Children and Young People (Safety) Bill 2017

Adjourned debate on second reading.

(Continued from 14 February 2017.)


Amendment No 1 [Sanderson–2]—

Page 9, line 2 [clause 4(3)]—Delete 'traditionally' and substitute 'historically'

This is just a word change. The word 'traditionally' has connotations in Aboriginal and Torres Strait Islander culture and they would prefer that word to be 'historically', which I believe was the intention anyway.

The CHAIR: Is there only one spot in the whole bill where this occurs?


The Hon. J.R. RAU: I have no problem with that; that is fine.

Amendment carried; clause as amended passed.

Clauses 5 and 6 passed.

Clause 7.

The CHAIR: This is the beginning of our tricky bits. The member for Adelaide's amendment [Sanderson-1] 1 seeks to delete all words after the word 'The' in clause 7, page 9, lines 24 to 26. The minister seeks to delete words in the same clause, but later in the paragraph at line 25. To safeguard the minister's amendment, I propose to put the member for Adelaide's amendment in a truncated form as follows. I believe we have spoken to you about this.


The CHAIR: In which case, you need to listen carefully; I will say this only once. I propose to put the member for Adelaide's amendment in the following truncated form:

to delete all the words after the word 'The' on line 24 up to words 'so far as' on line 25 and substitute the deleted words with the following words:

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

If the member's amendment is agreed to, I will put the remainder of the member for Adelaide's amendment to delete the remaining words in clause 7. If the member for Adelaide's amendment is negatived, I will invite the minister to move his amendment [ChildProRef-5] 1 to delete the words 'so far as is reasonably practicable' on line 25.

What we are looking at initially is for the member for Adelaide to move her amendment [Sanderson-1] 1, but only to delete all the words up to where the minister's proposed amendment will take effect. I am sorry this is all so complicated.

Ms CHAPMAN: Can I ask, Madam Chair, why it is necessary to do that? Why are we not just moving the member for Adelaide's amendment?

The CHAIR: Because it cuts across.

Ms CHAPMAN: Quite clearly, the rules require that any amendments, in order, be presented. If the member for Adelaide wants to move her motion and subsequently the parliament determines in the committee considerations that some other worthy amendment needs to be considered then it would do so in that order.

The CHAIR: I am advised that, because the member for Adelaide's amendment would change the whole clause, it would negate the minister's ability to put his amendment in anywhere.

Ms SANDERSON: My understanding is that the government amendment is to only remove 'so far as is reasonably practicable', so why could that not just be added on to the end of mine? Why can we not move mine and then—

The CHAIR: Because once you do what you do, you finish everything. The reason that the table suggested that we do it this way is that you get to consider both parts.

Ms SANDERSON: Are you suggesting that we now say, instead of the paramount consideration being safety, that the paramount consideration will actually be the best interests of the child, where it is reasonably practicable?

The CHAIR: Let us look at your amendment. Your amendment on schedule (2) to clause 7 deletes the words 'paramount consideration' up to the end of 'harm' and substitutes 'best interests of children and young people must always be the paramount consideration in the administration, operation and enforcement of the act'. So, your problem is with 'so far as is reasonably practicable'?

Ms SANDERSON: Correct.

The Hon. J.R. RAU: Madam Chair, can I just indicate—

The CHAIR: Are you pretending you are superior to my Clerk, who is giving me advice?

The Hon. J.R. RAU: Quite the contrary, I am laying myself at the feet of your esteemed Clerk and saying we all know what we want to do and he knows everything about this matter. We are in his hands as long as, at the end, what is achieved is the will of the parliament.

The CHAIR: Yes, but the way that we get there is the problem. We are looking at amendment 1 on schedule (2), which is to clause 7. If the member for Adelaide moves her amendment, she takes out the whole clause. The minister is happy to keep part of that clause.

The Hon. J.R. RAU: Most of that clause.

The CHAIR: Most of it, in fact.

The Hon. J.R. RAU: So, there is no point in omitting something if you are going to succeed in taking it out.

Members interjecting:

The CHAIR: Order! What the table is trying to assist with is that it is done in segments so that everybody gets the chance to look at the whole clause, which, in the end, will either go up or down when it is amended or not.

Ms CHAPMAN: Can I just place this on the record, Madam Chair. There are a number of amendments tabled in this bill and as they are tabled they are available for the person interested in this bill to view them and identify if there is going to be some problem with further amendment. It is not a situation where we come into committee and are expected to try to salvage subsequent amendments because there has been a failure to convey a concern raised about the removal of a clause.

I appreciate the committee and the Chair and, of course, those advising trying to assist in the orderly management of amendments, but the Attorney and his wealth of advisers should have been alert to the fact that if there is a problem with the complete abolition of this clause then he should be able to salvage some semblance of what he wants in a latter area and convey that to the mover of the motion, who happens to be the member for Adelaide, and have this done in an orderly manner.

It is bad enough that this bill is a complete dog's breakfast as it is, and it is totally rude of the Attorney to come in here and rely on the goodwill of the table in trying to salvage his mess. I have made my point.

The Hon. J.R. RAU: I am not exactly sure what the member for Bragg is doing here because this is actually the member for Adelaide's bill, and the member for Adelaide can speak for herself. However—

Members interjecting:

The CHAIR: Order! I am on my feet. Everyone sit down and be quiet.

An honourable member interjecting:

The CHAIR: Order! I am on my feet. It may not appear that way, as my nose barely comes over the top of the table, but we have several sections and clauses of this bill where the same problem is going to occur, so we need to try to do this in an orderly manner at this point. The table and the Chair are trying to establish some method where all these clauses are done line by line and word for word, rather than en masse. Ultimately, we will vote on the amended clause in any case. We may want to come up and down stairs all morning—that is entirely up to everybody. We are always in your hands and led by you at that point. If you are particularly horrified by the idea of doing it in segments, that is up to you and we will test it, and then everyone will go up and down stairs all morning, or we—

Ms SANDERSON: It would have been good to have it in writing so that I knew what I was looking at.

The CHAIR: All we are trying to say is that when we look at the clause, your amendment takes everything away and the Attorney is trying to leave in almost the last few words of the clause. We can abolish everything and then maybe suspend everything and go away and have this discussion outside, but it is not going to make any great difference, from what I am being told, from doing it in order. It is important to the table to know that you are okay with that.

Ms SANDERSON: Yes, I am fine with that, thank you.

The CHAIR: In that case, we are looking at schedule (2), amendment No. 1 to clause 7 in your name, which you are moving, up to, as we suggested, deleting all the words after the word 'The' on line 24 up to 'so far as' on line 25 and then inserting:

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

Are you okay with that?


The CHAIR: Do you want to say anything over and above the general purview of what is going to happen?

Ms SANDERSON: Yes, I would like to say why I want to change the paramount consideration to be not only safety but to be in the best interests of the child. This was quite strongly endorsed by many of the stakeholders, such as the Aboriginal Legal Rights Movement and the Law Society, which stated in its notes:

Acting in the best interests of the child and determining what is the child's best interest was regularly noted in the Nyland Report as a key factor. However, the Children and Young People (Safety) Bill 2016 fails to identify 'acting in the best interests of the child' as the paramount consideration or guiding principle in the interpretation and application of the Bill.

All new legislation and amendments to existing legislation under the Children's Rights and Child Protection Agenda should be by reference to the primary obligation of all persons and bodies dealing with children to act in accordance with their obligations under Article 3.1 of the United Nations Convention on the Rights of the Child…which specifies 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.

This was also reiterated by the Law Society, which felt that the Family Law Act provided a suitable model for how the best interests of a child might be determined that considers the benefit of having a meaningful relationship with the parents and the need to protect children from physical and psychological harm, except in instances where the best interests of the child would be to have no direct contact with abusive parents. Article 18 of UNCRC acknowledges the importance of the meaningful relationship of parents, and that was the intention of this amendment.

The Hon. J.R. RAU: This is one of the points of significant remaining difference between the government and the opposition. This is one of those points which has cascading effects throughout the whole pile of amendments that are being offered, and I want to spend a little moment on it. Let us get a couple of things in context. First of all, what is this legislation about? This legislation is about the circumstances in which a child is in such an unsatisfactory position that the coercive power of the state is engaged to remove that child from their parents.

It is difficult to imagine a more intrusive act by the state than going in and taking a child away from their parent or parents. I guess a parallel intervention by the state is the coercive incarceration of an individual because of a conviction for a criminal offence (again, an exceptional interference in the liberty of the individual by the state). So, let us get really clear where we are starting from. This is the most severe interference by the state in what is otherwise an entirely private matter, being the relationship between a parent and/or parents and their children, and therefore it should be used only in the most limited and circumspect of cases.

The Family Court, when it is considering the position of children, is not, as a general rule, considering the circumstances of children where one or both of the alternatives available to that child involves that child being placed in circumstances where that child's future, in terms of their being safe from immediate acute risk of injury or harm, is weighing in the balance. Happily, in most cases where the Family Court is involved, the best interests of the child is probably not an unreasonable criterion, because we are dealing with the court balancing up alternative A, which is not unsafe, and alternative B, which is not unsafe, and the court is asking which of these two broadly satisfactory alternatives is the best offer from the perspective of the child.

That is light years away from what we are talking about here. What we are talking about here is where what is best for the child is a dream. These kids would love to be in a position where what is best for them is what is being argued about. These kids are way past 'what is best for me'; these kids are in a situation where, if the state does not intervene, they are at risk of serious harm, perhaps death. Let us get it clear: this is last resort—absolute last resort, break the glass, press the red button—legislation, and it needs to have that perspective fair and square from the beginning.

In the brief remarks made by the member for Adelaide, she mentioned something about the role of parents. In general terms, I agree that a parent or parents should be very important people when considering what happens to a child, but if that parent or parents have got to the point where they are so derelict in their responsibilities to that child that it is necessary for the state to interfere and get a court order to remove that child, the government takes the view that thereafter that parent or those parents have put themselves in a position where they should not be given special consideration over and above the consideration of the child, and the child should be the complete centre of any further consideration of that matter, including future connection with that parent or those parents, because they have put that child in such an extreme circumstance of disadvantage and risk.

The principle of the best interests of the child is set out in the United Nations Convention on the Rights of the Child. That makes the best interests of the child at least a primary consideration—not necessarily the paramount one—in actions and decisions concerning children. Of course, this UN convention is meant to have general application. It is not a convention specifically about children who are placed in these circumstances.

In the government's view, the bill is absolutely consistent with this on the basis that clause 8 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. Furthermore, clause 8 of the bill is given sufficient status in terms of priorities in the operation, administration and enforcement of the legislation, which is consistent with the convention.

The phrase 'best interests' has been removed, in effect, from the Family Law Act, and there is an attempt to migrate it into this legislation, legislation which, incidentally, is dealing with a completely different set of issues. I also make the point that the amendments sought to be made by the opposition provide no clarification or guidance about what 'best interests of the child' is meant to mean. I have to say that 'best interests of the child' is one of those phrases that in the hands of 50 people will almost certainly receive at least 50 different interpretations and perhaps more. There will be some who will say that the 'best interests of the child' has a particular thing as the main point, whilst others will have a completely different point of view.

What this seeks to do is to introduce massive ambiguity and opportunity for special pleading into the critical decision about whether children will be taken away from their parents. Quite frankly, we should be restricting that removal power of the state to situations where the children are at risk of being harmed, and 'at risk of being harmed' is defined in this legislation. It is not a matter for interpretation. It is not a matter of what one person thinks or another person thinks. This is a highly subjective amendment and I feel strongly about it.

