Children and Young People (Safety) Bill Second Reading

HANSARD LEGISLATIVE COUNCIL
22ND OF JUNE 2017

Children and Young People (Safety) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 30 May 2017.)

The Hon. P. MALINAUSKAS (Minister for Police, Minister for Correctional Services, Minister for Emergency Services, Minister for Road Safety) ( 11:36 :56 ): I wish to take this opportunity to thank members for their contribution to the debate on the bill. On 16 May 2017, the second interim report of the Select Committee on Statutory Child Protection and Care in South Australia was tabled. The government thanks the members of that committee and those persons and groups who gave evidence to assist the committee to undertake the report. The government also notes the three recommendations made by the committee that were as follows:

1. the Government develop, with community engagement and consultation, a bill to amend or replace the Family and Community Services Act 1972 to better protect children and young people by facilitating early intervention, and by strengthening and supporting families;

2. the Children and Young People (Safety) Bill 2007 or a new bill should be considered by the Parliament in concert with the bill develop ed pursuant to Recommendation 1; and

3. the Government and the Parliament work together with the aim of passing both pieces of legislation by the end of 2017.

The government is pleased to advise that it has arranged a meeting in June with stakeholders to progress the early intervention work for the purpose of drafting a second and separate statute on this subject. Participants invited to that meeting represent both the government and non-government sector and are from a range of backgrounds and fields, such as research, medical and advocacy service providers in the field of child protection in the state.

Before commending the bill to members, I am advised that the government seeks to clarify comments made by the Hon. Ms Franks during debate on the second reading. Ms Franks' comments in her second reading were as follows, 'I was also informed in my briefing today that the government does not intend to bring forth an amendment to the Family and Community Services Act any time soon.'

As I have already said, the Department for Education and Child Development is currently progressing work on early intervention and potential Family and Community Services Act amendments, and has already made contact with the community sector to progress this work. The representations at the briefing were that the Children and Young People (Safety) Bill did not need to be delayed, and should not be delayed, for the FaCS Act work to progress.

The final matter to be addressed in the second reading is the ongoing debate and concern, both in this place and amongst interested groups and organisations within the community, regarding the emphasis in the bill on the safety of the child or young person; that is, protecting them from harm in lieu of best interests of the child. On behalf of the government, I cannot emphasise enough the rationale for this approach as continuing the Coroner's recommendation in the inquest into the death of Chloe Lee Valentine. The Coroner made it clear in paragraph 22.12 as follows:

I recommend that the Child ren's Protection Act 1993 be amended to make it plain that the paramount consideration is to keep children safe from harm. Maintaining the child in his or her family must give way to the child's safety.

The government undertook that necessary reform just under two years ago and seeks to carry this across into the future, as it has done at clause 7 of the bill. The government asks members to have this first and foremost in their minds when the bill progresses through the committee stage.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. A.L. McLACHLAN: I will start by saying that the Liberal Party will seek to report progress immediately ahead of the government's amendments that were filed yesterday, as we will need to consult on the same and also attain party room approval, but we are happy to proceed through committee up until that point.

The Liberal Party has filed a large number of amendments and it is our intention to proceed with those amendments. We obviously have a different view, particularly in relation to clause 7 as expressed by the minister in the summing up of the second reading. Can I indicate to the government that at this stage the Liberal opposition remains unconvinced by the Brokenshire amendments, which I understand are also opposed by the government, and we will not be supporting those at this stage.

The Hon. T.A. FRANKS: Also for the clarification of the house, I indicate that the Greens will be supporting the three government amendments that were filed yesterday. We will be opposing the Brokenshire amendments and we will be supporting some of the Liberal amendments, but not all.

Clause passed.

Clauses 2 to 6 passed.

Clause 7.

The Hon. A.L. McLACHLAN: I move:

Amendment No 1 [McLachlan–1]—

Clause 7, page 9, lines 23 to 25—Delete clause 7 and substitute:

7—Best interests of children and young people paramount

(1) The best interests of children and young people must always be the paramount consideration in the administration, operation and enforcement of this Act.

(2) Without limiting subsection (1), if there are competing interests in relation to a child or young person it is to be presumed that protecting the child or young person from harm is in the best interests of the child or young person (however, that presumption is rebuttable where the risk of harm is outweighed by other interests).

This is the amendment to clause 7 that has been subject to considerable discussion and debate in the community and also in the other place. As the minister outlined in the second reading, it is the government's position that the paramount consideration should be expressed in terms of safety. This, for those of you who take an interest in the other place, was debated at great length and somewhat in a circular fashion, in my view, in relation to what the meaning of the words was and what their effect would be if this bill was passed in that form.

The Liberal Party has consulted widely. It has taken its time to give meaningful consideration to the views of the stakeholders. The Liberal Party party room has formulated the version of the amendment that is before the chamber, which makes the paramountcy the best interests of the child, as has been advocated for by a large section of the community and community groups that have a deep and abiding interest in these issues, but also with a reverse burden where it makes it clear that the primary starting point, when you are making that consideration, is the safety of the child, but in circumstances (and I would imagine extremely limited circumstances) that can be rebutted. It would be my view that it can be rebutted, using the balance of probabilities.

