Ms SANDERSON (Adelaide) (12:01): I note that I am the lead speaker on this very important bill. I reiterate these words from the member for Enfield's speech:
The Children and Young People (Safety) Bill 2017 is a landmark piece of legislation which repeals the Children's Protection Act 1993 and creates a new child protection framework to implement recommendations made by the Child Protection Systems Royal Commission in its report 'The life they deserve'.
In his ministerial statement, he called it the largest piece of legislation and a landmark piece of legislation, yet it is introduced without notice and without warning. We received a copy of the bill in the chamber only 10 to 15 minutes ago. It is absolutely ridiculous that there would be no briefing for such an important piece of legislation.
The briefing, I believe, is offered to the Leader of the Opposition at 1 o'clock today. That is not very useful when we are expected to debate this in the house. We know that in the past, in relation to the development bill, the government made 300 amendments to its own bill and it went on for days and days. This is a ridiculous way to run a government and it is completely unacceptable.
There was absolutely zero consultation on the final bill. Yes, there was a draft bill for which consultation was open until 27 January, and I did have one briefing on that bill. However, as we have seen from other bills, so many amendments are made that, until you get the final bill, you really cannot comment on what has occurred, what consultation has been listened to and what has happened. There could be another 300 amendments coming, for all I know. This difficulty was noted even in the guardian's response to the draft bill. It said:
Factors that have limited the Guardian's capacity to respond fully—
this was to the draft bill—
there is no explanatory documentation for the proposed clauses and the policy decisions that support them (with the same applying to matters that have not been carried over to the draft)
…it is not clear what will happen to all elements of the Family and Community Services Act 1972
no framework is available outlining what is likely to be incorporated in regulations or perhaps appear as policy and thereby impact upon the exercise of delegations.
Even the Guardian for Children and Young People noted that there was no reasoning behind the draft bill, there was no explanation for what had been kept from the Children's Protection Act, what had come over from the Family and Community Services Act, why things had been dropped, what had been included from the royal commission and why, and what parts were not included and why.
It is ridiculous that we are given the final bill with no notice and with no explanation. We have had two speeches now from the government that certainly highlighted the reversing of the onus of proof, which is a principle that has definitely changed here. I have already had several lawyers raise that as an area of concern, because that is quite a change to a legal practice that is common in many other bills and other legislation. They are concerned about changing that in just one piece of legislation.
The genital mutilation clauses in the Children's Protection Act have been completely removed and there is definitely great concern around that. There was an opportunity to add in forced child marriages, which has not been included in the act, and I have already called for amendments to be made to insert that. There is no mention of foster care to age 21, which is a policy the Liberal Party has already released to support children properly.
There was mention of support to age 25, but that was around employment and housing, whereas a lot of children need a family environment and their foster carers need financial help to be able to feed them and put a roof over their heads. We know that 30 per cent of foster children who have aged out of foster care are homeless within 12 months, so we know the importance of keeping them in the family as long as possible. We also know from studies that it actually is a cost saving over their lifetime if you give them proper care when they are young.
I will read into Hansard some of the general statements and comments on the draft bill because no-one has seen the final bill in order to make a comment on it. There was a joint media release by SACOSS, the AMA(SA), CAFWA, YACSA and the Council for the Care of Children, which stated:
A key issue of concern is that the draft legislation does not put sufficient emphasis on harm prevention. Despite the government's rhetoric about the importance of prevention, the Bill is effectively limited to responding to harm once identified, and has missed a golden opportunity to mandate provisions aimed at keeping children safe from harm. It also fails to address significant challenges for the state's child protection system, for example regarding specific measures to provide for the safety of Aboriginal children and young people, and their over-representation in the system.
A general comment from YACSA states:
While we accept the Bill won't or can't include all of the elements that we believe are essential to underpin a holistic child protection system, we remain concerned that the government is still steadfastly focused on bolstering the response of a crisis driven system rather than seeking to prevent children and young people experiencing abuse and neglect.
YACSA believes that a fundamental shift in focus is required by government from the existing crisis driven response. This response sits at the tertiary end of a system where the child or young person has already experienced (or is likely to experience) abuse or neglect. Government needs to consider the broader social environment of family and community strength and capacity building, the health and wellbeing of families, and the development of happy and healthy children and young people through the funding of prevention and early intervention services. This focus on prevention and early intervention has the potential to reduce the number of children and young people experiencing abuse and neglect in our communities and demands the same attention as the crisis driven response in legislation, policy, regulations and service planning.