The CHAIR: I can tell, but we are only on clause 7, and the way I see it we have a long way to go.

The Hon. J.R. RAU: Yes, but I am going to be able to say later, 'I refer to what I just said a while ago.' You are not going to have to put up with this again, I promise you, unless it keeps coming. The bill is about child protection, and I think I have made the point that we are trying to be really specific about this. It has nothing to do with the Family Law Act, and the government has indicated that there is an amendment, which was causing us a little bit of anxiety a minute ago, in which we will make it even clearer, by removing the words 'so far as is reasonably practicable'. Those potentially create a bit of ambiguity, so let's take them out. That is where we are going, we want to take them out. That is meant to be—

The CHAIR: You are talking to your own amendment now. Let's just concentrate on the first bit.

The Hon. J.R. RAU: I see. That's a warm-up, Madam Chair.

The CHAIR: No, keep yourself warm and do it in a minute.

The Hon. J.R. RAU: Okay, fair enough. Here is another very interesting point, and this is one I am going to say slowly because I want to emphasise this it. Safety being the paramount consideration in the operation of child protection legislation was introduced into the existing legislation by government amendments in 2015—and here is the bit I want to say very slowly—as a direct response to a recommendation of the Coroner (Mr Johns) arising from the inquest into the death of Chloe Valentine.

The words the opposition are trying to take out right now are the words that they supported putting in. In fact, they demanded that we put them in because those words were recommended by the Coroner. We put them in in 2015 in response to the Valentine case. The opposition are very happy to be seen standing next to Chloe Valentine's grandmother from time to time, endorsing her views on things. Have they asked Belinda Valentine whether she thinks it is a good idea that the Coroner's recommendations about what happened to her granddaughter should be ignored and nullified by the parliament? I do not think so.

Just to make it clear to members opposite, if you vote for the member for Adelaide's amendment, you are voting to say the Chloe Valentine recommendations, which you endorsed two years ago, are no longer relevant. You are saying the Coroner got it wrong in Chloe Valentine when the Coroner reported that the primary consideration must be the safety of the child. Let's get that really clear. It is a pretty simple vote this one.

Do we agree that everything that has happened in child protection since the Chloe Valentine inquest and those recommendations is right? Do we accept that all of the conversation that has occurred around Chloe Valentine's case and the recommendations of the Coroner are right? Do we accept that all of the standing next to Belinda Valentine and other supporters of this initiative over the last two years is right? Or do we say they are all rubbish, we are going to tear them up and we are going to go for some waffle that somebody has tried to graft onto this from the Family Law Act?

That is contrary to the recommendations of the Coroner. It is contrary to what this parliament itself did virtually unanimously two years ago. 'Unanimously', by the way, includes everybody over there. That is what is going on here. The Coroner's recommendation was clear: it was to amend the act:

…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 member for Bragg, seldom wrong, on 2 June 2015, not quite two years ago, said, 'Let us hope that in another 10 years' time,' this is two years' time, not quite, but let me stay with it, 'when someone is reading back on this debate,' this is the debate about Chloe Valentine, 'if they are a member of Families SA (or whatever the name of the department is by then)' and these are the important words of the member for Bragg, it is:

…crystal clear to them that safety and protection of the child against harm is the paramount consideration.

Is that me speaking? No. It sounds a lot like the Coroner, but, no, it is not the Coroner: it is the member for Bragg less than two years ago in this place in the debate about endorsing the Coroner's recommendations. Let me read that again:

…it is crystal clear to them that safety and protection of the child against harm is the paramount consideration. No matter whether it is severance from a cultural background, a mother no longer being able to live with them, a change of diet, a change of school, you name it, all of the disruption that otherwise comes to their environment, it is secondary to protection against harm.

I confess that I do not always agree with the member for Bragg, but my goodness she got it right then. She got it dead right—less than two years ago she got it dead right.

All I am saying to the opposition is: if it was good enough for your deputy leader to say that in this place less than two years ago, if that is what we have in this bill, if that is what the act says now because we amended the act in response to Chloe Valentine, with the enthusiastic support of the Deputy Leader of the Opposition, what has changed? What has changed? The answer is that nothing has changed, and that remains the paramount consideration.

It may be that the opposition now no longer considers that the safety and protection of children against harm is the paramount consideration. If so, let's have details, chapter and verse, as to what has changed so much since then. Or is it the case—and I cannot believe this; this would be not possible (well, it is theoretically possible, but it would not have happened)—that the deputy leader could have come in here and said what she said so clearly in June 2015 without the approval of her party room? I cannot imagine that would have happened. That could not have happened.

Or it could be that the Deputy Leader of the Opposition said what she did and still holds that view but has been overruled by the member for Adelaide? Perhaps that is why she was sitting in here a while ago—because she was worried about that. Who knows? Either way, the parliament and the public of South Australia need an explanation, if they intend to pursue this, as to why in the last two years those pretty robust and unequivocal words of the Deputy Leader of the Opposition, speaking in relation to the Valentine amendments, have changed. What has changed?

On this side, we are pretty damn clear about it. The paramount consideration is keeping children safe from harm, full stop, and, to make it even clearer—I know I should not foreshadow an amendment—I will just say that something might be coming. That is all I am going to say. I am not going to go into detail because I do not want to ruin it for people.

I absolutely oppose this amendment. The government completely opposes this amendment, and it is completely inconsistent with all the conversation about this since the Coroner's report in the Valentine case. We will absolutely oppose this and anything of this ilk that is lying ahead of us.

Ms SANDERSON: I would like to respond to that absolute barrage. What has changed in two years? We have had a $6 million royal commission that took two years, with 260 recommendations that this government is choosing to ignore. The government put out a bill late last year in response to the royal commission to which it received 62 submissions. They might as well have received none from the amendments they made after having a fake consultation.

Hardly any amendments were made, so much so that when the final bill came in earlier this year, in February, on the first day of parliament, it was so important that we had to suspend standing orders in order to get this through. So, we were all ready. We were forced to debate a bill we had not even read, that had not even taken into consideration the 62 submissions received by the government. The community was so outraged that it formed groups: the Law Society, SACOSS, the Aboriginal Legal Rights Movement.

Groups of people were forming together to fight this inferior bill because they were concerned about the safety of children and they were concerned that this bill is clearly the ambulance at the bottom of the cliff. This bill does not have any early intervention or prevention. They were so concerned that they are still recommending that we just get rid of the whole bill because we are better off keeping the bill we have from 1993. This bill, in the minds of the stakeholders and the community, is more about protecting the government than protecting children.

To say nothing has changed in two years, after you have spent $6 million on a royal commission that took two years and had 260 recommendations; yes, things have changed, and you have the feedback from the Law Society to say that they have changed. Not only is it implicit for safety, obviously, to be in the best interests of the child, but for you to think that my changing this to be in line with the United Nations Convention on the Rights of the Child and the recommendations of the Law Society, the Aboriginal Legal Rights Movement and other stakeholders, is ridiculous. Of course safety is important, but the paramount consideration should be what is in the best interests of the child—and, of course, safety is in the best interests of the child.

You are being ridiculous in your description to think that I would go against the safety of the child. My amendment is about putting the best interests of the child first and paramount, in line with the United Nations, in line with stakeholder feedback and in line with the Family Law Act. It is very easy to get a determination of what the best interests of a child means, and it certainly includes safety within that, so I stand by my amendment.

The Hon. J.R. RAU: I will not repeat all I said, but I ask the member for Adelaide, at her leisure, to read back what I had to say about the UN convention; this is consistent with that. As for stakeholders in this area—or 'interested groups', as I prefer to call them—all of them have a point of view and all those points of view are legitimate, but just because they come forward with a point of view does not mean they are right. The Law Society, for example, does a lot of good work in providing advice and recommendations about a great many things, but it is not always right either. The Law Society is not the oracle at Delphi and never has been.

The Law Society is a group of individuals who are lawyers who work together. They have subcommittees of lawyers who work together and some of those subcommittees are really well populated by people who know what they are doing and some of them are not quite as good, and some of them have particular agendas they are interested in. That is fine, that is life, but it does not mean they are right, and in this instance they are not. We disagree with them. We agree with the Coroner, we agree with the member for Bragg and we agree that the safety of the child is paramount and should be paramount, full stop, end of story.

If you want to start dealing with other issues, like whether or not children are better at one point or another point when they have the luxury of being able to have that conversation, because the children are not at risk of harm, that is some of the work we are talking about doing in the context of the early intervention legislation, which minister Close has been discussing with these people for some time.

If the member for Adelaide wants to insert, in that conversation, stuff about the best interests of kids and all that sort of stuff, I am not going to complain about that because that is not an unreasonable place for it to be, just like the Family Law Act is not an unreasonable place for it to be. However, we are not dealing here with kids who have a series of alternative, 'reasonable' choices; we are dealing with kids who have no choice at all.

Mr PEDERICK: This is a very serious matter and children and their safety must be absolutely paramount. I do not want to be tricky around this because it is not something to be tricky about, but this bill will relate to both foster children and natural children. The reason I am making this statement is because I am aware of a loving family with three foster children who have recently had them taken away because of a single bruise on one boy's leg.

As a parent, I do not know how many times my kids went to school with bruises because they fell out of trees or fell off a bike, and they were not taken away from me. I stress my point that the safety of children is absolutely paramount. Is it standard practice that one bruise destroys a loving family? I acknowledge that we need to look at the best interests of the child, but I need some clarification around that because, if every child gets taken away for every single bruise, you will need to hire every hotel room in the state.

The Hon. J.R. RAU: The member for Hammond is actually being quite helpful. First of all, I am not going to canvass an individual case because I do not know the circumstances. The member for Hammond is concerned about the power of the state being used to interfere in a relationship between a foster parent, or a natural parent, and the child. The member for Hammond is rightly concerned about the state barging in and disturbing those arrangements. I understand exactly what the member for Hammond is saying; I totally get it, and that is the government's position, too. We are saying that the bar for actually coming in and the state dragging a child out of a house should be high.

There should be another piece of legislation that deals with early intervention and tries to stop it ever getting to that position. The department should be focusing all its energy on trying to stop things ever getting to that position but, if they do get to that position—a last resort, 'hope you never get there' position, which unfortunately does happen all too frequently—then the government has to intervene. The member for Hammond and I are in the same space here, in that the bar for the government going in and intervening should be high.

If we compare the paramount consideration, being safety of the child, with the best interests of the child, guess which one is the higher bar? Member for Hammond, have a guess which one is the higher bar, the paramount consideration being the safety of the child or the best interests of the child. Which one is higher?

Mr Pederick: The best interests of the child.

The Hon. J.R. RAU: Wrong. Go back to square one. If you were on that program on Channel 7, you would not have won your money.

Members interjecting:

The CHAIR: Order!

The Hon. J.R. RAU: Maybe it is as simple as this: the members opposite do not understand what we are talking about here. It is pretty simple.

Members interjecting:

The CHAIR: Order! I am on my feet. Let's try to conduct the debate in perhaps a less inflammatory fashion.

The Hon. J.R. RAU: The highest bar or the paramount consideration is the safety of the child, as defined—(1) it is a high bar and (2) it is a clear bar. Everybody knows where it is because it is defined. The alternative is some waffly concept of the best interests of the child, which can mean anything to anybody. There is no universal view about this and it is a lower bar.