For the benefit of the chamber for consideration of this amendment, I should say that weight has been placed on the views of the Law Society, the Australian Medical Association (SA branch), the South Australian Council of Social Service, the Child and Family Welfare Association of South Australia, the Council for the Care of Children, the Youth Affairs Council of South Australia and the Child Protection Reform Movement. They issued a joint statement in May 2017, which has guided much of the considerations of the Liberal Party when formulating its amendments.

We have also taken note of correspondence from the Law Society that was sent to various members of the chamber and of the other place in May 2017. I refer to one that came to myself on 5 May 2017 from the President of the Law Society, Tony Rossi. I thought, for the benefit of honourable members of the chamber, I would read the relevant section of the correspondence I received from the President of the Law Society in relation to best interests. It states the following:

The Society submits that the best interests of the child must be the primary consideration of the Bill. I refer to the Society's reference to with Article 3.1 of the United Nations Convention on the Rights of the Child (UNROC). Acting in the best interests of the child and determining what is in the child's best interests was regularly noted in the Child Protection Systems Royal Commission Report as a key factor a nd it permeates through the recommendations.

The Bill as it currently stands gives primacy to the safety of the child and by doing so fails to recognise that children have a number of rights which must be considered in reaching life changing decisions about their future. The Bill is inconsistent with the Oversight and Advocacy Bodies Act 2016 (SA) which incorporates the UN C ROC principles , giving primacy to the child's best interests throughout.

The Law Society President goes on to say:

The Society submits that the best interest s framework should be consistent amongst all legislation that concerns the rights and interests of children. The concept of acting in the best interests of the child is both well - established and understood. Unfortunately, the Government has demonstrated a lack of understanding in relation to the two concepts.

I will also quote from the joint statement from the stakeholders, particularly the seven stakeholders I have referred to previously. It states:

Chapter 2, Part 2, Priorities in the operation of this Act must be redrafted. Section 7 must be deleted. We submit that the best interests of the child must be the primary consideration. This is in accordance with Article 3.1 of the United Nations Convention on the Rights of the Child (UNCROC). We accept that in the context of child protection, the 'safety of children' is central and this would be encompassed under the best interests' principles. The Bill as it currently stands fails to recognise that children have a number of rights which must be considered in reaching life changing decisions about their future. The best interests' framework should be consistent amongst all legislation that concerns the rights and interests of children.

It goes on to state, as the Law Society did:

The Bill … is … inconsistent with the Oversight and Advocacy Bodies Act 2016 …

And also that:

Acting in the best interest of the child and determining what is in the child's best interest was regularly noted in the Nyland Report.

The Liberal Party has placed weight on the views of these bodies. These bodies have, though, taken the view that they would rather the vote not proceed through this chamber and that existing legislation remain in place or, at that very least, that we delay the operation of the bill. The Liberal Party, as I expressed in my second reading, has a longstanding tradition of debating bills and exploring whether the bill can be amended to a point where it meets the needs of the community, and also in understanding that the government is prosecuting an agenda—of which it has made the public aware. With those comments, I might leave it to other members of the chamber to express their views and debate the merits of this amendment.

The Hon. S.G. WADE: I thought I might add to the wise remarks of my honourable colleague by reflecting on some of the legislative history in relation to this clause, which has become a matter for discussion in the context of the amendments. Up until April 2016, the objects of the child protection act included a statement that the objects of the act are to ensure that all children are safe from harm. The act was amended after the Coroner's inquest into the Chloe Valentine death, and it was done in response to a recommendation from the Coroner, namely, recommendation 22.12, which states:

…t h at th e Child ren's Protection Act 1993 be amended to make it plain that the paramount consideration is to keep children safe from harm. Maintaining the child in her or his family must give way to the child's safety.

The Attorney-General, in urging members to support this bill, has referred back to that inquest and to that previous consideration. I make two observations: first of all, the legislation before the 2016 changes did not refer to protecting children from harm, it referred to keeping children safe from harm, but I do not propose to try to unpack whether that is a substantive difference. However, I would make the point that neither this parliament nor the Coroner, in making those amendments in 2016, was suggesting that the best interests of the child was not the paramount consideration.

In that regard, I would like to refer to excerpts from the coronial inquest. This is the findings of the Coroner in relation to the death of Chloe Valentine. Section 5.1 states:

Social workers working with parents of young children, including such parents who are themselves under 18 years, must act at all times in the interests of the child. They must be trained to see that the interests of the child and an irresponsible parent are in conflict. You cannot act in the best interests of both. Any attempt to do so will inevitably lead to confusion and muddle headed thinking such as we have seen throughout this Inquest.

In 5.3 it goes on to state:

I am firmly of the view that social workers must accept that the child's best interests can and do conflict with the parents' sometimes. In some cases, such as that of Chloe and Ashlee, they conflicted most, if not all of the time. It was not possible to act in a way that was best for both of them. So Ashlee's needs and interests had to give way to Chloe's. They must become the standard approach in dealing with these cases.