AMA(SA) spokesperson Dr Michael Rice says:
The Government has committed to establishing an Early Intervention Research Directorate. But we need to see action right now. Each reform initiative that does not see prevention as a vital part of the picture is a lost opportunity.
The Chair of the Council for the Care of Children, Simon Schrapel, said:
We have a great opportunity to redefine how we protect children from harm but the legislative funding and system changes have fallen short. A failure to adequately invest in better supporting vulnerable families to care for their children will only result in a further ballooning in the number of children coming into and remaining in state care.
Connecting Foster Carers SA said:
The importance of new legislation cannot be understated. Getting it right from the onset will see carers enjoy legal protection, ensure greater stability, reduce the expense to the system through improved recruitment and retention, and less reliance on residential care services to name a few, and work towards achieving the ultimate goal: the best possible outcomes for children and young people.
Connecting Foster Carers SA has provided comments and proposed changes to areas of the bill in an effort to address, protect and improve carers' rights.
The following areas are of particular importance. Connecting Foster Carers SA seeks the right of the carer to be heard to be absolute, subject to the best interests of the child or young person and not discretionary. It is opposed to any risk of carers being imprisoned for any term whatsoever. It is opposed to any risk of carers being fined for any sum whatsoever, and it proposes amendments to allow for urgent hearings at SACAT, the South Australian Civil and Administrative Tribunal, in relation to matters that arise from the new legislation.
Grandparents for Grandchildren SA said:
As the peak body for grandparents carers in SA and unique within Australia, the volunteer staff and board of Grandparents for Grandchildren SA support the draft Children and Young People (Safety) Bill in principle and welcome its introduction. It also strongly supports the Connecting Foster Carers SA submission in response. That said, the bill falls short of adequately addressing the plight of our sector: grandparents who are unregistered in the system and struggling to care for their grandchildren at risk. Connecting Foster Carers SA quite appropriately advocates for those carers, foster and kinship, registered and therefore approved by the department, thus qualifying for financial and substantive support. Grandparents for Grandchildren SA carers have not necessarily achieved that status but have been informally or formally court sanctioned caring for their grandchildren for many years but without recognition or support. It is a fact that the majority of children in care in South Australia and, in fact, Australia, are in the care of their grandparents. The bill therefore needs to be modified throughout in its wording so that all reference to 'carers' means not only those foster and kinship carers registered with the department, but the vast majority that are neither registered nor even recognised.
The Guardian for Children and Young People's response was quite extensive, so I will not at this point read the whole submission into Hansard; however, I will read parts of it:
Elements of an effective child protection system were described in A Fresh Start, the government's recent response to the Nyland Royal Commission. Prevention will always be the best solution and families must be supported as soon as possible with evidence-based services and programs that are targeted to their needs. These services and programs extend beyond the statutory child protection system into our mainstream health, education and other wellbeing services. Noting this strategic context, the draft bill appears to do three things: it updates the Children's Protection Act 1993, adds some elements from the Family and Community Services Act 1972, and enables a number of new initiatives that respond to the Nyland Royal Commission recommendations. As such, while not a thorough revisioning of child protection, it should underpin incremental improvements to the existing system.
I have already noted that there was mention of factors that limited the guardian's capacity to respond fully, in that there was no explanatory documentation for the proposed clauses and the policy decisions that support them. It was not clear what will happen to the rest of the Family and Community Services Act. There was no framework available outlining what is likely to be incorporated in the regulations or perhaps appear as policy, thereby impacting upon the exercise of delegations.
There were areas that were specifically mentioned again by the Guardian for Children and Young People. Unfortunately, breakdowns in critical areas of the child protection system have been tolerated, which raises the questions: how do we know they will not recur? Does the bill provide aggrieved children and young people with adequate recourse to grievance procedures should this happen? Does it avail potential sanctions to help reinforce the accountability of those responsible for resourcing and managing the system?
One of the issues that was repeated many times by people and stakeholders in the industry was that simply transferring pieces of legislation from the existing Children's Protection Act into this new child safety act, when they were being ignored and not used previously, does not mean that they will be upheld just because the name of the legislation has been changed. What else has been put in place to ensure that if it states that there must be an annual review there will be an annual review and that if it states that there must be a case and care plan that there will be a care plan? We know that there has not been one.
In the recent Productivity Commission's report on government services, many statistics were not shown. From what I am hearing, the reason that the figures are not given is that they are so bad that the department does not want them reported. We have had the Auditor-General's damning reports into how many children do not have a caseworker and how many children do not have annual reviews. Simply putting in a requirement for an annual review in a new bill from an old bill does not make children any safer, but we can only hope.