It might be argued that the best interests of the child gets down to whether or not the child gets to do their favourite recreational activities, for instance. I am not saying that is insignificant. It might be very important to the child, but that is not about whether the child lives or dies, or is fundamentally scarred from a physical or psychological point of view; that is about whether the child has optimum or not optimum enjoyment of life. That is a legitimate conversation about the best interests of the child; it is not a conversation about 'safe from harm'.

The CHAIR: The member for Hammond has a further question.

Mr PEDERICK: It is more of a statement. I concur with the member for Adelaide that it is in the best interests of the child that their safety is taken as a priority. I make that statement—and the point I was trying to make earlier—because under the current legislation there is obviously something wrong with the interpretation of what happens out in the field.

The Hon. J.R. RAU: We are dealing here with what I think is called the fallacy of composition: all crows are black, but that does not mean all black things are crows. The situation is that, yes, the physical or emotional harm of children is not in the best interests of a child. Agreed. All crows are black. That does not mean that the best interests of the child finish and are identical with and equivalent to physical or mental harm. One is a very broad, amorphous, undefined proposition and the other is quite specific. What I am saying is that the specific is a little bit of the very, very general. We are saying that the definition should be specific, and the specific deals with harm to children.

In relation to the general proposition, if the member for Hammond is saying, 'If you are looking at the best interests of the child, will it include not hurting the child?' then I agree with him—of course it will. However, it will include a hundred other things as well, things that are no doubt of interest to the child. For example, do they get to participate in team sport? Do they get to participate in the sport of their choosing? That may or may not be in the best interests of the child, but that is at a level of significance in terms of the child's future long-term prospects and far less significant than whether or not the child is immediately likely to suffer physical or emotional harm.

This is where there appears to be a confusion. We are trying to target this at those kids who are really at serious risk of harm. This is child protection legislation; it is not child welfare legislation. This is about children who are in a most dire circumstance.

The CHAIR: So, really, we are debating the use of the words 'best' and 'paramount'?

The Hon. J.R. RAU: No.

Ms Sanderson: Either 'best interests' or 'safety'—

The Hon. J.R. RAU: 'Safe from harm' or 'best interests'. That is really the proposition.

The CHAIR: But the word 'safe' does not appear in here anywhere. We are looking at 'best' or 'paramount'. 'Safe' is not in here.

Ms Sanderson: It must be 'safe from harm' or 'best interests'.

The CHAIR: Yes, but 'paramount' is the word the Attorney is saying supersedes 'best interests'.

The Hon. J.R. RAU: No, the critical words are 'paramount consideration' must always be to ensure that children are 'protected from harm'. The member for Adelaide wants to say 'must be in the best interests of the child'. 'Protected from harm' is one proposition and 'best interests of the child' is the other. The rest is sort of decoration.

The CHAIR: So, the word 'paramount' is not part of the discussion then?

The Hon. J.R. RAU: That is not the main point of the argument.

Ms SANDERSON: In saying that, the Attorney-General has been talking about 'safety', not 'safe from harm'. The definition of 'harm' could be as wide as the definition of 'best interests', because 'harm' could be—

The Hon. J.R. Rau: But it is in the act. You don't have a definition of 'best interests.'

Ms SANDERSON: There is a definition under the Family Court Act.

The Hon. J.R. Rau: Yes, but you don't have that in your amendments.

Ms SANDERSON: Well, we could put it in.

The Hon. J.R. Rau: You haven't done that. You have had plenty of time.

Ms SANDERSON: You have amended your amendments; we could amend it now. I move the amendment standing in my name, as altered.

The CHAIR: We are on clause 7 and looking at [Sanderson-2] 1. We are proposing to move the member for Adelaide's amendment up to the words 'so far as'.

The committee divided on the amendment:

Ayes 19

Noes 23

Majority 4

Bell, T.S. Chapman, V.A. Duluk, S.
Gardner, J.A.W. Goldsworthy, R.M. Griffiths, S.P.
Knoll, S.K. McFetridge, D. Pederick, A.S.
Pisoni, D.G. Redmond, I.M. Sanderson, R. (teller)
Speirs, D. Tarzia, V.A. Treloar, P.A.
van Holst Pellekaan, D.C. Whetstone, T.J. Williams, M.R.
Wingard, C.    
Atkinson, M.J. Bettison, Z.L. Bignell, L.W.K.
Brock, G.G. Caica, P. Close, S.E.
Cook, N.F. Digance, A.F.C. (teller) Gee, J.P.
Hamilton-Smith, M.L.J. Hildyard, K. Hughes, E.J.
Kenyon, T.R. Key, S.W. Koutsantonis, A.
Mullighan, S.C. Piccolo, A. Picton, C.J.
Rankine, J.M. Rau, J.R. Snelling, J.J.
Vlahos, L.A. Wortley, D.  
Marshall, S.S. Weatherill, J.W. Pengilly, M.R.
Odenwalder, L.K.    

Amendment thus negatived.

The Hon. J.R. RAU: I move:

Amendment No 1 [ChildProRef–2]—

Page 9, lines 25 and 26—Delete ', so far as is reasonably practicable,'

Ms SANDERSON: I will just quote directly the Council for the Care of Children:

'The Bill continues to place safety above the best interests and wellbeing of children and young people, perpetuating a system which makes the removal of more children and young people inevitable. This is unconscionable at a time when our State is struggling to provide adequate care for an increasing number of children and young people entering and remaining in out of home care’ Mr Schrapel said.

Amendment carried; clause as amended passed.

Clause 8 passed.

The CHAIR: We need to draw the Attorney's attention to his schedule (3) and ask whether that has been superseded by his schedule (5). Had you thought of that?

The Hon. J.R. RAU: I am advised that set 1 is withdrawn and we are now proceeding with set 2. Set 1 is gone and set 2 is now what we are going ahead with.

The CHAIR: So, you are withdrawing schedule (3).

The Hon. J.R. RAU: I guess so.

The CHAIR: To say set 2 is another number we do not need up here.

The Hon. J.R. RAU: I am trying to insert new clause 8A.

The CHAIR: Your schedule (3) would be set 1. We do not need another number, so schedule (3) is going. You are withdrawing schedule (3) and now looking at schedule (5) to supersede that.

The Hon. J.R. RAU: That is what they are telling me.

The CHAIR: Everyone is happy with that, so we are now looking at your amendment on schedule (5) at No. 2, which inserts new clause 8A.

New clause 8A.

The Hon. J.R. RAU: Yes, it does. I move:

Amendment No 2 [ChildProRef–2]—

Page 9, after line 35—Insert:

8A—Wellbeing and early intervention

Without limiting a provision of this or any other Act or law, State authorities whose functions and powers include matters relating to the safety and welfare of children and young people must have regard to the fact that early intervention in matters where children and young people may be at risk is a priority.

This is really in response to some of the feedback we had. We were attempting to make it clear that, yes, early intervention is a priority for the state. We want to make it clear that this bill is not intended to be a substitute for or a remedy for or an answer to the needs of early intervention. Indeed, as I said, minister Close has already opened up the conversation with all the concerned groups about having a specific piece of legislation which deals with that space.

However, just to make it abundantly clear, because some people who were looking at the bill somehow misunderstood or were confused or whatever, we want to make it very clear that early intervention is absolutely a terrific thing but that this bill is not the primary place where early intervention is being governed. That is another matter, but a very important matter, and we wanted to formally acknowledge that.

Ms SANDERSON: I would like to make the point that the Attorney-General asked what has changed in two years, in reference to the former clause, yet he is amending his own amendments to a bill that was put out for consultation and amended, only briefly, and then he submitted amendments on 1 March and then amended his own amendments on 28 March. So, things do change —and he is changing his own amendments, so of course things change—that is my only point.

The CHAIR: Any further comment?

The Hon. J.R. RAU: It is a condition of life.

The CHAIR: No further comment really.

New clause inserted.

Clauses 9 and 10 passed.

Clause 11.

The Hon. J.R. RAU: I move:

Amendment No 3 [ChildProRef–2]—

Page 11, lines 9 and 10 [clause 11(2)(b)]—Delete 'with as much self-determination as is reasonable in the circumstances'

I am moving this because we received some feedback from groups indicating some concern about this wording and, rather than have an argument about something that was really by way of explanation rather than anything else, we have decided that we would remove it, so that concern has been satisfied.

Ms SANDERSON: I expect that would mean that my amendment No. 2 to delete subclause (5) would therefore no longer be needed because I believe it has the same intent and that was in response to the complete outrage that was expressed, particularly by Aboriginal groups, and I will read it directly:

This completely undermines the Aboriginal Torres Strait Islander Child Placement Principle as it allows for the child to decide such serious matters of cultural identity before the child has become an adult, thus not being able to truly consider the consequences of such an important decision.

So, I welcome the government's amendment.

Amendment carried.


Amendment No 2 [Sanderson–2]—

Page 11, lines 36 to 38 [clause 11(5)]—Delete subclause (5)

Amendment carried; clause as amended passed.

New clause 11A.


Amendment No 3 [Sanderson–2]—

Page 12, after line 15—Insert:

11A—State authorities to seek to give effect to United Nations Convention on the Rights of the Child etc.

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

Given that it has the same intent, I believe, as what we have just debated at length regarding the definition and what should be paramount—whether it should be risk of harm or the best interests of the child—I move it and know that I am going to lose.

The Hon. J.R. RAU: The member for Adelaide is right. There is a number of her amendments here which are all part and parcel of a similar proposition, and to the extent that we have dealt with the main issue once, there is probably not much point in either of us spending a lot of time in doing it again. I agree with her that this is another example of the original thing so we oppose it.

New clause negatived.

Clause 12.


Amendment No 2 [Sanderson-1]—

Page 12, line 27 [clause 12(3)]—Delete 'or the Chief Executive'

The Hon. J.R. RAU: This is the first in a series of amendments that are about another topic. The other topic is about whether in fact the children who are the subject of this legislation should be termed to be 'guardianship of the minister children' or whether they should be 'guardianship of the chief executive children'. Put quite simply, the government's position is that, consistent with every other state, we should have 'guardianship of the chief executive'. The amendment the member for Adelaide is moving presently is to revert that to the present circumstance, which is guardianship of the minister, which is, around Australia, an anomalous position.

We disagree with the member for Adelaide about this, and so this particular conversation is one that will repeat itself because there are a number of places in the legislation where reference to the minister or reference to the chief executive is picked up. If the government's position is maintained, a whole bunch of amendments the member for Adelaide has put forward basically fall away. If the member for Adelaide's position is maintained, a whole bunch of the government's positions are varied, and all her amendments are basically consequential.

In relation to this, I simply say that we disagree with the fundamental proposition, so we will be opposing this. Likewise, this is, from our point of view, a tester for the broader proposition about guardianship of the minister or guardianship of the chief executive.

Ms SANDERSON: Firstly, the Children and Young People (Safety) Bill was in response to the Nyland royal commission. Can the Attorney-General tell me which recommendation refers to the changing from the minister to the CE?

The Hon. J.R. RAU: As far as I know, there was no particular recommendation from the Nyland royal commission pertinent to this point. With all due respect to commissioner Nyland, commissioner Nyland is not the parliament. Commissioner Nyland is not even the drafting committee of the parliament. Commissioner Nyland was a respected royal commissioner who made certain recommendations. That does not mean that the government is confined only to matters raised by her in seeking to put a new bill before the parliament. Nor does it mean that, necessarily, every proposition she puts up we have to bring before the parliament. Overwhelmingly, the government has agreed with the recommendations from commissioner Nyland. We are not saying that this is a product of any recommendation she has specifically put forward about this matter.