Later in the findings, in section 11.5, the Coroner reflected on, I suppose, the cultural values that influenced this sort of outcome out of child protection agencies, and favourably quotes from writings of a Dr Sammut. Section 11.5 states:

Dr Sammut notes that the emphasis on family preservation means that child removal occurs only as a last resort. He refers to attempts to work with parents to address bad parental behaviours, particularly those relating to alcohol and drugs. He makes the following remarks which might have been written about Ashlee Polkinghorne and Chloe Valentine.

I will quote Dr Sammut's remarks made by the Coroner:

Even when parents are demonstrably incapable of properly caring for their children, child protection services failed to take appropriate action to protect vulnerable children with well-founded and ongoing safety concerns.

Too many children are being left in dangerous situations due to the misguided bias towards keeping abusive and neglectful families together, which has swung the pendulum too far in favour of protecting the 'rights' of dysfunctional biological parents at the expense of the best interests of children.

I will just pause and reflect that the contrast that Dr Sammut is referring to at the end of that section is not between the safety of the child and the best interests of the child, it is between the rights of dysfunctional biological parents on the one side and the best interests of the children on the other. I believe that the Coroner's recommendations and his statements reflect the primacy of the best interests of the child.

In that regard the Coroner was completely in concert with relevant landmark reports in South Australia. In particular, I refer honourable members to the Layton report on child protection. The Layton report called for a state plan to protect children, and the second goal of that plan was to ensure a voice for children and young people and promoting their best interests. Again, the Nyland royal commission reasserted the importance of focusing on the best interests of the child.

So, I think it is important that we do not see the best interests of children being in conflict with their need to be safe from harm; rather, I think the parliament should better see keeping children safe from harm as part of their best interests. It may well be that, from time to time, a significant potential benefit should be pursued, in contrast to a relatively less significant potential risk of harm.

The opposition's amendment to clause 7 asserts the paramountcy of the best interests of children but takes up the warning of the Chloe Valentine inquest that the systems in this state and right across the Western world have not been good at focusing on the voice and interests of a child, and that protecting children and keeping children safe from harm is so important that it should be the starting point of our consideration of their best interests, particularly if people have an episodic engagement with a child and their duty to act to protect the child.

Perhaps even in the context of being a mandatory reporter they may not have all the data they need to assess what might be in that child's best interests. If they are in an immediate situation of seeing harm and responding to it, this amendment says that, if you are in a situation where you can protect the child from harm, you should assume that it is in their best interests to protect them from that harm and act accordingly.

The legislation, of course, is only a framework and I think discussions I have had with a number of stakeholders in this area highlight that whatever we do in this parliament today and in the days ahead will not be enough to address the cultural and other challenges within the child protection services in this state. This legislation needs to be as clear as it possibly can be. We need to have clear policies and guidelines that help people involved in child protection to understand the legislation and to express it through policies and action, we need to have effective training on those policy guidelines and legislation and we need to have effective management to supervise those who implement them.

It is important that we get the principles right. The Liberal Party believes that, consistent with the Layton report, the Nyland report and the Coroner's inquest in the Chloe Valentine case, the best interests of the child should be paramount and those best interests are best served by using protection from harm as a starting point.

In terms of the stakeholders, I appreciate that there is a significant diversity of view, and in this context I particularly acknowledge the views of Belinda Valentine, Chloe Valentine's grandmother, and I certainly support her staunch advocacy for children and the generosity of time and wisdom that she has shown towards myself and the opposition parties to help us as we work through these issues.

It would be fair to say that no stakeholder with whom I have been engaged on this bill is perfectly happy with any particular model, that is why we have so many options on the table. The Liberal Party has tried diligently to come to what we think is the best balance, highlighting the paramountcy of the best interests of the child, but making sure that protecting children from harm is the primary stepping off point.

The Hon. K.L. VINCENT: The Dignity Party is not inclined to support this amendment at this stage, particularly given that, in particular from my conversations with Belinda Valentine, my understanding of her viewpoint is that the legislation as it stands is too vague when it comes to protecting the safety of the child, and that is exactly how we ended up with a situation like the one the Hon. Mr Wade just outlined, where more importance was placed on making sure that Chloe Valentine maintained contact with her biological family, and that outweighed the fact that she was not safe with that biological family.

We believe that the best interests of the child are important, but at the end of the day the legislation is there to set a bare minimum standard, and I believe that we can have policy subordinate to that which will ensure the best interests in that broader context. At the end of the day, we need to tighten this up to ensure that children are primarily safe from harm, and the government's wording as it stands will achieve that.

It is particularly important that we read 'the safety or protection of the child from harm' in concert with the next clause, clause 8—Other needs of children and young people. I quote from that clause as it stands at the moment:

(1) In addition to the paramount consideration set out in section 7, and without derogating from that section, the following needs of children and young people are also to be considered in the administration, operation and enforcement of this Act:

(a) the need to be heard and have their views considered;

(b) the need for love and attachment;

(c) the need for self-esteem;

(d) the need to achieve their full potential.