I have had the bill for less than an hour, and I have been in the chamber and so I have been unable to read it. When I have time to read the bill, I will be able to check it and make further comments during the committee stage. The Guardian for Children and Young People also stated that other matters need clarification. Some changes included in or absent from the draft bill will be included in the regulations. Others may not be carried over from previous legislation for policy or other reasons. The absence of explanatory notes for the draft bill means that the reasons are not transparent. The provision of properly informed feedback is therefore difficult in relation to some matters.
Other issues listed by the Guardian for Children and Young People include further matters requiring more consideration based on the draft bill. Of course, I have no idea if this has been listened to and acted upon or if it has been simply ignored. They include 'Protection from liability for voluntary or mandatory modification'. From the draft bill, section 12 of the Children's Protection Act was absent. It also includes 'Confidentiality in relation to notifications of abuse or neglect'. Clause 151 referenced the treatment of a notifier. Section 13 of the Children's Protection Act has been omitted.
In terms of the return-to-home requirement in clause 33 (the numbers have changed in the final bill, so these will not align), the standard of the best interests of the child to the bill's standard is that the child or young person 'be at risk'. In terms of 'Custody of removed child or young person', clause 34 sets a new limit of five working days for the required return home without any reason for the number of days nominated. I note that one lawyer, who works extensively in this area, stated that that is just too long, that lawyers are ready.
There are several lawyers who represent children and families at the last minute. I said, 'Surely, having a bit more time for you to present your case would be of benefit to the parent.' I was assured that it was not, that the existing time period, which I think is 48 hours, was enough because they do this regularly, that they know what they are doing and it is important for the child and the parent that this is dealt with swiftly and that they did not want the children to be held in temporary accommodation, particularly if it is emergency motel accommodation. They wanted this to be swiftly dealt with.
As the guardian has mentioned, no reason was given as to why that was extended out to five days. The investigatory requirement (clause 29(3)): the detail in section 19 of the Children's Protection Act is not carried over to the draft bill, which simply refers to the fact that regulations may make further provisions in relation to an investigation under this section. Compulsory investigation, examination or assessment measures: the implications of the bill's proposed arrangements are difficult to compare to the equivalents in the Children's Protection Act.
Persons or class of persons who/that may be exempted by regulation from the operation of a specified provision or provisions of this act: insufficient detail has been provided. Several others are listed, but I am sure the government has seen them, so it will just be a matter of what has been listened to and what has not, because there are no explanatory notes with the bill that say what amendments were made, why they were made and on what it was based.
Now I will read the proposals that were not supported by the guardian, and they include aspects of referral of notifications to a state authority. Whilst acknowledging the constructive intent of clause 28, the proposed section 28(7), 'Capacity for the chief executive to give directions or guidance in relation to a matter to the state authority to which the matter is referred' is not supported as currently constructed. It is not appropriate for the chief executive to give direction to an independent statutory officer, such as the guardian, who is nominated as a state authority in the draft bill, as this conflicts with the guardian's independent statutory role.
The minister currently does not have an equivalent power with the Children's Protection Act, stating that, in section 52AB(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.
Incompatibility of the proposed section 28(7) with existing legislation is reinforced by section 21(2) of the Children and Young People (Oversight and Advocacy Bodies) Act of 2016, which guarantees that:
The Guardian is independent of direction or control by the Crown or any Minister or officer of the Crown.
The relevant clause in the draft bill therefore should exclude the capacity of the chief executive to direct an independent statutory officer. The capacity should be to request such assistance. The guardian was also concerned about the removal of the child safe environment provisions. However, I note that that has been put back in, so it is good that the government has listened on that point. I need to go through and make sure it is exactly the same, but it appears that it has been included.
Other areas of concern to the Guardian for Children and Young People include the removal of female genital mutilation as a child abuse issue. Sections 26A and 26B of the Children's Protection Act 1993 do not carry over to the draft bill, which removes female genital mutilation (FGM) as a matter warranting explicit attention as a form of child abuse. The guardian urges that FGM provisions be retained to maintain a focus on this unacceptable practice within the child protection sector, in accordance with relevant international and national standards, not the least of which is the international Convention on the Rights of the Child.
This should happen irrespective of the prescription of FGM in other legislation. Mirrored coverage applies to other matters in the draft bill, an example being the cross coverage of section 79—Unlawful taking of child or young person, with parallel provisions in the Criminal Law Consolidation Act 1935.