Ms SANDERSON: I disagree with the idea that the responsibility of looking after guardianship children should move from the minister to the chief executive. Also, many of the stakeholders were against it. The Guardian for Children and Young People stated:

[There was a] lack of developed rationale for this proposed change...The Guardian is unaware of evidence that substantiates an assertion that designating the Chief Executive as a child's legal guardian achieves better outcomes for children and young people in out of home care.

It continues:

The removal of the Minster as the primary focus for responsibility and accountability leaves them with residual capacities and duties in the Bill.

The Law Society said, and I quote:

The shifting of the responsibility in the Bill for child protection from the Minister to the Chief Executive of Child Protection is a retrograde step...Child protection is far too important for it not to be clearly the responsibility of a Minister in the Bill.

As the future minister, hopefully, in less than a year, I would be more than happy to have the responsibility on my shoulders. I can see that moving it to the CE would be a good way of removing this risk, and I can see why the Labor government might want to do that after 15 years of failing our children.

Just because other states do something, it does not mean it is the right thing to do. We have an ice epidemic in Adelaide; it does not mean that we should all join it. There is no proof. What is the statistical proof that it is better for the child or the young person to be under the guardianship of the CE rather than of the minister, other than risk aversion and moving away from the responsibility of the government, which the Westminster system is built on? The minister must take responsibility for the department. This removes that responsibility, which I believe is in contravention of the Westminster system, and I oppose it.

The Hon. J.R. RAU: Very briefly, if this is contrary to the Westminster system of government, then every other state of the commonwealth is in serious trouble because they have been ignoring Westminster for quite a while. The other thing is that on a day-to-day, practical level, to be completely realistic about it, the chief executive of the department is obviously in more immediate and continuous contact with the agency than the minister.

The minister has all sorts of other duties as well. The minister is not sitting in a position administratively where they are the recipient of all information feeding up through the department as a primary point of contact. The minister is not actually, in any administrative set-up, in the quickest place that information gets to. The minister will ultimately be briefed, I guess, and certainly in these matters, but if you are looking at something that is timely and direct the chief executive is closer to the action than the minister is in a day-to-day, moment-by-moment sense.

We think it is far more consistent with providing that sort of nimble response to circumstances to have the chief executive in this particular frame, and legally so, but it is a point of difference between the government and the opposition. I do not think I can take it much further than that.

Mr GRIFFITHS: I have a further question along this line, minister. I understand the practicalities associated with management and the need to be responsive quickly, but accountability has certainly been a big issue for me, and we have also had the discussion as part of the planning legislation. There have been some modifications there that have gone both ways where I have talked about accountability that requires responsibility.

You referred to other states within the commonwealth and the change they have made by making it the responsibility of the CE. I presume that that has evolved over some time. What evidence, in a practical way, are you able to provide to this committee's discussion about the change in the implication and, I presume, benefits, which is why you have done it, brought by doing this in other states? Have we found a lower incidence of children who have been in harmful places because of the ability of the CE to be responsive immediately and the minister not involved, or is it more some form of a philosophical decision that has been made, seemingly individually but now collectively, to reach that position?

The Hon. J.R. RAU: It is a very good question, and the answer to the question is essentially this. I do not offer the example of other states to prove that there are statistics behind that where you can say, without any question, that those statistics prove that moving it from minister to chief executive improves outcomes. I am not saying that. All I am saying, in response to the proposition that the Westminster system is somehow being destroyed by doing this, is that it is not. That is all I am saying.

In terms of the outcomes, I do not think there is any comparative data of the sort the member for Goyder raises. All I am saying is that it is a matter of common sense. Having the decision-making closer to the action, where the chief executive would be, means that there is potential for a more timely response. Given that that possibility arises from this change, and given the fact that elsewhere around the country it has been done without any serious apparent detriment, although I am not able to point to any massive bonus either—I do not want to overcook it—we think it is an appropriate change.

Amendment negatived; clause passed.

New clause 12A.

The Hon. J.R. RAU: I move:

Amendment No 5 [ChildProRef–2]—

Page 13, after line 18—Insert:

Part 5—Additional functions of Minister

12A—Additional functions of Minister

(1) In addition to any other functions the Minister may have under this Act, the Minister must, in order to promote the wellbeing of children and young people and early intervention where they may be at risk of harm—

(a) promote a partnership approach between the Government, local government, non-government agencies and families; and

(b) promote and assist in the development of co-ordinated strategies for early intervention in cases where children and young people may be at risk of harm; and

(c) promote and support evidence-based programs delivering preventative and support services directed towards strengthening and supporting families and maximising the wellbeing of children and young people; and

(d) promote, encourage or undertake research into matters affecting children and young people; and

(e) generally do such other things as the Minister believes will promote the wellbeing of children and young people, and promote and support early intervention where they may be at risk of harm.

(2) Without limiting a provision of any other Act or law, the Minister must, in relation to the operation of this Act—

(a) collaborate with and assist Aboriginal and Torres Strait Islander communities to develop and implement strategies to ensure that Aboriginal and Torres Strait Islander children and young people are, so far as is reasonably practicable, protected from harm; and

(b) ensure that education relating to the operation of section 28 is made available to persons who are required under that section to report a suspicion that a child or young person is, or may be, at risk; and

(c) promote and support the provision of courses of instruction relating to the prevention of child abuse and neglect by tertiary institutions in this State; and

(d) collect and publish statistical data in relation to the protection of children and young people in this State.

(3) Without limiting a preceding subsection, the Minister must also ensure that—

(a) assistance is provided to evidence-based programs delivering services directed towards strengthening and supporting families and maximising the wellbeing of children and young people; and

(b) those services are offered to children and young people and their families; and

(c) genuine efforts are made to encourage children and young people and their families to avail themselves of the services.

This introduces additional functions to the minister and, broadly speaking, this amendment is responsive to some of the feedback we received about early intervention. Again, I emphasise that the early intervention aspect of things that the minister has already undertaken will be the subject of a separate piece of work in terms of the framework. Just to make it crystal clear that this is not meant to be a substitute for early intervention and that early intervention necessarily should occur before we ever have recourse to this piece of legislation, we are explicitly adding in additional functions of the minister, which essentially go to that early intervention concern.

New clause inserted.

Clause 13.

Ms SANDERSON: I believe my amendment to clause 13 is consequential, so it is no longer required.

Clause passed.

Clause 14 passed.

Clause 15.

The Hon. J.R. RAU: I move:

Amendment No 6 [ChildProRef–2]—

Page 16, after line 15 [clause 15(1)]—Insert:

(ba) there is a likelihood that the child or young person will be removed from the State (whether by their parent or guardian or by some other person) for the purpose of—

(i) being subjected to a medical or other procedure that would be unlawful if performed in this State (including, to avoid doubt, female genital mutilation); or

(ii) taking part in a marriage ceremony (however described) that would be a void marriage, or would otherwise be an invalid marriage, under the Marriage Act 1972 of the Commonwealth; or

(iii) enabling the child or young person to take part in an activity, or an action to be taken in respect of the child or young person, that would, if it occurred in this State, constitute an offence against the Criminal Law Consolidation Act 1935 or the Criminal Code of the Commonwealth.

Ms SANDERSON: I believe we are now discussing putting back in what was in the original 1993 bill in relation to the female genital mutilation. That was then removed and now we are putting a back in.

The CHAIR: We are talking about 'medical or other procedure' at (i).

Ms SANDERSON: Yes, paragraph (ba)(i), and marriage. Marriage was my private member's bill that was rejected last year, but it is now inserted here. I have amendments also drafted, but not in the definition section. I am told that they would do a similar thing. I had the issues of female genital mutilation and child marriage later in the bill. This is under the definition of 'harm', which certainly is one place where it could be put. I believe that it will have the same effect as my amendments were trying to achieve, just not with the extra practical outcomes, such as giving the police the power to go onto a property, to search a property and to remove a passport.

The CHAIR: According to this information at the table, schedule (5) amendment 6 is different from schedule (5) amendment 7 and schedule (2) amendment 4. Schedule (5) amendment 7 and schedule (2) amendment 4 are basically the same. Schedule (5) amendment 6, I am advised, is different from those two. We would be looking at schedule (5) amendment 6 first. Schedule (5) amendment 6 to clause 15 is different from the next two—that is, Attorney's amendment 7 on schedule (5) and your amendment 4 in schedule (2), which, I am told, are the same.

The Hon. J.R. RAU: I think, either way, the gist of it is, we agree on this.

The CHAIR: Yes, but as far as my procedure here, I am looking at schedule (5) amendment 6 first in isolation and then schedule (5) amendment 7 and schedule (2) amendment 4 are the same. You will let the member for Adelaide move her schedule (2) amendment 4, since you have been so chivalrous to do that the first time, and then we will move on to schedule (5) and your amendment 8.

The Hon. J.R. RAU: We are moving this amendment 6 to paragraph (ba), which picks up child marriage. In respect of the offence of mutilating a child, this has always been illegal. Under the Criminal Law Consolidation Act, it is illegal. By definition, somebody who commits an assault or is about to commit an assault on a child would be about to commit harm—by any definition—to the child. This particular amendment is completely unnecessary because it was already covered, but it was something people wanted to see. We are actually restating what, in effect, is the obvious and is already there, but it does no harm because it is only restating what is already the case. With respect to the marriage issue, I think that is something new.

Ms SANDERSON: I think the main difference between something that is illegal being in another act and putting it here is the ability to prevent it from happening. So, whilst it might be illegal to, say, remove a child for a marriage, you cannot prosecute them until it has actually happened and they have actually broken the law, whereas this enables you to prevent it, which I believe is far, far better and definitely required.

The Hon. A. PICCOLO: I have a couple of questions on this clause, but they also relate to subsequent clauses around this topic, in particular paragraph (ba)(i). I would disagree with the member for Adelaide on her interpretation of the existing law. I think the existing law does cover this area quite satisfactorily, even in terms of prevention. That is certainly my understanding from the advice I have in terms of how the existing criminal law is worded.

However, putting that aside, the minister and the member for Adelaide have similar, if not identical, provisions in both clauses in regard to mutilation of a child—amendment 4 of the minister and amendment 14 of the member for Adelaide. My question to both the minister and the member for Adelaide is: do these provisions and subsequent provisions protect boys and children of intersex?

The CHAIR: Who?

The Hon. A. PICCOLO: Protect boys—

The CHAIR: And?

The Hon. A. PICCOLO: —and intersex children.

The Hon. J.R. RAU: I think the member asks a very important question. There does appear to be some difference in the way in which the law presently treats certain cultural practices that affect female children compared with not grossly dissimilar cultural practices that affect male children or, potentially, intersex children. It is actually a very interesting question, and one that perhaps the parliament should look at, because I imagine there are number of people out there who have views about this; in fact, I know there are. I know some in the medical profession have views about this, which they express very stridently.

The CHAIR: It is fair to say that you are speechless.

The Hon. J.R. RAU: I am speechless. A select committee almost recommends itself, Madam Chair.

The CHAIR: What are we going to do, then?

The Hon. J.R. RAU: I think I would like this to go through—

The CHAIR: We will plough on?

The Hon. J.R. RAU: —but I am absolutely speechless about this and I am going to have to reflect on it.

