups may well need to be consulted in different ways. Dignity for Disability looks forward to working with whoever we have to following the passage of this bill (which we hope will be very soon, as I am sure we all do) particularly around how this might impact children and young people with disabilities or other related needs. We would particularly like to ensure things like interpreters for children of different cultural backgrounds, including deaf and hard of hearing children, and also the inclusion of communication assistance or communication partners for children and young people who may communicate in ways other than verbalising.

A number of things need to be considered here, and that is why we think that a broad definition is relatively beneficial, so that we are not too prescriptive and that we actually give children and young people the freedom to be included in the way that is most conducive to them being involved and being themselves. For those reasons, doubled with the fact that, as I said earlier, children and young people with disability are particularly overrepresented in out-of-home care and their voices need to be heard in order to make systematic change to get them out of that situation as much as possible, we are happy to support this amendment.

The Hon. S.G. WADE: I was just reflecting on the fact that this amendment only refers to the guardian but the government has indicated, and rightly so, that the general functions of the commissioner already require it to promote the participation of children and young people in the making of decisions that affect their lives, and presumably that also includes in the operation of the commissioner. I think this clause, in relation to the guardian, complements what is already an expectation of the commissioner.

The Hon. T.A. FRANKS: Just to clarify: this section 23 actually required the guardian to adopt a formal advisory committee and that structure was seen as problematic, particularly with the group of quite vulnerable children and young people who are involved in this area and, indeed, a more flexible approach. This was the wording that the guardian's office submitted for their particular purposes. Section 23, however, does not apply to the commissioner.

Amendment carried; clause as amended passed.

Clauses 24 to 30 passed.

New clause 30A.

The Hon. T.A. FRANKS: I move:

Amendment No 8 [Franks–1]—

Page 17, after line 2—Insert:

30A—Staff and resources

The Minister must provide the Committee with the staff and other resources that the Committee reasonably needs for carrying out the Committee's functions.

Again, this goes to staff and resources. In this particular case the minister must provide the committee with the staff and other resources that the committee reasonably needs for carrying out the committee's functions. It is a similar debate in terms of ensuring the resourcing.

The Hon. K.J. MAHER: Like the previous amendments that go to the resourcing, the government will be supporting the Franks amendment No. 8 and will not be proceeding with ours that have a similar focus.

New clause inserted.

Clauses 31 to 36 passed.

Clause 37.

The Hon. J.A. DARLEY: They were consequential to my other amendments.

Clause passed.

Clause 38.

The Hon. J.A. DARLEY: The same.

The CHAIR: Consequential.

Clause passed.

Clause 39 passed.

Clause 40.

The Hon. T.A. FRANKS: I move:

Amendment No 9 [Franks–1]—

Page 21, after line 16 [clause 40(3)]—Insert:

or

(g) the Guardian.

This inserts into clause 40 referral of matters to inquiry agencies, etc., not affected in the definition of inquiry agency. It adds after:

(a) South Australia Police; or

(b) the Ombudsman; or

(c) the State Coroner; or

(d) the Independent Commissioner against Corruption; or

(e) the Commissioner for Public Sector Employment; or

(f) the Health and Community Services Complaints Commissioner.

a new line that states:

or

(g) the Guardian.

The Hon. K.J. MAHER: I rise to state that the government supports this amendment and, once again, will not be proceeding with a government amendment with a similar effect if the committee supports this.

Amendment carried; clause as amended passed.

Clauses 41 to 47 passed.

New clause 47A.

The Hon. T.A. FRANKS: I move:

Amendment No 10 [Franks–1]—

Page 24, after line 2—Insert:

47A—Staff and resources

The Minister must provide the Council with the staff and other resources that the Council reasonably needs for carrying out the Council's functions.

Again, this goes to staff and resources and provides that the minister must provide the council with the staff and other resources that the council reasonably needs for carrying out the council's functions.

The Hon. K.J. MAHER: I indicate government support.

New clause inserted.

Clause 48 passed.

Clause 49.