Comments of note mentioned by the guardian were actually from children, given that the voice of the children is an important part that was mentioned in the Nyland royal commission, that they must be heard. Things that the children felt were important to have in this bill, and suggestions for amendments, were as follows: call the children's helpline; talk to someone who could make a difference; more resources; siblings to remain together; friends over; more family contact; equal; where am I going?; will I see my parents again?; support ; empathy; love; and education.
As you can see, a lot of effort has gone into the draft bill by a lot of people, yet the final bill has not been given to any of these same stakeholders for them to make final comment, which I think is a definite flaw in our democratic system because this is an extremely important piece of legislation. We had the opportunity to work in a bipartisan manner had we been briefed on, or even given, the bill.
I found out about this bill being introduced this week on the radio yesterday, and then at 10.15 this morning a staffer from minister Rau's office came to tell me that not only would standing orders be suspended so that this could be introduced, but it would actually be debated immediately, and I had not even seen it. I rang parliamentary counsel, and at 10.55am I was told that three minutes earlier it went up on the portal; however, it was a different copy from the one that has been tabled in parliament. I do not know if the one that I have been given in parliament is the correct and latest version, so it sounds like there are still changes being made. It is just ridiculous that I should be expected to finalise my comments on a bill that I have never seen before, that I have not had time to read and that has had no third party consultation at all.
To go through Anglicare's feedback, which I have not mentioned yet, they had quite a lot of changes that they wanted, and they presented theirs in a table, which is a much easier format. It would have been handy if the government had presented a table with the new bill that said this proposed section replaces section whatever from the Children's Protection Act, or this is from the families and communities act, or this is from the Nyland royal commission because then we could have all understood exactly what was going on, where it came from, what was the whole point of it, and we could actually debate and get proper legislation.
As much as I am unhappy about the process, I am certain that the government wants to protect our children—and we do, too—so why are we not working together? Giving no notice is completely disrespectful and not how you get somebody to work with you in the best interests of children. Other stakeholders who have read this bill have made the comment that the draft bill was more of a butt-covering exercise and more about protecting the government and the minister rather than protecting the children. I do not know if that has been changed in the final bill, but I will read it with great excitement later today when I have time.
Referring to Anglicare's submission, AnglicareSA welcomes the state government's proposed Children and Young People (Safety) Bill 2016 (which will now be 2017) and believes it will make a significant contribution to improving the quality of care and outcomes for children and young people in care. In particular, we commend the government on its commitment to amplifying the voice and views of the child or the young person, embedding timely and early decision-making processes to support stability and permanency, prioritising family based placements as a preferred option of care, and increasing the ability for foster carers to be involved in the daily decision-making.
Anglicare strongly supports sections 4A and 4B—the duty to safeguard and promote the welfare of the children and young people—which demonstrates a whole-of-government commitment to the protection and wellbeing of children and young people and their contribution to strong communities and a thriving state. Anglicare's feedback reflects our experience in child protection and organisational expertise with working with vulnerable families, children and young people across South Australia.
In reference to part 2, clause 6, Anglicare welcomes the inclusion of the paramount consideration guiding the administration, operation and enforcement of the act. This affirms the government's intent to translate the bill's intent into quality practice and implementation. However, they are concerned about this clause, which provides:
The paramount consideration in the administration, operation and enforcement of this act must always be to ensure that children and young people are so far as reasonably practicable protected from harm.
The recommendation is to delete 'as far as reasonably practicable'. There are definition issues. In part 3, clause 8(1)(b) the recommendation is to include provision for the Commissioner for Children and Young People to represent children and young people in care to express their views, including children and young people who are at risk or not yet on an order.
Also in part 3 clause 8(1)(c), the recommendation is to reference the placement of children in care with a disability to the Disability Discrimination Act and potentially the national disability standards. Again, in the same clause, the recommendation by Anglicare is for the proposed Children and Young People (Safety) Bill to adopt the culturally and linguistically diverse (CALD) placement principle in line with the Aboriginal placement principle. Culture is mentioned many times but we are a multicultural society now and there are many cultures and religions and disabilities, as mentioned in this recommendation, that also need to be taken into account when placing our most vulnerable children. The recommendation is to reword clause 10, part 2, consistently with clause 10(3)(b) to include:
Maintaining the connection of Aboriginal or Torres Strait Islander children and young people with their community or communities, family and culture.