In my view the conversation is becoming a little circular, particularly if you read clauses 7 and 8 in concert with each other. I think we have already achieved what we set out to achieve, and my concern is that if we continue this very circular conversation we will end up with something that is just as vague as what is deemed to be problematic at the moment. With those few words, the Dignity Party is not inclined to support this particular amendment to clause 7 but absolutely does understand the intent with which it has been put forward.

The Hon. T.A. FRANKS: I rise on behalf of the Greens to put our position. We will be supporting the opposition amendment, and the reason we will do so is because we have taken the advice of those in the sector and are also highly cognisant of today's joint media release, titled 'Government set to progress flawed child safety bill on budget day', put out by SACOSS, the Australian Medical Association of South Australia, the Child and Family Welfare Association, the Youth Affairs Council of South Australia, the Council for the Care of Children and the Child Protection Reform Movement.

That press release goes on to say that the government had promised a second complementary bill in response to the criticism with regard to this bill, but that there has been limited progress on this front. I ask the minister to clarify what the date is in June that this sectorwide meeting with government and non-government will be held, because we are already well into the month of June and the head of SACOSS has no idea what date this meeting is. While that question is not exactly related to this clause, I do think it is important, in terms of the trust and faith of the sector, that this bill is being debated in good faith with regard to that particular concern.

In terms of this amendment, the Greens do not think this is a perfect amendment but we think the government position falls far shorter than this does. We also note that the best interests of the child in the Valentine case probably would have been to retain a connection with the biological family—being Chloe's grandmother, not her mother. So, I think that is a flawed argument, to think that a connection with biological family was trumping child safety in that case; indeed, a connection with biological family would have been to keep Chloe with Belinda.

The consultations we have had with the sector, those groups I have just read out that have put out this joint press release, are people who are well respected and who deal with these issues day to day. You can, of course, add the Law Society to that list. These are groups that are not looking at a single case; they are looking at a breadth of cases, they are looking to the United Nations Convention on the Rights of the Child (CRC). As I said, I think this particular Liberal amendment, whilst not perfect, does address the concerns that have rightly been raised about having not a clause based on a single case, in some ways, but a clause that will serve the best interests of all South Australian children. With those few words, I indicate that at this stage the Greens support this Liberal amendment, although we find it far from perfect.

The Hon. P. MALINAUSKAS: The government opposes the opposition amendment. The principle of the best interests of the child are set out in the United Nations Convention on the Rights of the Child. The CRC was adopted in 1989 and ratified by Australia in December 1990. It makes the best interests of the child at least a primary consideration, and sometimes paramount, in actions and decisions concerning children.

The principle of the best interests of the child is one of the fundamental principles of the CRC, underpinning the interpretation of all children's rights and freedoms. As the Attorney-General stated in the other place when a similar amendment was moved, the government submits that the bill is consistent with the CRC on the basis that clause 8 of the bill expressly details a range of needs concerning children and young people that are characterised as being in the best interests of the child or young person. Further, clause 8 of the bill is given significant status in terms of priorities in the operation, administration and enforcement of the legislation, which is also consistent with the CRC.

The phrase 'best interests' is also a familiar principle derived from the Family Law Act 1975, which lists the factors that the court must consider in determining the child's best interests. I take the opportunity at this point to identify that the opposition amendment makes no such clarification to the bill in order to provide guidance to those changes with interpreting this legislation. For this reason, the opposition amendment lacks certainty and will fail in practice due its subjective nature, which is not acceptable to the government.

The bill addresses child protection where the state is required to intervene in order to protect children and young people from harm or from further harm being imposed. Unlike a custody dispute in the Family Court, more often than not there are no appropriate guardians or caregivers available for children and young people whose circumstances invoke the state's child protection legislation. This bill cannot, therefore, be compared on an equal standing with the Family Law Act 1975 as this opposition amendment seeks to do. However, perhaps the most compelling argument as to why this amendment should be opposed is from the recommendation made by the Coroner in the inquest into the death of Chloe Valentine, who made clear in recommendation 22.12 that:

I recommend the Children's Protection Act 1993 be amended to make it plain that the paramount consideration is to keep children safe from harm. Maintaining the child in her or his family must give way to the child's safety.

As members will recall, the recommendation, amongst others, was implemented by the government in the children's protection amendment act 2016. This amendment, if passed, will completely wind back and undo a reform called for by the Coroner of the state, passed by this very parliament little more than a year or so ago. In fact, it goes further and creates a situation that is even more confusing in terms of its clarity, or lack thereof, than what was in place at the time of the Coroner's recommendation.

For those charged with the administration, operation and enforcement of this legislation, under this amendment that will now have a paramount consideration which itself has a paramount consideration when they are competing considerations, as well as a reverse presumption when there are other interests. This amendment muddies the waters so significantly in terms of its complexity in its practical application that this stands as a compelling reason for members to oppose it. It is for these reasons the government remains firm in its position that this amendment should be opposed and urges members to do the same.

Just one more point, in response to the Hon. Tammy Franks' question regarding when the meeting is taking place, I am advised that it has taken place on the 13th of this month and that SACOSS was in attendance and made a contribution.

The Hon. J.A. DARLEY: Whilst I can understand what the opposition's amendment is trying to do, I am afraid I cannot support it at this stage.