The Hon. T.A. FRANKS: I move:

Amendment No 11 [Franks–1]—

Page 24, lines 27 to 39 [clause 49(2)(c) and (d)]—Delete paragraphs (c) and (d)

My amendment deletes paragraphs (c) and (d). Those are under the functions and powers of council, (c) to keep under review the operation of the Children and Young People (Safety) Act 2016 and Family and Community Services Act 1972, so far as it affects the interest of children, and (d) to provide advice to the minister on:

1. Creating environments that are safe for children;

2. Raising community awareness of the relationship between the needs of children for care and protection, and their developmental needs;

3. Initiatives involving the community as a whole, for the protection or care of children;

4. Policy issues that may require government action or legislative reform; and

5. Priorities for research.

This does so in an attempt to address the concerns of the duplication that were raised by the sector.

The Hon. K.J. MAHER: I rise to indicate government support for this amendment and, again, I will not be proceeding with the amendment in similar terms. For the sake of getting it on the record, clause 49 of the bill provides that the primary function of the child development council is to prepare and maintain the outcomes framework for children and young people. This clause also sets out further functions in addition to the preparation of the outcomes framework of the council under the measure.

This amendment proposes to delete paragraphs (c) and (d) of clause 49(2) of the bill, thereby limiting the functions of the council to preparing and maintaining the outcomes framework for children and young people. Once again, as many of these amendments have, this amendment arises from feedback received from the government, but primarily from the non-government sector during public consultation, which expressed the view that the outcomes framework should be the exclusive focus of the child development council. The main concern raised with the government was that clause 49, as currently drafted, appeared to have some overlap between the functions of the child development council and the commissioner for children and young people.

To avoid any confusion arising from this overlap we are acting as requested and limiting the child development council's function to the outcomes framework at this stage. I note, for the sake of completeness, however, that clause 49(2)(e) of the bill is retained, which states: 'Further functions may be assigned to the council under this act or any other act by the minister, should it be required in the future.'

The Hon. S.G. WADE: I certainly welcome the steps being taken to avoid duplication, but, presumably, the commissioner could look at the operation of the outcomes framework?

The Hon. K.J. MAHER: I am advised that that is the case.

Amendment carried; clause as amended passed.

Clauses 50 to 54 passed.

Clause 55.

The Hon. K.J. MAHER: I move:

Amendment No 10 [Emp–1]—

Page 27, lines 15 to 19 [clause 55(1)]—Delete ', the Guardian or the Council may, by notice in writing, require a specified person (whether or not the person is a State authority, or an officer or employee of a State authority) to provide to them such information, or such documents, as may be specified in the notice (being information or documents in the possession of the person or body that the Commissioner, Guardian or Council' and substitute:

or the Guardian may, by notice in writing, require a specified person (whether or not the person is a State authority, or an officer or employee of a State authority) to provide to them such information, or such documents, as may be specified in the notice (being information or documents in the possession of the person or body that the Commissioner or Guardian

This amendment applies to clause 55(1) of the bill, and relates to government amendment 9, and is necessary as a result of the refinement in scope of the child development council's function. As a result, clause 55 of the bill currently enables the commissioner, the guardian or the council to require personal body, whether or not the person or body is a state authority, to provide them certain specified information documents. Failure to comply with the request is an offence.

The clause also makes procedural provision in relation to noncompliance with a requirement by a state authority. As stated, given the amendment to restrict the scope of the child development council's function to the preparation and maintenance of the outcomes framework for children and young people, it is no longer appropriate that the council be given the power prescribed by clause 55 of the bill, and so all references to the council have been deleted.

The Hon. S.G. WADE: The opposition is inclined to support this amendment, but is it conceivable that information that the council might require for the development and monitoring of the outcomes framework might well be information that it will require as state authorities, and, in spite of the fact of the narrowing of the focus of the council, that there might still be value in the council having this power?

The Hon. K.J. MAHER: My advice is that any relevant information they need should be able to be obtained through the minister, but it is a point that we are happy to have a look at when we bring back the future legislation that goes to the Child Protection Act.