There is also a recommendation to adopt the commonwealth definition of 'Aboriginality'. There is a further recommendation to include a commitment to a statutory body assessing the risk threshold of all notifications for consistent assessment and responses. There is a recommendation to delete chapter 4, part 2, clause 23, and replace it with a provision for statements made during family group conferences to be admissible in court. I have heard from many people who are against that idea.
The idea of a family group conferencing meeting is that it should be used early on to stop the child from being removed in the first place and that members of the family—and perhaps a schoolteacher or their local priest if they go to church—can get together and speak frankly about what is going on and how they can help and support the child to not have to be removed from the—
The DEPUTY SPEAKER: Order!
Ms SANDERSON: —parents in the first place. The thought of that being admissible in court would stop people from being able to speak frankly. Whilst that is an Anglicare recommendation, I have also had a counterview from other people regarding that recommendation. There is a recommendation to define 'serious harm' and 'no reasonable practical alternatives', to develop operational guidelines with clear definitions and parameters to guide practice and implementation, and to provide resourced alternatives to a child's removal, including an obligation and resourcing for practitioners to put safeguards in the home when there are no options for removal.
A further recommendation is to consider retaining guardianship responsibility with the minister. For the children who have been removed, that could be quite an important change. Whilst I see that it is in keeping with what has happened in all the other states, I had a very emotional meeting with a lady who was here for a child protection rally. She had been, back in the day, a ward of the state—which is what they were called—and she is in her 30s now. She told me that when she left care at age 18, she had nobody. She had no family at all and the only adult in her life was her case worker who she did not particularly like but who was the only person she had.
The only highlight of her childhood was meeting the minister. She told me all about the one time she met the minister and how big an effect that had on her. In taking out the minister as the guardian, my concern is: is it that exciting to meet the CEO? I do not know.
I was really looking forward to someday being the minister—the guardian for these 3,300 children—so I see it as sad to lose that responsibility because ultimately, as the representative elected and the minister appointed, it is truly a great honour to be the guardian for these children. I can see the risks involved and I can see the other states have moved away from this, but I also see it as sad for the children to no longer have a minister who is their guardian.
There are also recommendations from Anglicare to remove charging fees for foster carer applications from the bill and to develop operational guidelines articulating how this will be monitored and enforced. I would have to agree about charging foster carers when we have such a shortage and we are trying to encourage, develop and nurture those relationships.
The last thing we want is to charge them for doing us a huge favour. They are volunteering their life, their time and now, under this new bill, putting themselves at considerable risk of imprisonment and fines. They do that great job on our behalf and with our most vulnerable and sometimes most difficult and challenging children, yet we also want to charge them for the privilege. I have to question that, although I have not seen the final bill to know whether that provision is in it.
Another recommendation by Anglicare is to revise the penalties to reflect the intent and objective of the bill. For example, the maximum penalty in the 1993 Children's Protection Act was $10,000, which could be adjusted to reflect inflation; $50,000 appears excessive and could be a hindrance to implementing the bill as intended. Further recommendations include for the bill to define 'placement agency' and include provisions for the Department for Child Protection to be responsible for prescribing and releasing the child or young person's information to foster care agencies or relevant intermediaries for disclosure to carers.
Further recommendations are for the bill to define 'placement agency' and for the Department for Child Protection to be responsible for prescribing and releasing information—this sounds very similar to the last recommendation, but it is different—to foster care agencies or relevant intermediaries for disclosure to carers. This relates to a different part of the act. A further recommendation is to define the least preferred option and the level of accountability in evidence needed to demonstrate this.
We know we are now defining that the guardianship of the minister or the CE is the least preferred option. However, the concern is that children may be left in more dangerous situations than they are now because there is no exact definition of exactly what that means. The safety of the child must always override that, of course, but Anglicare wants more information around that and a definition of exactly what that means. We do not want the pendulum swinging back too far.
We seem to go from one to another. There was a focus on keeping children together, so children were left in danger, but now some people might say too many are removed. We do not know. I know it is very difficult. As the shadow minister, I have over 100 cases ongoing in my office, and I can see the difficulty and complexity. It is not like I can read one and say, 'It has been handled 100 per cent completely wrongly.' I can see that there are always two sides to a story and that I do not always have all the information, but having definitions makes it a little bit clearer as to what that exactly means.
Another recommendation is to reconsider the definition of a foster carer agency as an agency that identifies, recruits, trains, recommends and supports foster carers and foster care placements. There is a recommendation that the bill specify the frequency of regular assessments, together with guidelines for foster care assessments. I read something about the CE requiring them to be done every 12 months, but I am not sure if that was for this section.