The Hon. T.A. FRANKS: My understanding from my briefing from SACOSS is that they thought that was a private meeting that was then to lead to a more public meeting. Is there a further meeting to be held with the sector and the government to resolve some of these issues and to look at the complementary bill?

The Hon. P. MALINAUSKAS: I am advised that there is an intention to have another meeting, but at this stage we are not aware of what the exact date is.

The Hon. S.G. WADE: I want to respond both to the minister and to the Hon. Kelly Vincent in relation to the relevance of clause 8. I thought paramount means paramount so that, in clause 7, if it states that the paramount consideration is to protect children from harm, that trumps clause 8. Other interests are other interests.

The Hon. P. MALINAUSKAS: Clause 8 is there, I am advised, to underpin considerations, but safety is the paramount consideration.

The Hon. S.G. WADE: With all due respect, minister, I cannot see how protecting people from harm has any relevance to promoting their self-esteem, relating to their love and attachment and pursuing their full potential. I do not see how they underpin protection from harm. They are other needs, and that is why the clause states 'other needs'. My point is that giving paramountcy to protection from harm runs a significant risk of depriving them from benefits.

The Hon. P. MALINAUSKAS: I think it is a bit of a circular argument. I make it clear that, in clause 8, this operates in addition to the paramount consideration set out in clause 7.

The Hon. S.G. WADE: Let me give you an example, which is just my imagination of a case. I am a child living with my mother in a very stable, nurturing environment. She gets involved with a male who is a risk to my safety. Perhaps he is an alcoholic and occasionally comes home drunk. He does not live at our house; he comes back from time to time. He is clearly a risk of harm to me.

The Hon. P. MALINAUSKAS: Is this the child or the mother?

The Hon. S.G. WADE: I am a child in this context. He is clearly a risk to me. This bill, as the government proposes it, states that the paramount consideration is to protect me from harm. My need for love and attachment to my mother, my need for stability in the family, is trumped, in this government's view, by risk—a risk of harm that may be relatively minor.

I do not see how this piece of legislation is consistent with the best interests of the child. With all due respect to the Hon. Kelly Vincent and the government, I think it is muddle-headed to say that a paramount consideration in clause 7 can somehow be fixed by another interest, which is not paramount, in clause 8.

The Hon. P. MALINAUSKAS: I appreciate the Hon. Mr Wade's sentiments and his objects, but it is important when contemplating a case such as the one the Hon. Mr Wade has just outlined that it is considered in the context of the entirety of the bill. It is difficult to contemplate how a particular case might play out without looking at all elements that are relevant.

For instance, a key issue is defining the meaning of 'harm', which is outlined in clause 16. In the type of situation you are talking about, you could look at how harm is defined. I think this is one of those instances where the government is going to respectfully disagree with the opposition. Notwithstanding the intent of the opposition, we maintain our position and look for the chamber's support once the matter is considered.

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

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

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

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

The Hon. K.L. VINCENT: If I could pick up on a few of the Hon. Mr Wade's points and perhaps ask a question about the scenario he outlined to clarify it in our minds and to assist with the debate. Firstly, as I think the minister has already said, clause 8 provides, 'In addition to the paramount consideration set out in section 7', so I think they are to be read in concert. I do not think one trumps the other; clause 8 very much underpins clause 7. The other point I make is that I have just pulled up Article 3 of the United Nations Convention on the Rights of the Child, which is one of the documents that the Hon. Mr Wade and others have quoted, and I am going to quote a bit from that:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

'A primary consideration' not 'the primary consideration', so it is really important that we look at these things as being in concert because, as the Hon. Mr Wade has pointed out, you cannot deal with the rights of the child or any human being by looking at one facet of their lives; you need to look at things holistically.

If I can ask a question of the minister, given that he has an adviser there, based on the hypothetical scenario that the Hon. Mr Wade outlined. In the example where a parent starts up a romantic partnership with an alcoholic partner, and sometimes they are in the house while intoxicated, would it not depend on whether that person's drunkenness posed a risk to the safety of that child as to whether they were removed from that environment? I do not imagine they would be removed solely on the basis that someone in the house was sometimes drunk.

The Hon. P. MALINAUSKAS: Our advice is that that is exactly correct.

The Hon. K.L. VINCENT: I imagine, too, that one of the points of this legislation is to try to reduce the number of children removed in the first place, so I imagine the parent would be given advice or support or the drug dependent partner would be given advice or support to minimise that addiction—

The Hon. J.A. Darley interjecting:

The Hon. K.L. VINCENT: —or for the parent to be advised to, as the Hon. Mr Darley is whispering in my ear, get rid of them. Is it fair to assume that that would occur before removal was even considered, given that the connection with the biological family is otherwise stable?

The Hon. P. MALINAUSKAS: My advice is that for all intents and purposes that is right. The department would seek to have early intervention measures in place before any other action would be taken.