The Hon. S.G. WADE: I thank the minister for his response.

The CHAIR: Minister, do you want to also move your amendments 11 to 13; they're all related?

The Hon. K.J. MAHER: Mr Chairman, amendments 11 to 13 are consequential to the amendment before us now, so, with the indulgence of the committee, I will move them en bloc:

Amendment No 11 [Emp–1]—

Page 27, line 22 [clause 55(2)]—Delete ', Guar dian or Council' and substitute ' or Guardian’

Amendment No 12 [Emp–1]—

Page 27, line 28 [clause 55(4)]—Delete ', Guardian or Council' and substitute ' or Guardian’

Amendment No 13 [Emp–1]—

Page 27, line 33 [clause 55(4)(b)]—Delete ', Guardian or Council' and substitute ' or Guardian '

The Hon. S.G. WADE: Then we would regard them as consequential also.

Amendments carried; clause as amended passed.

Clauses 56 to 63 passed.

New clause 63A.

The Hon. T.A. FRANKS: I move:

Amendment No 12 [Franks–1]—

Page 32, after line 5—Insert:

63A—Review of Act

(1) The Minister must cause a review of the operation of this Act to be conducted and a report on the review to be prepared and submitted to the Minister.

(2) The review and the report must be completed before the second anniversary of the commencement of this Act.

(3) The Minister must cause a copy of the report submitted under subsection (1) to be laid before both Houses of Parliament within 6 sitting days after receiving the report.

I note that the government does have an amendment which differs slightly in that it states that that review would be completed before the third anniversary of the commencement of the act. The sector asks for two years. I have put two years. I think, given the importance of this issue, it warrants eyes on it sooner rather than later, and, while either is actually quite a tight time frame in terms of our regular pieces of legislation being reviewed, I think this is a special case where we should be making sure that that review is happening—once there has been enough operation of the act, but indeed in a timely way. I am also cognisant of the electoral cycle and the three years falling well beyond that electoral cycle. I think there is nothing like an election to put a bit of pressure on as well to make sure that we do this right.

The Hon. K.J. MAHER: I thank the honourable member for her amendment and appreciate the motivation behind the amendment. However, on this occasion, the government has filed a similar amendment, as foreshadowed; that is, that it is three years rather than two years, and the government prefers the three years rather than the two years, which we think reflects a more appropriate time period for the act to be in operation before a review is undertaken. In short, a two-year period, in the government's view, is premature. I appreciate the sentiment there, but we do have an opposing amendment for the committee to support three rather than two years.

The Hon. S.G. WADE: I indicate that the opposition will be supporting the government. With all due respect to the Hon. Tammy Franks, I think the government's amendment more accurately reflects the request of SACOSS. SACOSS says the legislation should be reviewed after two years, but the Hon. Tammy Franks' amendment, as I understand it, would require that the review be completed before the second anniversary, so it would be having the review undertaken earlier than SACOSS sought.

As a member who has been in this place for a while now, I do welcome the new phrasing of these review provisions. Members will note that it states:

The review and the report must be completed before the third anniversary of the commencement of this Act.

I appreciate that it does run the risk that somebody could start a review the day after the act has started and give us, shall we say, a hollow review. However, having been around for a while, I think there is a far greater risk for protracted, delayed reviews that frustrate the parliament in consideration of legislation, and that is a far greater mischief than premature reviews.

The CHAIR: Minister, do you want to move your amendment as well?

The Hon. K.J. MAHER: I move:

Amendment No 14 [Emp–1]—

Page 32, after line 5—Insert:

63A—Review of Act

(1) The Minister must cause a review of the operation of this Act to be conducted and a report on the review to be prepared and submitted to the Minister.

(2) The review and the report must be completed before the third anniversary of the commencement of this Act.

(3) The Minister must cause a copy of the report submitted under subsection (1) to be laid before both Houses of Parliament within 6 sitting days after receiving the report.

This is the government amendment No. 14 standing in my name, and I think I have outlined the reasons why.