The final recommendation by Anglicare is to legislate the opportunity for all young people in care to have the option to, firstly, stay in or return to family-based care or supported independent living arrangements with access to the standard supports until they are 21 and, secondly, access ongoing support such as housing, financial, education, training, legal, etc., until the age of 26. I mentioned earlier that a Liberal Party policy is to have foster care to the age of 21 as the reports show not only are there better outcomes for the child emotionally, financially and education-wise but also our whole society is better off to have children who are not homeless and who end up in our juvenile justice system.
As the shadow minister for social housing, I was at a housing forum a few years ago. I was shocked to hear that a survey they did of people sleeping rough in South Australia showed that 30 per cent of those people had been in prison; prior to that they had been in juvenile justice and prior to that they had been under the guardianship of the minister.
We know where the children go and we know what happens to them. Kicking children out of home at 18 is not the done thing for normal families anymore. Years ago, people might have been married at 16, 17 or 18, but not anymore. We have high unemployment and jobs are hard to get. Children who are not working or studying need help, and they need foster care to be available until the age of 21 so that they can have a better start to life. Even though that requires funding, I think in the long term it is definitely the best thing for everybody—the child as well as the community.
I will now summarise some of the feedback, chapter by chapter. Of course, given that I have not seen the final bill and we are expected to debate it immediately, in order to allow time for other members of the opposition to speak, I will continue my remarks. In chapter 1, the changes were mainly from the Guardian for Children and Young People, and I have already read most of those comments into Hansard. In chapter 2, the changes mentioned were by YACSA to start with. YACSA states:
The prevention of abuse and neglect experienced by children and young people is paramount and legislation that provides an instrument to guide a government response to prevention and early intervention, as well as processes and services to prevent children and young people experiencing further harm is vital. Disappointingly, this Bill only seeks to respond to children and young people at immediate risk of abuse and neglect or those who have already experienced harm.
In order to prevent child abuse and neglect, government must focus on providing intervention services and programs that seek to strengthen all families, particularly those who may be the most vulnerable. We believe that the Bill requires a greater emphasis on prevention and early intervention to better align with the 'Child Protection: a Fresh Start' report (page 2) which describes the importance of early intervention and family supports as integral to preventing abuse and neglect. If prevention and early intervention—as a foundation of the child protection system—is not captured in this legislation, it will be unlikely that the new system will deliver improvements for children and young people who have experienced harm or are at risk of experiencing harm.
CAFWA-SA has comments on chapter 2. They state:
The fundamental objective for the reform of the state's child protection system must be to assist families to provide safe and nurturing environments for their children, and to have the necessary services and supports activated (secondary and tertiary prevention) before a family reaches crisis point.
In reference to the United Nations Convention on the Rights of the Child, CAFWA-SA states:
As Australia is a state signatory to the UNCRC and has ratified it as an instrument of international human rights law, CAFWA-SA suggests that all Australian jurisdictions, wherever possible, articulate in statute law its commitment to the principles and articles of the Convention. CAFWA-SA calls for a preamble to the Bill that references the UNCRC and which commits the government to uphold the relevant provisions therein.
With respect to part 3, YACSA makes the comment that:
While the government response to the Nyland report commits to putting children and young people at the centre of the child protection system and ensuring that they can participate and influence the decisions that affect them, this is not spelled out within the legislation. The legislation instead includes the intent of article 21 of the UN Convention of the Rights of a Child as a 'Principle of Intervention'. (Part 3, section 8 (1)(b) stating that a child or young person should be given the opportunity to express their own views 'on the matter that concerns their care' if the child or young person 'is able to form their own views on the matter'. YACSA is concerned that this provision is open to interpretation and has the potential to exclude the opinions, needs and participation of children and young people.
YACSA would like to see a stronger and less passive commitment to the engagement of children and young people within the Bill and in the child protection system in general. This demonstrates that we view children and young people as valued citizen's and as the experts in their own lives as well as fulfilling our international obligations to uphold the rights of children and young people.
YACSA advocates strongly for the participation of children and young people in the child protection system to be regular and meaningful and that their views, opinions and needs are given due weight to inform and influence their care. Providing the policy and service environment in which children and young people are expected to participate in the decisions that affect them will lead to both improved services and better individual outcomes.
Also commenting on part 3, chapter 2, part 3, clause 8(1)(c), Connecting Foster Carers supports the inclusion of the principles of intervention, in particular that account should be taken of those persons 'in whose care children and young people have been placed'. CFC-SA accepts that this would include foster and kinship carers.