The Hon. S.G. WADE: With all due respect to the Hon. Kelly Vincent, I refer to the clear words of the legislation. The honourable member in her contribution quite rightly said that it is important for this legislation to be clear. I do not know how clear it needs to be. The legislation says the paramount consideration shall be protecting from harm. Clause 8, which she refers to as 'other interests', specifically provides, 'In addition to the paramount consideration set out in section 7, and without derogating from that section'. In no way does clause 8 undermine the paramountcy of clause 7. If I could go back to the minister's point about harm. Was the minister's reference to harm relating to clause 16—Meaning of harm?

The Hon. P. MALINAUSKAS: Yes.

The Hon. S.G. WADE: I do not want to prolong the debate, because I imagine we will have cause to revisit this issue later, but I would put to the minister and to the department that if you think that all of the interests of a child are encompassed by protecting them from physical harm or psychological harm, then I think you have underestimated the breadth of interests that a child might need to have protected.

I think the legislation, as drafted, has a clear focus on physical harm, which is reflected in clause 16, slightly expanded by psychological harm, but I draw you back to the heading of clause 7, 'Safety of children and young people paramount'. Safety, to me, yells, 'please protect me from physical harm'. If we want the legislation to be clear, if we want statutory officers, who are trying to protect our young people, who have a duty to protect our children and young people, to have clear legislation in front of them, this legislation, to me, says protecting children from physical harm—their physical safety—is the paramount consideration. I do not think that is a message the parliament should be sending. It is a far too narrow view of what is in the best interests of children and young people.

The CHAIR: The Hon. Mr McLachlan.

The Hon. A.L. McLACHLAN: Did the minister want to respond?

The CHAIR: The Hon. Mr McLachlan.

The Hon. A.L. McLACHLAN: The minister might want an opportunity to respond specifically to Mr Wade.

The CHAIR: He can respond to both.

The Hon. A.L. McLACHLAN: I was interested in what the minister was going to say. I will just have to wait a little bit longer. I thought I might add my own comments to this debate. I am not convinced by the government's arguments in relation to clarity and certainty. If I could add to the Hon. Mr Wade's argument. Together, if you are looking at the operation of this bill on the ground with administration by the department, you have safety, and then you have other needs. I know that one is made subordinate to the other, but they still have a whole variety of factors to balance.

This is difficult in any set of circumstances for individuals, so to argue that our amendment may create confusion in the minds of those administering the act, I think, does not carry considerable weight, given that they are going to have a series of virtually identical considerations in many ways, depending on how you interpret the need for love and attachment and self-esteem. That in itself is difficult. In other contexts, we have that constant debate. We have a continuing debate in relation to that in sentencing, with judges trying to balance different heads of consideration, if I can put it that way.

Just to address something the minister said a little earlier in this committee debate: we have had the Coroner's findings. Like the Hon. Mr Wade, I am not convinced by the government's certainty in relation to what the Coroner was saying. He does mention 'best interests' in his findings, but also mentions keeping children safe from harm. It is not clear that he is giving a pronouncement on the drafting of any future provisions, although I note he recommends that some consideration be given to changing the child protection act. However, I think it is a bit of a long bow to say which exact provisions he was considering. He obviously made it very clear that, in a situation as was presented to him, there are multiple factors, but that incorrect weight was placed on certain of those factors and not enough weight placed on harm.

There is nothing in the Liberal amendments that abrogates from that principle. In fact, we are trying to articulate that we must look at all the factors and weight them accordingly, but that harm is critically important, as it always should be. The degree of harm is always going to be in the eyes of the assessor and the person administrating this bill when it becomes an act, when it is proclaimed. There has been a lot of water under the bridge since the Coroner's findings and where we find ourselves today. From the Liberal Party's perspective, we have a large number of stakeholders taking a very different view from the government, which in our consultations we have placed weight on and the government has placed less weight on.

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

The Hon. P. MALINAUSKAS: In response to the Hon. Mr Wade's concerns, just to be clear, there is no use of the word 'physical' in respect of clause 7. The interpretation from the Hon. Mr Wade—that somehow the focus is on 'physical'—is not something the government accepts because I am advised we do not use the word 'physical' in respect to clause 7. So, the government simply disagrees with the Hon. Mr Wade's interpretation in that respect.

It is also worth noting that the government is preserving the position of the children's protection amendment act of 2016, which was passed by this very parliament only a short time ago. Again, this is a very important and pertinent point to be considered in light of the fact that the government's view is that the opposition's amendment will indeed undo the very protections that were put in place by that amendment act.

The Hon. S.G. WADE: I am not going to revisit the discussions we have already had, but I would like to understand how the government would interpret the other interests in clause 8. For example, could the government advise, in relation to clause 8(1)(d) 'the need to achieve their full potential', if that would include, for example, a child's access to education? In one family they may be able to go to another school, but in another family they may not be able to go to that school. That education, of course, contributes to a child's achievement of their full potential. I suppose—and, if you like, that is an example—the general question is: is there any interest of a child that would not be covered by clause 781 as a whole?

The Hon. P. MALINAUSKAS: I think the simple answer to your question is no.

The CHAIR: Are there any further contributions? If not, I put the question that clause 7 stand as printed. So, if you agree to the amendment you vote 'No'. All those is favour say 'Aye'; against 'No'. I declare it carried.

The Hon. J.S.L. Dawkins: Divide!