The CHAIR: Between the houses.

The Hon. J.R. RAU: Yes. I cannot guarantee I can solve all the member's problems between the houses, but it certainly requires thinking.

The Hon. A. PICCOLO: The reason I raise this matter in all seriousness is that I think boys and intersex children are discriminated against in this provision and other provisions. People from both sides of the house spent quite a bit of time last year lecturing me and a few other people about the inappropriateness of discrimination, etc., yet this bill and the amendments proposed by the member for Adelaide clearly discriminate against boys and intersex children.

One can only assume—and I can be corrected—that the only reason these provisions are being discussed in this bill, when they are clearly covered in existing law, is a bit of dog whistling. The member for Adelaide went to great lengths in her earlier speeches today to talk about how children's safety is paramount, yet her own amendments allow the non-medical mutilation of boys and intersex children. That is what her amendments do. That is the practical application of what she is proposing today.

The minister has actually responded. The member for Adelaide has chosen not to respond, so I can only assume that either she does not care or it is a case of, 'Well, we are going to jump on the bandwagon and do a bit of dog whistling.' I would like her to explain why her amendments exclude these provisions as well.

Ms SANDERSON: I ask that you withdraw those comments. I allowed the Attorney-General to speak first because it is his amendment. I have every intention of speaking and I was seeking advice from parliamentary counsel. I would ask that you withdraw that I clearly do not care about this and that I have no intention of speaking.

Ms Redmond: And apologise.

Ms SANDERSON: And apologise, yes.

The Hon. A. PICCOLO: Sorry, I have no intention, Madam Chair. In her response she can castigate me.

The CHAIR: Why not withdraw and apologise and you can reserve your right to say it again afterwards if you are not happy? Withdraw and apologise what you are saying now because the member for Adelaide has not spoken—

The Hon. A. PICCOLO: So, it is a conditional withdrawal then?

The CHAIR: No. You are withdrawing it now and you can do something else later on if you do not believe her explanation is satisfactory.

The Hon. A. PICCOLO: I will withdraw until I hear further.

The CHAIR: And apologise.

The Hon. A. PICCOLO: And apologise.

Ms SANDERSON: Firstly, I would like to say that you obviously misheard the whole debate. I was asking that the best interests of a child be paramount and it was your party that wanted 'safety'; 'best interests' was mine. The female genital mutilation was in the original 1993 bill. The government then removed it from this new bill. There was outcry from many of the stakeholders and it has been put back in. I put it back in, along with child marriage, because that was a private member's bill of mine.

Anything that is illegal is still illegal, as the Attorney-General said. This bill and my amendments are all about stopping the removal of a child, so being able to take a passport. FGM really refers mainly to females. However, under law, if it is illegal, it is illegal anyway. What we are addressing is that there are thousands of children still in danger of FGM and child marriage, and they are being removed out of our country to where our laws do not hold any weight. The ability to remove the passport and stop them from leaving was the intent of my amendments.

The Hon. A. PICCOLO: At least the Attorney-General had the courtesy to address the issue I actually asked about. What the member for Adelaide has done in her response is skirt the issue altogether and tiptoe around it. She either did not understand the question or chose to ignore the question. The question remains. I am not disputing that best interest. I am not sure how the mutilation of boys and intersex children is in the best interests of the child, because there is a lack of consent. I do not understand why, if she believed her own bill did not go far enough last time, she did not extend that provision.

As I said, at least the Attorney-General had the courtesy to provide a direct response and actually respond to the question I asked. The member for Adelaide has chosen to ignore the question entirely.

Ms SANDERSON: I would like to respond to that. The amendments that I put in do not relate to what you asked for. If you want those amendments, why not go to the effort of drafting the amendments yourself? This has been in your party room a lot longer than it has been in mine, and you have had plenty of time to speak to your own party, your own Attorney-General. Why not draft the amendments if you have a problem? This not my bill. I am talking to my own amendments. You have asked a legitimate question, you have a legitimate concern—get an amendment drafted. Speak to parliamentary counsel and they will tell you whether it fits in here or not. I am not a lawyer, I am not an SC, I am not the Attorney-General. I have answered to the best of my ability.

The Hon. J.R. RAU: I want to thank the member for Light for his question. I hope I have answered the question, from my point of view, as best as I can. Can I say that in relation to this, though, there was just then a disturbing example of what I am concerned about: that in response to the member for Light, the member for Adelaide said, 'My proposal was that we were talking about the best interests of the child, and that would have picked this up.' If members of the house think about that for a minute—if that is what the member for Adelaide thinks her amendment would achieve—are we really in the business of saying to every Jewish family and every Muslim family that the people from the child protection department should be heading around to their place and knocking on the door because of a cultural practice that is required of those people?

That is a classic example of the elasticity and uncertainty of the concept of 'best interests of the child'. Some people—possibly the member for Light, and a whole bunch of other people, I think, many doctors—would say that particular practice is unsound, unsatisfactory and not in the best interests of the child. We have immediately had bracket creep or net widening—

The CHAIR: Parenthesis creep.

The Hon. J.R. RAU: Parenthesis creep, net widening. So, everybody whose religious orientation requires that particular procedure is by reason of it being now in the 'best interests of the child'—and this, by definition, not being in the bests interests of the child, at least from the point of view of the member for Adelaide—

Ms Sanderson interjecting:

The Hon. J.R. RAU: I am just trying to illustrate the vagaries of that particular phrase, but I commend this anyway.

Amendment carried.


Amendment No 4 [Sanderson–1]—

Page 16, line 24 [clause 15(1)(e)]—Delete 'is under 15 years of age and'

This was particularly to have regard to children up to the age of under 18, rather than under 15, as it is at the moment, which is definitely too young.

Amendment carried.

The Hon. J.R. RAU: I move:

Amendment No 8 [ChildProRef–2]—

Page 16, after line 33—Insert:

(4) In this section—

female genital mutilation means—

(a) clitoridectomy; or

(b) excision of any other part of the female genital organs; or

(c) a procedure to narrow or close the vaginal opening; or

(d) any other mutilation of the female genital organs,

but does not include a sexual reassignment procedure or a medical procedure that has a genuine therapeutic purpose;

sexual reassignment procedure means a surgical procedure to give a female, or a person whose sex is ambivalent, genital characteristics, or ostensible genital characteristics, of a male.

(5) A medical procedure has a genuine therapeutic purpose only if directed at curing or alleviating a physiological disability or physical abnormality.

I emphasise again that this is not necessary, but it does no harm because all it does is restate the obvious. If restating it makes people feel better, I am all for that.

Amendment carried; clause as amended passed.

Clauses 16 to 19 passed.

Clause 20.


Amendment No 5 [Sanderson–1]—

Page 18, after line 28 [clause 20(1)]—Insert:

(ha) if the child or young person is a member of a particular ethnic, cultural or religious community—a person who is a member of the relevant community and who, in the opinion of the co-ordinator, would be of assistance to the conference;

This is in regard to who may attend a family group conference. I believe, given that Australia is a very multicultural society where we have many religions and many cultural backgrounds, it should be inherent that if there is an appropriate person and the coordinator is of the opinion that they would add value, just as they add value for Aboriginal and Torres Strait Islanders, that should also be offered to other nationalities, ethnicities and religions.

The Hon. J.R. RAU: I oppose the amendment. What this seeks to do is to expand the scope of people entitled to attend a family group conference in respect of a child. Remember that the context of the family group conference in the scheme of the bill is: here are the people who are, for want of a better term, the extended family of the child. What this seeks to do is require, in some circumstances, a person who may not be a member of that group to be included in that group.

I do not particularly see that that is necessary, given that if they are a member of any particular group by definition their extended family will include people who are members of that group. If, for example, the child is an Aboriginal child, that means that members of their extended family, by definition, include Aboriginal people. That is necessary, and a necessary implication of being in a cultural group is that you are part of a cultural group, and therefore those people who are your extended family include members of the group and so on.

The basis for the opposition by the government is that the category of persons would already fall under clause 20(1)(j) which states:

any other person (not being a legal practitioner) who the child or young person, or their parents or guardians, wish to support them at the conference and who, in the opinion of the coordinator, would be of assistance in that role;

Remember that the recommendations of the royal commission are very clear on this child-centric view on how these things should work. If the child is of the view that they need somebody else there, then they can have somebody else there. We already have a tick in the cultural box because the child, if they are of that group, by definition, has extended family who are of that group.

Ms SANDERSON: Can the Attorney-General then please explain paragraph (h) and why that would not also be implicit and why it is different from what I am amending? The intent of my amendment is to do the same thing, just for other cultures.

The Hon. J.R. RAU: I have to say, to be perfectly frank, there are some provisions in this legislation which, a bit like the ones we have had lifted from the Criminal Law Consolidation Act, are there because there is an expectation on the part of some members of the community that those things are there. This is a piece of legislation that a lot of people identify with, and they feel they need to have familiar artefacts in it.

It is not unreasonable, I would have thought, for the Aboriginal community, which is a disproportionately large section of the people who come into interaction with this legislation, to have a strong view about the Aboriginal and Torres Strait Islander placement principles being reflected in some place in the act. So, that is a recognition of the fact that they in particular have a very significant interaction with this. It is something about which they feel strongly; it is therefore in there for that reason.

But I can say to the parliament that even if it were not there, the general principles that are in the act would deliver pretty much the same outcome for those children as they do for any other child. I want to be clear: I do not think that provision being in there actually delivers more to these children than they would have had were it not there, but I recognise that that community is very anxious that a reference to that be in there. In order to satisfy that concern, it is in there. I think it is covered off anyway. It is one of those things where the explicit statement of something gives people more comfort than them being assured the thing is covered.

Ms SANDERSON: Just to be clear then, you believe that paragraph (ha), which I was recommending, is covered adequately in paragraph (j), and you also believe that (h) is also covered in paragraph (j), but it is there because it is a familiar artefact?

The Hon. J.R. RAU: Quite frankly, yes. If you apply the reference 'ethnic, cultural or religious community' to Aboriginal people and then you apply the rules to them, I think you do capture the fact that their family, their extended family and whatever, would be brought into arrangements.

As the member for Adelaide would know from consultations that have gone on, members of the Aboriginal community have very strong views about particular forms of language with which they have become familiar, and the placement principles are one such proposition with which they are familiar and to which they have significant attachment. I am saying that it does no damage and it does no harm, to have it there. I am just saying that, as a matter of law, it probably does not add much but it is a recognition, and that is all.

Amendment negatived; clause passed.

Clauses 21 to 28 passed.

New heading, part 2.

The Hon. J.R. RAU: I move:

Amendment No 9 [ChildProRef–2]—

Page 24, line 3—Delete the heading and substitute:

Part 2—Responding to reports etc that child or young person may be at risk

Ms SANDERSON: My question is whether this has been assessed by stakeholders and their considerations added into it, or whether the government just made it up.

The Hon. J.R. RAU: I guess we made it up, to a point. This is a consequential technical amendment which arises from amendment No. 10, which is the one we are about to come to, the new clause 28A. It is describing the new clause 28A, and it did actually come from community concern regarding action to be taken by the chief executive with regard to reports received by the department. It is describing what follows it, in effect, and that was a response to some feedback.

Ms SANDERSON: Just to be clear, was this where it was changed from 'may cause' to 'must cause' an investigation? You still have 'must assess', but you still have—

The Hon. J.R. RAU: The answer is yes. It is around that conversation, and that is really where we are coming to with the next amendment on 28A—

The CHAIR: Which is your amendment No. 10 on schedule (5).