With respect to chapter 2, part 3, clause 9, Connecting Foster Carers SA supports the inclusion of the placement principles, in particular the inclusion of a stable and secure environment, and that the existing relationship is considered of importance. However, CFC-SA would like to see clause 9(1)(b) amended to read 'approved carers are entitled to be, and must in so far as it is practicable to be, involved in decision-making relating to children and young people in their care'. It has also advocated and continues to advocate that, in many cases, the strongest relationship a child or young person has in care is with their carer.
Connecting Foster Carers believes that, if the government wants to recruit and retain volunteer carers to care for highly vulnerable and damaged children in secure, stable and inexpensive home-based care, then the government must protect and empower carers for the benefit of the children for whom they care. CAFWA makes further comments in relation to part 3, clause 10, stating:
CAFWA-SA supports the inclusion of an Aboriginal Child Placement Principle in the Bill, however calls for the current inclusion to be strengthened significantly. The provisions must be more robust and provide a greater level of accountability to the Department for Child Protection to ensure that Aboriginal children maintain close connections with family and culture wherever possible, and that all efforts are made to retain contact with kin. The provisions made in the Bill don't necessarily need to provide for a prioritised system of placement types or outcomes, as it should be the role of the delegated, Gazetted Aboriginal organization to ensure that case-by-case decisions are made in the best interests of the child in question. A provision for a delegated, gazetted Aboriginal organization to be involved in all placement decisions of Aboriginal children must be made.
Chapter Two of the bill (Guiding Principle) refers only to Aboriginal culture in the context of removal and placement of children, and must be strengthened to include principles for working with Aboriginal children, young people, families and communities in a preventative manner.
These principles must reflect how the department for child protection and the chief executive as legal guardian, will engage and work alongside aboriginal people and communities to strengthen family and community functioning, such that the removal of children is reduced. this engagement of gazetted aboriginal organisations will be critical for ensuring the success of this work.
The guardian also commented on part 3 and part 4, which I have already read into Hansard.
Chapter 3 relates to the feedback from Connecting Foster Carers. In relation to clause 12, they welcome the inclusion of the definition of 'approved carers' in the bill. The definition of 'family' is cause for some confusion, however, and arguably could extend to include carers. If it is not the intention of the bill to include 'approved carers' in the definition of 'family', it should expressly exclude them to avoid any such confusion.
In relation to clause 13, Connecting Foster Carers welcomes the extension of the meaning of 'harm' to include mental and emotional abuse. This clause highlights the need to genuinely support carers in the provision of long-term, stable, permanent, family-based care to achieve the best possible outcomes for children and young people. Carers are supporting the most vulnerable children and young people in this state to address emotional, social, behavioural and educational needs and will benefit greatly from various support initiatives aimed towards sustaining their caring responsibilities and connecting with other carers.
The guardian has comments on these areas, as well as CAFWA, in relation to clause 14, part 1(e). In close consultation with CREATE Foundation in South Australia, CAFWA-SA has noted in chapter 3—Interpretation, that a child or young person is identified as anyone under the age of 18, but when defining the meaning of 'at risk' in chapter 3, clause 14(1), the bill states:
For the purposes of this act, the child or young person will be taken to be at risk if:
(e) the child or young person is under 15 years of age, and is of no fixed address.
CAFWA-SA and CREATE agree that, for the purposes of consistent definition interpretation, a child or young person should be deemed to be at risk up to the age of 18.
The feedback received from CAFWA in relation to clause 14, child and family assessment and referrals network, states:
1. Refocusing on the government's additional commitment of $432 million over four years to deliver enhanced early intervention and dedicated family support services through the reallocation of a further $50 million over four years into a new early intervention services fund. This could be achieved in part by diverting funding away from the Early Intervention Research Directorate, which is a function that could be performed by the Australian Centre for Child Protection in partnership with government, and other research institutions.
2. Expanding the proposed pilot child and family assessment and referral networks to four locations incorporating one dedicated regional network, and ensuring that three of the four networks are run by respected non-government agencies in nominated regions.
3. Including non-government agencies involved in child and family welfare interventions as an integral member of the expanded child protection and family pathways which effectively operates as a front end of the child protection system.
4. Committing to incorporate early intervention and prevention provisions and statutory obligations in the Children and Young People (Safety) Bill, or to ensuring these provisions are included in a revised Family and Community Services Act.