Members interjecting:

The CHAIR: No, I am running the show, I have made a determination, I was quite clear in what I said.

The Hon. J.S.L. Dawkins interjecting:

The CHAIR: No, I made it quite clear that if you want to support the amendment you vote against it—

The Hon. J.S.L. Dawkins: Yes.

The CHAIR: And I called it the other way.

The Hon. J.S.L. Dawkins: And I called 'Divide'.

Members interjecting:

The CHAIR: The next amendment is No.2 [McLachlan-1]—

The Hon. T.A. Franks: But then you called it 'carried', as in that the clause stand.

The CHAIR: Yes, that's right, so the clause stands.

The Hon. T.A. Franks: But we voted no and we called 'Divide', so we want a division.

The CHAIR: No, you didn't call 'Divide'.

The Hon. J.S.L. Dawkins: I called 'Divide'.

The Hon. T.A. Franks: Yes, we did.

The CHAIR: I sat and looked around—

The Hon. T.A. Franks: No, you don't look, you listen. We said 'Divide'.

The CHAIR: Just cool down, the Hon. Ms Franks, and contain yourself. I do not need you yelling across the chamber.

Members interjecting:

The CHAIR: We have moved on to clause 8.

The Hon. T.A. Franks: No we haven't. I called 'Divide', and there were more than two voices and I called 'Divide'.

The Hon. R.L. BROKENSHIRE: Just for clarification, the Australian Conservatives will actually be voting with the government; however, I did clearly hear two dissenting voices call 'Divide'.

The CHAIR: Well, I do think there was a bit of confusion on the opposition side, but I am quite happy, if you want to call a division, to ring the bells.

The committee divided on the clause:

Ayes10

Noes9

Majority1

AYES

Brokenshire, R.L.

Darley, J.A.

Gazzola, J.M.

Hanson, J.E.

Hood, D.G.E.

Hunter, I.K.

Maher, K.J.

Malinauskas, P. (teller)

Ngo, T.T.

Vincent, K.L.

   
     

 

NOES

Dawkins, J.S.L.

Franks, T.A.

Lee, J.S.

Lensink, J.M.A.

McLachlan, A.L. (teller)

Parnell, M.C.

Ridgway, D.W.

Stephens, T.J.

Wade, S.G.

     

 

PAIRS

Gago, G.E.

Lucas, R.I.

 
     

 

Clause thus passed.

Clause 8.

The Hon. A.L. McLACHLAN: I move:

Amendment No 2 [McLachlan–1]—

P age 9, after line 34—Insert:

(2a) Without derogating from any other provision of this Act, it is desirable that the connection of children and young people with their biological family be maintained.

This clarifies and adds to clause 8, which puts in a sentence that states, 'Without derogating from any other provision of this Act, it is desirable that the connection of children and young people with their biological family be maintained.' It is not binding. The operative words are 'it is desirable', and this comes again from the submission of the stakeholder group referred to in the debate on the previous clause.

The Liberal Party thinks it is important that a connection with the family be maintained, even in difficult circumstances, but obviously not when there is a risk of harm. Family, as pointed out by the Hon. Tammy Franks, is not just the parents but can be the grandparents. I ask the chamber to consider favourably this amendment.

The Hon. R.L. BROKENSHIRE: I have a question of the mover of amendment (2a). He touched on biological family and grandparents, but there are lots of examples where it is a sister, a brother, an uncle or an aunty, who has the capability, so I assume this is quite wide in the sense of the intent of 'biological family', and that as far as possible he is trying to keep some connection with the biological family rather than absolute removal, if not necessary, and that therefore is a consideration with respect to the child's situation?

The Hon. A.L. McLACHLAN: Yes, it is certainly our intent. It does not stop the removal, but in the circumstances of the application of this act we would like the department to have consideration of the broader family group and maintaining some connection. It does not blunt the sword of harm, but simply requires a reflection by those administering the act that the child's connection with the family is a consideration.

The Hon. R.L. BROKENSHIRE: This is quite important to me, because I have dealt with a number of constituents who have come to me over the years and have said they are not happy with the department because there was absolute removal of a child. There was no disagreement that the child had to be removed from the immediate family, but they were removed right outside of the family when there were loving and caring family members who would have liked to have taken that child into care and, hopefully, in time been able to help develop a situation back with the parent or parents, whatever the case may be.

This is not absolute. By doing this you are saying that at law it does put an onus on the department. If all other things are equal, that there should be some preference to a biological family member if they are available to look after and love that child, is that correct?

The Hon. A.L. McLACHLAN: I would not go as high as onus, given the construction of this bill. The drafting I have chosen is to fit in with the language of the bill. I would not go as high as presumption, but certainly to require a consideration in the administration of the bill, and I accept that is a lower standard. We must also remember that whilst there may well be an abusive parent because of psychotic episodes on drugs, if they clean themselves up there may be opportunities for supervised connection. We cannot always think the worst, and people are redeemable.

So, I am seeing it not only in the immediate context but in a broader context. As you have described the purpose, my intent, it is correct, but I think it is merely a lower level of consideration. It is certainly not binding on the department and, as with all provisions in this bill, we will rely upon the goodwill and competency of the department.