The Hon. K.L. VINCENT: Whether it is two or three years, I think the fact of the matter is we need a review. Given that the South Australian community has invested such large amount of money and time in having this commission, we owe it to the South Australian community to track how those recommendations are being implemented or not being implemented, as the case may be. We owe it to the South Australian community to be open and transparent about how that is happening. Quite frankly, I think if you were to go onto the street right now and pull a group of people aside and ask them whether they think it should be two or three years, I highly doubt that there would be a strong opinion either way.

So we would have been happy to support two years, but we are also happy to support three, just to ensure that there is at least some semi-timely review in place and because we owe that to this community and to these young people that we are discussing right here and now.

The Hon. S.G. WADE: I completely agree with the Hon. Kelly Vincent's comments, and completely with the spirit of both the government's and the Hon. Tammy Franks' amendments. The task of the commissioner, as I understand it, is not specifically to monitor the implementations of the Nyland recommendations. My recollection, from looking at the report of the commissioner, was that she shares the impatience of the honourable member, if I can put it in those terms. My understanding is that she has asked for an indication of the government's response to her recommendations even before the end of this year.

I think the Hon. Kelly Vincent raises a very important issue, which is the responsibility of this parliament and the whole community to stay focused on improving outcomes for children and young people. In that context—I do not want to get in trouble with the Clerk in terms of revealing the internal proceedings of a select committee—it would be fair to say that the Select Committee on Statutory Child Protection and Care has already discussed whether it has a role or whether this parliament has a role in monitoring the implementation of the Nyland royal commission.

I know the Attorney-General, as I indicated earlier, is keen to brief members on the government's legislative program, so I would just indicate to the honourable member that, in supporting the government's amendment, the opposition is in no way thinking that this is a task—accountability on Nyland can wait three for years; it will be an ongoing process starting now. In that context, if the minister were able to give an update on the government's response to the Nyland royal commission—and I appreciate that is not strictly within the terms of this bill—it may be useful for the house.

The Hon. K.J. MAHER: I thank the honourable member for his question. I am advised that the government intends to provide responses by the end of the year in line with the time line proposed by the royal commission.

The Hon. T.A. FRANKS: Very briefly—and I note the words of the Hon. Kelly Vincent, who looks quite remarkably different to myself—yes, I do think that a person on the street, if you pulled them aside, would not differ too much about whether they thought the review should happen in two or three years. However, I think they would agree that it should happen—and it was not on the government bill; it is the Legislative Council that has put this review.

It should have always been in there. I say to the government, given that we are really rushing some of this legislation, please ensure that those review provisions are given the due process and the due importance they should be given, and that they appear in future bills in this area.

The Hon. K.L. VINCENT: I might just offer a point of clarification to the Hon. Mr Stephens—I mean Mr Wade, I am sorry (men, they all look so much alike). I was not insinuating that it is the role of the commissioner per se to implement the recommendations of the commission except in the broad sense of working to improve the lives of children and young people.

I simply meant that it was the role of the commissioner to do their job and also the role of us, as a parliament, to ensure that we are proactively pushing this and that this does not become just another shiny report that sits on a shelf. That is all I meant, and I just wanted to clarify that I was not insinuating that the commissioner would have a direct role in literally implementing the recommendations of the report.

The Hon. T.A. Franks' amendment negatived; the Hon. K.J. Maher's amendment passed; new clause inserted.

Clause 64 passed.

Schedule passed.

Title.

The Hon. K.J. MAHER: Given the amendments that have been passed, particularly amendment No. 13 [Franks-1], I move:

Delete the words 'and the Youth Advisory Committee'.

Amendment carried; title as amended passed.

Bill reported with amendment.

Third Reading

The Hon. K.J. MAHER (Minister for Employment, Minister for Aboriginal Affairs and Reconciliation, Minister for Manufacturing and Innovation, Minister for Automotive Transformation, Minister for Science and Information Economy) ( 17:48 :37 ): I move:

That this bill be now read a third time.

Bill read a third time and passed.

 

 

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