The Hon. J.R. RAU: —which is amendment No. 10.

The CHAIR: No, we are looking at amendment No. 9, schedule (5), which is putting the heading to allow the next bit to happen. This adds a new heading under clause 28.

New heading inserted.

New clause 28A.

The Hon. J.R. RAU: I move:

Amendment No 10 [ChildProRef–2]—

Page 24, after line 3—Insert:

28A—Chief Executive must assess and take action on each report indicating child or young person may be at risk

(1) The Chief Executive must cause—

(a) each report under section 28; and

(b) any other report or notification made to the Department that a child or young person may be at risk (however described and whether or not received under this Act),

to be assessed in accordance with any requirements set out in the regulations.

(2) The Chief Executive may, in the course of an assessment under this section, make use of or rely on such systems of information gathering, collating or reporting as the Chief Executive thinks fit (whether or not the system is operated or provided by a State authority).

(3) Without limiting any other action that may be taken by the Chief Executive, the Chief Executive must, on completion of an assessment under this section, cause at least 1 the following actions to be taken:

(a) an investigation into the circumstances of the child must be carried out under section 30;

(b) if the Chief Executive is satisfied that an investigation under section 30 is unnecessary, having regard to such of the circumstances of the child as may already be known to the Chief Executive, an alternative response that, in the opinion of the Chief Executive, more appropriately addresses the risk to the child or young person must be implemented;

(c) the matter must be referred to an appropriate State authority under section 29;

(d) if the Chief Executive is satisfied that—

(i) the matter has previously been dealt with under this or any other Act and there is no reason to re-examine the matter; or

(ii) the matter is trivial, vexatious or frivolous; or

(iii) there is good reason why no action should be taken in respect of the matter,

the Chief Executive may decline to take further action.

(4) The Chief Executive must, in accordance with any requirements set out in the regulations—

(a) cause a record of each action taken under this section, and the reasons for the action, to be kept in relation to each report or notification made to the Department; and

(b) include statistical information relating to action taken under this section to be included in the annual report of the Chief Executive under the Public Sector Act 2009.

This amendment is moved in response to feedback received by the government. The amendment will make it clear that the chief executive must assess and take action in relation to either a report received by the department under clause 28 of the bill or by any other means. This is the government's solution to implementing recommendation 63, which is in a way acknowledging the practical realities of work undertaken by the department. It also enhances the ability of the department to provide an alternative response which is better addressed to the particular risk; for example, it might be to refer to another state government agency.

This supports the government's reforms establishing a child safety pathway and child and family assessment and referral networks. The most significant aspect of this is subclause (3), which sets out what options are available to the chief executive once an assessment has been completed. Specifically, the amendment states that at least one of a following list of actions must be undertaken. It is also important to note that the government has imposed transparency measures in this amendment by means of a mandatory requirement on the chief executive to maintain a formal record in relation to each action undertaken. Secondly, the amendment requires the annual report from the department to include statistical information relating to clause 28 of the bill.

In terms of the concerns that have been raised in consultation, people were concerned that there might be a matter raised and the department would simply not even turn its mind to it. We accept that is not okay; that is what the government is saying. The government is saying, 'Yes, that is unacceptable.' However, what we do think is that what is done about the particular matter once it is assessed is not a matter for the parliament to dictate. It is a matter for the people on the ground, who have intimate knowledge of the circumstances and facts pertinent to the particular case, to make a judgement, and we have given them a menu of options from which they can make a selection.

So, the government has listened to the feedback about where these complaints are made they should be the subject of some consideration by the department; they cannot simply not be actioned. However, what we are resisting is the notion that it is for the parliament to determine a sort of one-size-fits-all approach, that a particular action will be the response of every complaint. We are saying, 'Fair enough, have everything dealt with, have everything examined, but, ultimately, for goodness sake let the people on the ground, who are familiar with the particular circumstances, make the decision as to which particular action is appropriate in that case.'

They have to record what they have done. It is not good enough just to say, 'Yes, we got the report, we had a look at it and we decided to do nothing.' You actually have to record, 'Got the report, considered what action to take, decided to do nothing,' if that is what you decide to do, or, 'Decided to refer to SAPOL,' or, 'Decided to do whatever.' So, there will be an audit line that can be filed in the future about how these complaints are being managed within the department and how they fall into the various classes of action, because there will be a written record of that.

Ms SANDERSON: How will the chief executive assess the thousands of calls that do not get answered, and where is that being taken into account? How will that be addressed, the thousands of reports that are not getting through the Child Abuse Report Line? It is good that you must assess the ones that get through, but there are thousands that do not get through. Is there any way of assessing those or addressing those?

The Hon. J.R. RAU: That is a very important point, obviously. The department is taking steps to improve the way in which the CARL and other mechanisms of complaint are functioning. We are not running away from the findings of the royal commission, that those mechanisms have in the past been choked, basically. There is a challenge for the department to work out practical administrative ways of chugging through that amount of information, and that is a work in progress. The government accepts that is a priority for the department. I can assure the member for Adelaide that it is a priority for the department, but the solution to that problem lies in a series of practical, on-the-ground administrative arrangements to be implemented by the department, not in this bill.

New clause inserted.

Progress reported; committee to sit again.

Sitting suspended from 13:01 to 14:00.

In committee (resumed on motion).

Clause 29.

The Hon. J.R. RAU: I move:

Amendment No 11 [ChildProRef–2]—

Page 24, lines 5 to 26 [clause 29(1) to (4)]—Delete subclauses (1) to (4)

Ms SANDERSON: The only question I have noted down is to ask for an explanation for what the intention of removing that is, if you could explain that.

The Hon. J.R. RAU: This is a consequential amendment from amendment No. 10. In deleting clause 29(1) to (4), they have already been subsumed into clause 28A.

Amendment carried.

The Hon. J.R. RAU: I move:

Amendment No 12 [ChildProRef–2]—

Page 24, lines 27 to 29 [clause 29(5)]—

Delete 'the Chief Executive determines that it is' and substitute:

, following an assessment of a matter under section 28A, the Chief Executive determines that it is more

This is another consequential amendment, again consequential on amendment No. 10.

Amendment carried; clause as amended passed.

Clause 30.


Amendment No 9 [Sanderson–1]—

Page 25, lines 6 to 13 [clause 30(1) and (2)]—Delete subclauses (1) and (2) and substitute:

(1) Subject to this Act, the Chief Executive must cause an investigation into the circumstances of a child or young person to be carried out—

(a) if a report is made under section 28 and the Chief Executive suspects on reasonable grounds that the child or young person may be at risk; or

(b) if the Chief Executive issues an instrument of guardianship or a restraining notice in relation to a child or young person; or

(c) in any other circumstances where the Chief Executive suspects on reasonable grounds that the child or young person may be at risk.

This is another controversial area where the chief executive currently 'may cause', and what I am proposing is that the chief executive 'must cause' an investigation into the circumstances of a child or young person to be carried out. Several groups have been in favour of 'must' versus 'may', not only but including the Deputy Coroner in the Lewis McPherson case. I will read from section 12.8:

I have seen recent media material lamenting the possibility that proposed legislation that would replace the existing Children's Protection Act 1993 would alter the mandatory nature of the exercise of the Chief Executive's powers that exist under section 19 of the current Act and would provide the Chief Executive with a discretion to cause an investigation and assessment of a child at risk. This does appear to be the case when one peruses clauses 30 and 31 of the Children and Young People (Safety) Bill 2017. This alteration would be a clear error. From the analysis below it is highly probable that in respect of Liam Humbles, the exercise of the Chief Executive's mandatory powers under section 19 of the existing legislation would have saved Lewis McPherson's life, and would have done so by virtue of the fact that they are mandatory.

The Deputy Coroner goes on to make recommendation 12:

I recommend that in the proposed new children's protection legislation, currently contained within the Children and Young People (Safety) Bill 2017, that the powers of the Chief Executive in relation to children at risk be maintained as mandatory powers.

It is on that basis, and on the basis of several other stakeholders recommending it, that on behalf of the Liberal Party I would like to amend 'may' to 'must' to protect the children.

The Hon. J.R. RAU: We oppose this particular amendment for the reasons I outlined earlier. First of all, going back to the royal commission report, recommendation 63 says to amend section 19(1) of the existing act, by deleting 19(1)(b) thereof, to provide that if the chief executive suspects on reasonable grounds that a child is at risk the chief executive must cause an assessment of, or investigation into, the circumstances of the child to be carried out.

The question is where 'must' cuts in. We are saying that the wording picked by the member for Adelaide would oblige an investigation in every single case, notwithstanding whatever other information might be available and notwithstanding whether or not it might, in all the circumstances, appear that an investigation was warranted.

We are saying that we have already provided a mechanism whereby every report must be actioned and there must be a record of what action was taken and why. We are just saying it is fine to say that the chief executive must turn his or her mind to each matter. We are quite fine with that. We are also fine with the notion that the chief executive must report, in a record form so that it can be later on audited and examined, what they did and why.

What we are saying we should not have to do is have a hardwired response in there, and in this case the hardwired response is a hardwired investigation. Basically, for that reason, because it would mean the department would be obliged to have an investigation for every complaint, in effect, notwithstanding the detail of any complaint, notwithstanding whether or not there had already been an investigation, notwithstanding whether or not any other number of events had occurred, we are just saying that is hardwiring and unreasonable—and ultimately wasteful in terms of a public resources process into the system.

We do not disagree with the general idea that the chief executive must turn his or her mind to each matter that is the subject of a complaint. We have embraced that in amendment 10, new clause 28A. We have picked that up but we do not agree with this particular proposition, and it is not consistent with the recommendations of the royal commission.

Ms SANDERSON: Could the Attorney-General outline to me the difference in the process between an assessment which we have just changed to 'must' as in the CE must assess, and the difference between the process for an investigation? When does it stop being an assessment and become an investigation?

The Hon. J.R. RAU: That is a very good question and my answer to that is—and if I am straying from the path of accuracy, there are at least three pairs of arms that will start waving shortly—an assessment means the chief executive must turn their mind to the fact of there having been a report. The chief executive must look at that report in its context and the chief executive must consider whatever other information the chief executive might have about the particular child who is the subject of the report. That is what I call an assessment.

An investigation would be a step farther than that. It would be that the chief executive then must commission one or more officers of the department to go out, in effect, and investigate in a very direct sense that particular child's circumstances. All we are trying to say is that that may not be the necessary or appropriate response in every situation. We do not argue with the fact that the chief executive should turn his or her mind to it. We do not have a problem with that. It is just that to say that, notwithstanding whatever comes from the assessment or the turning of the mind to that issue, the result will always be an investigation. That is the bit we are taking issue with.

It may be an investigation, but we are saying that it should not necessarily always be an investigation. It should be left to the chief executive to make a determination as to what the appropriate response is, and they must record what their response is and they must record in effect their reason for doing whatever they do. Looking at it through the rear vision mirror some years down the track, if we were concerned about a particular child, we would have a documentary record of when that complaint came in, when it was received by the chief executive, what assessment the chief executive undertook and what decision the chief executive took in terms of the response to that assessment which may or may not include an investigation.