Connecting Foster Carers welcomes the inclusion of persons who have a close association with the child or young person to be entitled to attend family group conferences. However, CFC would like the clause to extend beyond those who should attend, in the opinion of the coordinator, to expressly include carers who have had the child or young person in their care for some time. CFC believes that approved carers who have had the care of the child for some time should have the absolute right to attend family group conferences.
Carers are often best able to speak on matters that may have an impact on the child or young person in their care because they spend significantly more time with the child or young person than any other person in the child protection system. They witness the real-life consequences that decisions made by the court, the department and agencies have on the child or young person. The definition of 'family' may cause some confusion in this section of the bill, as mentioned earlier. Also, the carers are trained and required to comply with all relevant policies and directives prescribed under legislation, regulations, directives, policies, procedures and mandates of the department and any such delegates.
Clause 20 relates to Connecting Foster Carers. Again, the definition of 'family' may cause some confusion around the bill. Regarding clause 22, based on experience, it is not uncommon for an agreement to be reached about an action to be taken by the department, but there is no follow-through and nothing happens. It would seem to be equitable for there to be a remedy against the department as well as against other parties to the family group conference. That was feedback by a carer.
There are more CAFWA recommendations on clause 23, part 1:
With specific reference to section 23, part 1, CAFWA is concerned about the provision that evidence of statement made at a family group conference is not admissible in any proceedings. Whilst we understand that written records of decisions made at family group conferences will continue to be admissible in proceedings, we are concerned that certain important information or insights that may not be included in a written record of decisions will not come before the court, where in fact such information may be crucial in ascertaining what would be in the best interests of the child in question.
There are obviously many different views on different issues.
As to case planning, CREATE and CAFWA noted that chapter 4, part 3, deals with case planning issues and the content of case plans. However, clause 25, part 2, of the bill provides that 'a case plan does not create legally enforceable rights or obligations on the part of the chief executive, the Crown, the child or young person, or any other person'. We strongly support a greater level of accountability being provided in the act for the department's obligation to ensure that case planning and case reviews occur in conjunction with the child or young person where appropriate, and that case reviews take place at least on an annual basis.
Regarding chapter 5, CFC feedback, carers are considered to be mandatory reporters and must undertake relevant courses. Rather than relying on the regulations, it would seem logical to cover them in the law. Regarding part 1, clause 27(2)(a), reporting suspicions of abuse and neglect, CAFWA is concerned about the provision that:
'a person need not report a suspicion under section 1 if the person believes on reasonable grounds that another person has reported the matter in accordance with that subsection'. Whilst CAFWA understands that there is an impetus to reduce the overall number of unsubstantiated reports being made to the statutory agency, this particular provision may well result in people abrogating their responsibility to a court where they believe without substantive evidence that another person has made such a report. Further consideration needs to be given to provision and the potential implication that situations of abuse and neglect go unreported.
I seek leave to conclude my remarks later.
Leave granted; debate adjourned.
Sitting suspended from 12:58 to 14:00.
Adjourned debate on second reading (resumed on motion).
The DEPUTY SPEAKER: The member for Adelaide is on her feet as the lead speaker continuing her remarks, plural.
Ms SANDERSON (Adelaide) (15:57): Thank you very much, Deputy Speaker. I will just wrap it all up now and give other people an opportunity to speak on this very important bill.
It is clear from stakeholders that there is an imperative need for a fundamental shift from this government away from the existing crisis-driven responses. Yes, we need to have a system in place for children who have already experienced abuse or neglect, but we must also create a focus on early intervention and the health and wellbeing of families so that children are not entering the child protection system.
It is clear from the responses of stakeholders to the bill that there are stakeholders, such as carers and grandparents, who felt ignored and disregarded by this government and who have had very serious concerns that appear not to have been addressed in this legislation. The child protection system in South Australia could not function without carers and grandparents, and it is about time their concerns were addressed.
I am deeply disappointed about how the government has gone about presenting this final bill to parliament. As parliamentarians, it is our job to represent our electorates and the people of South Australia in this chamber. It is completely unrealistic to believe that members of parliament can speak on a bill the same day to which it was presented to parliament with no prior briefing on the final bill or consultation.
Yes, a draft bill was out for consultation, but we all are aware of the drastic changes that often occur between a draft and a final bill. This is disrespectful to the stakeholders, who deserve the opportunity to comment on the final bill before it is tabled in parliament, and it is also disrespectful to the children of South Australia who deserve a bipartisan bill of an incredibly high standard.