The Hon. P. MALINAUSKAS: The government is opposed to this on the basis that the Children's Protection Act 1993 was amended by the children's protection amendment act of 2016 so as to remove any ambiguity on the hierarchy to be given between various objects of the legislation when it comes to what should usurp everything else. It is now, and will be even more so in the bill which will replace the Children's Protection Act 1993, that the paramount consideration in the administration, operation and enforcement of the act is to protect children and young people from harm. This includes giving way to maintaining a child in his or her family where there is a risk to safety.

As I have already stated, in the implemented recommendation 22.12 of the Coroner in the inquest into the tragic death of Chloe Valentine the government has taken the opportunity, in this bill, to even further refine the legislation to its absolute basics so as to leave no doubt in the minds of those charged with the administration, operation and enforcement of this act that protection from harm is the paramount consideration. To therefore muddy the waters and tack an objective onto clause 8 that a connection to family be maintained is inconsistent with the intention of part 2 of the bill and is, once again, at odds with the aforementioned recommendation of the Coroner.

The Hon. S.G. WADE: I do not want to be disorderly and reflect on a previous vote of the council but I would encourage members to look back on the honourable minister's comments on that clause and think about what we were talking about in the previous clause. The minister was assuring us, and particularly the Hon. Kelly Vincent was assuring us, that the other interests of a child are not being excluded by this paramountcy. The minister's statements then clearly indicated that other interests of a child will be discounted, that the paramountcy of safety in this provision, which he himself said has been tightened and made more of a focus—I suppose you can make it so that it is no longer a primary object but now a paramount consideration. I just think that we, as a parliament, should be careful to make sure that we do not harm children and young people by not recognising the diversity of their interests.

The Hon. J.A. DARLEY: For the record, I indicate that I will be supporting the Liberal amendment, as I will all other remaining Liberal amendments.

The Hon. T.A. FRANKS: Similarly, the Greens will be supporting this amendment. I also reflect that we are talking about a situation here where Belinda Valentine would have been given access and care for Chloe Valentine had this consideration been undertaken.

The Hon. R.L. BROKENSHIRE: I advise that Australian Conservatives on this occasion will be supporting the opposition amendment. I think it is important to place on the record that the department (and this is not aimed at the government but the department) and whoever works in this department into the future, must understand that the community and the parliament expect that wherever possible, if there is an opportunity to take a child who needs protection—and there is no disagreement with that; it has been clearly assessed that this child needs protection—we expect that protection to be of paramount importance.

However, there has been historically with this department an ideology that often it is easier and better to remove the child from any contact whatsoever, and the department knows absolutely best. On many occasions, they would rather put that child into supported accommodation or a motel with three carers on a 24-hour shift, or whatever, and that is an ideology that I want this department to shift and change. This department has to understand that, more than anybody else, more than any government, it has failed in its duties. In some circumstances, I will go as far as to say that they have been derelict in their duty and we have seen the most tragic of circumstances.

I want CEOs and senior people in the department—and the rank and file often understand this, I have talked to them, but they are overridden by the ideology and the policy of the department. It is the parliament that has the right, on behalf of the democratic principles of the Westminster system for the people we represent, namely our constituents, to make sure that the department understands what the intent of the parliament and the community is. Australian Conservatives have put this sort of argument forward before here. If everything else is equal and there is an opportunity, then the department must understand that the intention is to give that child the best opportunity, which is still with a biological family member. We will be supporting this amendment.

The Hon. P. MALINAUSKAS: I simply remind members that clause 8(1)(b) states that the need for love and attachment is something that is taken into consideration. This enshrines in legislation that the connection with biological family is to be taken into account by the department. There is provision for the sorts of concerns that some honourable members have been asking for already in clause 8.

The Hon. A.L. McLACHLAN: To respond to the minister, if we look at the amendment, it does not in any way, nor can it, override, now that clause 7 remains standing as originally drafted. The words are 'it is desirable that the connection' be made, so that is a very low threshold that does not necessarily mean living with. It does not mean regular visits.

Whilst I appreciate the argument over drafting, which is effectively what we are doing today, we believe that we move this amendment out of an abundance of caution and for clarity for the department. Indeed, that is a similar argument to the one the government made on clause 7 about the need for clarity in administration.

The committee divided on the amendment:

Ayes12

Noes7

Majority5

AYES

Brokenshire, R.L.

Darley, J.A.

Dawkins, J.S.L.

Franks, T.A.

Hood, D.G.E.

Lee, J.S.

Lensink, J.M.A.

McLachlan, A.L. (teller)

Parnell, M.C.

Ridgway, D.W.

Stephens, T.J.

Wade, S.G.

     

 

NOES

Gazzola, J.M.

Hanson, J.E.

Hunter, I.K.

Maher, K.J.

Malinauskas, P. (teller)

Ngo, T.T.

Vincent, K.L.

   
     

 

PAIRS

Lucas, R.I.

Gago, G.E.

 
     

 

Amendment thus carried; clause as amended passed.

Progress reported; committee to sit again.

Sitting suspended from 13:03 to 14:1 7 .

 

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