Ms SANDERSON: So that I can get a clearer understanding of this, say in the Humbles case, if the chief executive had done an assessment—looked at the case, made an assessment that there was no investigation required—and a child ended up dying, and in hindsight the Coroner or the Deputy Coroner had said, 'Why didn't someone do anything about this?', what would be the consequences of the CE making that decision not to investigate because it is their choice now because you are making it a 'may' rather than a 'must'? If they have chosen not to take it further, what would be the consequences of that?

The Hon. J.R. RAU: In the hypothetical that the member for Adelaide has given, the consequence would no doubt be that the Coroner would reflect on whether or not the judgement exercised by the chief executive in the context of that assessment proved, with the benefit of hindsight, to be a correct judgement. If the Coroner was of the view that the judgement had not been a correct judgement, presumably the Coroner would make adverse comment about the judgement of the chief executive—which, I imagine, would be a matter of some concern to the chief executive.

The converse problem is: what if the Coroner determined that in that case the chief executive could not even get to make an assessment about this matter because they were too busy investigating 1,500 other matters that had landed on their plate earlier and they had no alternative but to investigate each and every one of them and had not got to this one?

I am totally in agreement with the member for Adelaide that what the chief executive does in respect of each complaint should be transparent, it should be recorded and we should all know what it is so that there is no question about whether it fell through the cracks or something. There should be accountability for what they do. However, ultimately it is not possible for the parliament, without command of all the individual facts of each case, to say with any confidence that an investigation is warranted in every case.

It is a bit like saying that every time a police officer or a police station receives a complaint from a member of the public about somebody else, no matter how superficially unreliable that might appear, the police are nonetheless obliged to go through the process of investigation into each matter. That is the sort of idea we are trying to pick up. We are not trying to get away from the chief executive being accountable: quite the contrary, we are actually saying that the chief executive is going to be accountable because there is going to be a written record, a documentary record, of the fact of their having turned their mind to the matter and what they decided to do. We are just saying that it may not be that in every case an investigation is the necessary, automatic response.

It might be, in some cases, that it is so obvious, on the face of the assessment, that the thing to do is just send the team out and intervene and take the child away. In other cases, it might be that they have a serial complainer, one who is known by everybody to be an unreliable person, possibly a person who is mentally unwell, the sort of person all of us occasionally entertain in our electoral offices, who is not a credible person. You would not want a whole bunch of investigations triggered in those circumstances either. We are just saying that we should let the chief executive bring judgement to that decision, but that they should be accountable for what they decide.

Ms SANDERSON: I guess my only issue would be that that would work if the CE had years and years of experience on the ground, or they may have a social work degree and they worked their way through the department. However, if you brought someone over—for example, the deputy commissioner of police became your CE, or someone from an education background who had only ever worked in schools, but you bought them in from England, or they were not from our country and they became the CE—how can they make that assessment? That is my issue.

The Hon. J.R. RAU: This happens in every department. Obviously, within the administrative structure of this department there would be a series of experienced people upon whose advice the chief executive would rely. There would probably be a set-up of delegations, that certain types of matters could be delegated by the chief executive to certain key experienced people. I think that is a matter that the Public Service has to cope with across the public sector, so I do not think that in itself is necessarily a problem. I am sure the administration of the department would be capable of making sure that either the advice coming up to the chief executive or the delegation down from the chief executive to the relevant officer would be appropriate to that problem.

Amendment negatived; clause passed.

Clause 31.

Ms SANDERSON: My amendment No. 10 on schedule (2) is consequential, so I will dispense with that.

Clause passed.

New clause 31A.

The Hon. J.R. RAU: I move:

Amendment No 13 [ChildProRef–2]—

Page 26, after line 4—Insert:

31A—Chief Executive may direct person to undergo certain assessments

(1) If the Chief Executive reasonably suspects that a child or young person is at risk as a result of the abuse of a drug or alcohol (or both) by a parent, guardian or other person, the Chief Executive may, by notice in writing, direct the parent, guardian or other person to undergo an approved drug and alcohol assessment.

(2) If the Chief Executive reasonably suspects that a child or young person is at risk as a result of a lack of parenting capacity on the part of a parent, guardian or other person who has, or is responsible for, the care of the child or young person, the Chief Executive may, by notice in writing, direct the parent, guardian or other person to undergo an approved parenting capacity assessment.

(3) A person must not refuse or fail to comply with a direction under this section.

Maximum penalty: Imprisonment for 6 months.

(4) A notice under this section must set out the information required by the regulations for the purposes of this subsection.

(5) The regulations may make further provision in relation to assessments under this section (including, to avoid doubt, provisions requiring the results of an assessment to be provided to the Chief Executive or some other specified person or body).

(6) For the purposes of this section, a reference to an approved drug and alcohol assessment will be taken to be a reference to a drug and alcohol assessment of a kind approved by the Chief Executive by notice in the Gazette.

(7) For the purposes of this section, a reference to an approved parenting capacity assessment will be taken to be a reference to a parenting capacity assessment of a kind approved by the Chief Executive by notice in the Gazette.

This amendment seeks to insert new provisions that give the chief executive power to direct persons to undergo prescribed assessments for the purpose of the act. This arises from the royal commission recommendation 60. Under the provisions of the current bill, the power to order drug assessments currently rests with the Youth Court. This amendment will give the function to the chief executive, in addition to the ability to direct a person to undergo a parenting capacity assessment.

Equipping the chief executive with these powers will contribute to the efficiency of the system, which can only be of benefit to the child or young person on whose behalf the department is acting in order to keep them safe. Subclause (3) of the amendment also creates an offence that 'a person must not refuse or fail to comply with a direction under this section'. At the moment, Madam Chair, if you are going to have to go through the Youth Court to get one of these directions—

The CHAIR: I am too old for that, I believe.

The Hon. J.R. RAU: If one were—not you, but if one were—seeking to go through the Youth Court to do this, it is both expensive and time consuming. We have to fit into the time lines of the Youth Court. That is not to say that the Youth Court does not make good decisions but, if this were a time sensitive matter and it were an obvious proposition that this sort of assessment were needed, we should not have to go through that process just for the sake of that process. In effect, we are actually streamlining the process to enable the chief executive to undertake these activities.

Ms SANDERSON: I believe that this new clause was in the original draft that went out to consultation, then it was removed and then it was put back in. Why is that?

The Hon. J.R. RAU: Yes, the original iteration of the bill contained a version of this which did not include parenting assessments. I think it is fair to say that we listened to feedback about this and, as a result of the feedback, it has been returned to the bill with the addition of parenting assessments as well. So, it is actually broader than the original proposition in the draft bill.

Ms SANDERSON: I have a question regarding new clause 31A(3). What were your thoughts behind the imprisonment for six months? Did you consider the possibility of drug rehabilitation or education? Were there other things that you looked at because obviously removing a parent from their children causes a lot of distress to the child? They can also then connect to another family and then they are removed. It makes it very difficult for everyone to remove a parent for six months if there are other alternatives available.

The Hon. J.R. RAU: That is a very good question and we did think at some length about this. Ideally, the last thing we want to do is to go through a criminal process in the context of child protection if we can avoid it. That said, if we simply had a provision in here that said, 'Parents who are given a direction by the chief executive must do X and Y,' and there was no consequence for not doing it, we would have no means of actually expecting people to comply because their view would be, 'Well, if I don't comply, what are you going to do to me?' That provision is there not because I actually expect it to be resorted to ever but because, if we do not have some sanction for noncompliance, the message will get out there very quickly, 'Look, just ignore them because, whatever they say to you, they can't do anything to you anyway.' That is why it is there.

As to the six months, that is a maximum term. Even if one of these were prosecuted, the chance of anybody being imprisoned at all would be small, and to get anywhere near a six-month term they would have to be a serial offender who has repeatedly refused to comply. This would be an extremely rare thing, if it happened at all. But if we do not have a sanction in here, what do we say to these people whose attitude is, 'Well, come on. Make me do it. You can't touch me'? We do need them to take these directions seriously, otherwise the directions are just empty words.

Ms SANDERSON: Would you ever consider mandatory drug treatment rather than prison for adults or under 18s where it is endangering a child's life and their own potential to be a parent?

The Hon. J.R. RAU: Mandatory drug testing did you say or—

Ms SANDERSON: Mandatory drug treatment—going to a facility.

The Hon. J.R. RAU: The mandatory drug treatment is really a matter for the courts. They have drug treatment programs. My knowledge of those is not detailed, but I can tell members that there is considerable controversy about whether mandatory drug treatment works. It is much like any other thing where you compel a person. The literature is very split. In fact, as best I understand it, the literature leans towards the proposition that compelling people to undertake this sort of treatment is actually counterproductive. You get passive resistance. They go through the motions, but it does not make any difference and there is a resentment aspect to it.

Examples around the world where courts have become involved in drug treatment tend to show that the participants who volunteer, in effect, to submit to the drug treatment are the ones whose outcomes are more likely to be positive. The courts have a process at the moment which I think they refer to as a Griffiths remand. If somebody who has a drug problem comes before the court for a criminal offence, the court can say, 'If you want to participate in this treatment program, you go away and participate in the treatment program and then come back. We will sentence you after the treatment program, and we will take into account how well you have performed in the treatment program in determining what your ultimate sentence might be.'

In that circumstance, the person says, 'I can go off and participate in rehab and if the rehab report is really positive I can show that to the court.' The court is likely to say, 'Having regard to your cooperation with rehab, we're going to give you a very light sentence or we'll put you on a bond by reason of you having demonstrated your commitment to getting better.' That happens now, but the idea of compulsorily putting people into treatment programs is another one of these things about hardwiring things in. You would hardwire in a whole bunch of people going to programs they did not want to go to, which would cost the community a lot of money, and it is very debatable whether even a small fraction of the people who are inducted into a program that way would actually improve.

Ms SANDERSON: Is there any research or are there any studies that show that sending someone compulsorily to prison does anything for drug treatment? How many are off drugs or rehabilitated when they come out? Are there any comparisons between those who were sent to mandatory drug treatments for six months or a year and those who went to prison? I am not sure that sending them to prison has a better outcome than mandatory drug treatment, because they are both mandatory.

The Hon. J.R. RAU: I understand the point. As to figures on how many people enter prison as a drug-addicted person, and how they perform by the time they leave, I do not have those at my fingertips. I could certainly ask the corrections minister to see if he could give me some information about that.

I emphasise again, in this case, that the idea of a person being imprisoned at all would be an exceptional, rare circumstance where somebody has repeatedly ignored directions. It would be very, very unusual. Again, I am not sure whether there are studies on compulsory treatment orders for drug addiction administered by courts. We do not do that here to the best of my knowledge. They are always court ordered as opposed to hardwired in by the parliament. My preference is to leave it with the courts. They do have experience of trying to manage people with drug problems, and let them make the determination on each case as it comes before them about how best to deal with these folks.

Ms SANDERSON: Part 6 states:

For the purposes of this section, a reference to an approved drug and alcohol assessment will be taken to be a reference to a drug and alcohol assessment of a kind approved by the Chief Executive by notice in the Gazette.

Could you give me an outline of what you propose. Obviously, at the moment we have swab tests that you can do by the side of a road when the police pull you over. At the airport, many people have a swab done on their clothing and they get a result very quickly.

My experience over the Christmas break was that we had a father who took his twins to see their mother and she kept them. I had a copy of the safety plan that clearly said the mother had tested positive to five drugs, that under no circumstances should she be left with those children, and I had two letters from the department stating drug use and substantiated neglect over feeding the children, yet I could not get the department to remove those twins over Christmas. We were forced to wait until the courts opened to get a court order to have those children removed from the mother.

I asked the department and they did a safety visit. They deemed that the mother was safe. I asked, 'Did you do a drug test?' and they said, 'No, it doesn't work that way. We have to send her to DASSA.' I said, 'Did you book it in when you where with her?' 'No, we didn't. We have to get back to her and book it.' The process at the moment seems slow and cumbersome and it is not done immediately, as you would on the side of a road.

These children are potentially in danger right at that second, so the quicker we can get drug tests done and a result and action the better. If we can do it for the airport, and we can do it for drug and drink drivers, why can we not do it to keep our children safe? Those children were left there for weeks, and the father was beside himself. I had rung everybody possible to try to have those children removed, and it was horrifying worrying about that every day over the Christmas break until the courts opened. How do we fix it with this legislation?

The Hon. J.R. RAU: Again, that is a very good question. I think the short answer is that we are now into operational aspects, in other words, things that would be part of the day-to-day administrative activity of the department. That said, what I would imagine we are talking about here with approved drug and alcohol assessment is that it would go to both the testing regime, and possibly the assessment tool, that is applied over the testing regime.

For example, it would cover off what form of prescribed swab. I assume that there are many manufacturers of this type of stuff out there. It would say test A or test B, much as we have with driving where there is a prescribed breathalyser unit. If your reading is not from a prescribed unit, it is not a valid reading for the purposes of the act. That is the first bit of it: it would specify what sort of measurement tools are approved for the purpose of the act. The second thing it would probably do is have some assessment tool because purely and simply because you return a positive for cannabis would not in and of itself necessarily mean that you were then obviously completely incapable of being in control of a child.

I think there are two bits to it. One bit is what sort of equipment you use to measure these things, and the second one is some sort of matrix that you then apply to the circumstances of the individual to make a risk assessment. In my mind, that is what we would be talking about putting in the regulations. Hopefully, that would deal with the sort of situation the member for Adelaide raised about this circumstance over Christmas. That is, as I understand it, the intention here.

Ms SANDERSON: In section 20, part 2, if the chief executive of the current bill suspects drug use they must offer an assessment. However, if it was not being used and now it has been for the last two years and they have had over 1,000 drug tests, does this require that they must? Is there any requirement that something happens if it does come back positive?

The Hon. J.R. RAU: The wording of this says that they 'may direct' one of these texts. There is a passage from the royal commission report that I think is relevant. I am reading from page 200 of the royal commission report, about halfway down the first column on the left-hand side. The royal commission, talking about a drug assessment, states:

However, it is unrealistic to prescribe by legislation when such an application should occur. This is a matter for professional judgement by trained, experienced practitioners under ongoing clinical supervision and supported by clear organisational policy as to the importance of responding to protect children from all types of abuse and neglect. A legislative mandate would mean that workload management efforts would focus on the need to comply with legislation to address particular kinds of risks, potentially neglecting other, equally serious types of risk.

What I am interpreting the royal commission as having said there is, again, that if you hardwire something in as a hardwired response you will devote a lot of resources to that thing, but it may not be that every single case in which those resources are applied is a useful application of the resources, and, in doing that, those resources are then not available to be applied somewhere else where they might be more usefully applied. I think that is absolutely consistent with what we are attempting to do here.

Ms SANDERSON: To clarify, does that mean instead of the CE making that decision, as is currently required in section 20, part 2—and she must—that it is going back to the front-line staff who are working on the case, as in the Chloe Valentine case, where they decided not to go ahead with the drug test? Are these the people who now will be making that same decision on whether a drug test goes ahead rather than the CE compulsorily having to?

The Hon. J.R. RAU: The answer to that is that the chief executive would be, for the purposes of the act, doing it, but it would be done by a delegation to the appropriate on-the-ground people. For example, elsewhere in this legislation we contemplate the notion of establishing these networks or hubs that would be placed around the city. It would be my expectation that the chief executive would have a delegate in that network or hub who would be their authorised eyes and ears in that place when these sorts of things come by so that they would be able to exercise that power on behalf of the chief executive. From a purely legal point of view, it is the chief executive's power, but the law does enable the chief executive to delegate that power to appropriate officers who are on the ground so that you can have that very short distance between the child and the decision-maker.

Ms SANDERSON: So, it would not necessarily be the caseworker. You would envisage it would be like the manager or supervisor of that CFARN or hub or whatever we are setting up, rather than just a front-line staffer, as in Chloe Valentine's case.

The Hon. J.R. RAU: Again, this is ultimately a decision for the chief executive, but my observation of delegations within government is that they are normally delegated to a managerial level. Unless they are very simple delegations, they are not normally delegated right down to the very bottom level. When I say 'bottom', I do not mean that in a pejorative way. I mean literally down to the coalface.

You would normally expect the front-line worker to have to check with somebody further up the pyramid to get the authorisation to do these things. We see examples of this all the time, for example, with police. The police can order all sorts of things, but the constable on the beat usually has to go to either a charge sergeant or a person of the rank of inspector or above before they can do whatever it is they want to do. My expectation is that is how the department would do this.

New clause inserted.

Clauses 32 and 33 passed.

Clause 34.

The CHAIR: Do you want to continue with your amendment No. 12 schedule (2) member for Adelaide, or have we exhausted all the permutations of the chief executive and minister? Do you want to continue to move that?

Ms SANDERSON: I believe that the Attorney-General's amendment No. 14 will cover the definition of 'home', and there is no need for the rest of mine.

The CHAIR: So, you are going to withdraw that one?


The Hon. J.R. RAU: I move:

Amendment No 14 [ChildProRef–2]—

Page 27, line 5 [clause 34(a)]—Delete 'home' and substitute:

to the custody of a parent or guardian, or delivered into the care of a person determined by the Chief Executive,

Amendment carried; clause as amended passed.

Clauses 35 to 39 passed.

The CHAIR: We are looking at your amendment No. 14, member for Adelaide, which you would like to move, inserting a new 39A; is that correct?

The Hon. J.R. RAU: I think this is rendered unnecessary by reason of an earlier amendment to clause 6 in our bundle, because we have already traversed this area.

Ms SANDERSON: I agree. I believe that 39A and 39B have been covered and the implementation sections are still to come.

The CHAIR: So, we are not going ahead with those two?

Ms SANDERSON: No, but I would like to seek advice about 39C because that is an action section that is not covered by the government's amendment.

The Hon. J.R. RAU: I am advised that we are doing this in clause 44, so we are picking this up.

The CHAIR: She is just getting that advice. If someone can tell the member for Adelaide that, that would be fair and good.

New clause 39C.

Ms SANDERSON: My advice is that whilst the upcoming government's amendments go a little bit further towards what I am trying to achieve, my clause (which would have to be renumbered, but we can do that between the houses) is really to give more powers to police officers so that they can seize a passport. It is actually actions—so that they can enter the premises; they can inspect premises, vehicles, vessels; they can use reasonable force; and they can take photos. It is quite similar, in fact, to the powers that were given in the Housing Improvement Bill, in case you think someone's fence or chimney might fall on you. I did debate against the point that that seemed a bit excessive, in that instance, when we leave children in danger.

However, my amendment was meant to give as much protection and power to the police and the people who can go in and protect a child from genital mutilation or forced child marriage. Let's give the police that power as soon as possible. My amendment goes a lot further than the government's amendment, so I would like to move the amendment in relation to new clause 39C:

Amendment No 16 [Sanderson–1]—

Page 29, after line 31—Insert:

39C—Police officer may seize passport etc.

(1) A child protection officer who is a police officer may, without a warrant, if the police officer believes on reasonable grounds that a child or young person is at risk of removal from the State for female genital mutilation or marriage, do 1 or more of the following:

(a) enter (including breaking into) and remain on any premises, place, vehicle or vessel (and for that purpose require a vehicle or vessel to stop);

(b) inspect any premises or place, vehicle or vessel;

(c) use reasonable force to break into or open any part of, or anything in or on, any premises, place, vehicle or vessel;

(d) take photographs, films, audio, video or other recordings;

(e) seize, using such force as may be reasonably necessary, any passport issued in the name of the child or young person;

(f) give such directions as may be reasonably required in connection with the exercise of a power conferred by a preceding paragraph.

(2) Subject to any order of the Court, a passport seized under this section—

(a) may be held by the Commissioner of Police for the period prescribed by the regulations; and

(b) must, at the end of the period, be dealt with in accordance with the regulations.

(3) A police officer may, in exercising powers under this section, be accompanied by such assistants as are reasonably required in the circumstances.

(4) A person must not, without reasonable excuse, refuse or fail to comply with a requirement or direction under this section.

Maximum penalty: Imprisonment for 1 year.

(5) To avoid doubt, this section does not limit any other powers conferred on a child protection officer or police officer by any other provision of this Act or any other Act.

The Hon. J.R. RAU: My tentative advice is that clause 139 of the bill basically does all this. I will oppose it now on the basis that we already have it, but I am happy to keep talking to the member for Adelaide; if it turns out that there is some material omission, I am happy to talk to her about it and we can sort it out between here and elsewhere.

New clause negatived.

Clause 40 passed.

Ms SANDERSON: Amendment Nos 17 to 21 are consequential.

Clauses 41 to 43 passed.

Clause 44.

The Hon. J.R. RAU: I move:

Amendment No 15 [ChildProRef–2]—

Page 32, after line 32 [clause 44(1)]—Insert:

(ca) in the case of a child or young person who is at risk of being removed from the State for a purpose referred to in section 15(1)(ba)—such orders as the Court thinks necessary or appropriate to prevent the child or young person from being so removed, including (without limiting the generality of this paragraph)—

(i) an order preventing a specified person from removing the child or young person from the State; or

(ii) an order requiring that the child or young person's passport be held by the Court for a period specified in the order or until further order.

That includes passport seizure and whatnot. It is one of the examples of where I think we probably have covered off what the member for Adelaide is on about, but we will check between the houses.

Amendment carried.

The CHAIR: Amendments Nos 22 to 24 [Sanderson-1] are therefore consequential.

Clause as amended passed.

Clauses 45 and 46 passed.

Clause 47.

The Hon. J.R. RAU: I move:

Amendment No 16 [ChildProRef–2]—

Page 34, after line 16—Insert:

(5) Subsection (4) does not apply to a child or young person to whom the order relates.

This is an amendment to protect children and young people who are subject to proceedings under this legislation from the possibility of criminal prosecution should they have been served personally with an order made under clause 47, for whatever reason, and failed to comply with it. It is not the government's intention to capture those children or young people, many of whom are obviously vulnerable. This amendment makes sure that that unintended possibility does not occur.

Amendment carried; clause as amended passed.

Clauses 48 and 49 passed.

Clause 50.

The Hon. J.R. RAU: I move:

Amendment No 17 [ChildProRef–2]—

Page 34, after line 25—Insert:

(a1) This section applies to proceedings on an application to the Court for orders relating to a child or young person who is, pursuant to an order of the Court, under the guardianship, or in the custody, of the Chief Executive or another person or persons.

Obviously the government has been meeting a number of groups in the last few weeks. The onus of proof has been one of the issues that has been the subject of some concern. In order to address those concerns, we are proposing an amendment to clause 50. At the moment, the way the bill reads actually reverses the onus of proof in all proceedings under the bill. The exception to this is the Crown and the child or young person to whom the proceedings relate.

This amendment seeks to draw a line in the sand by distinguishing between those proceedings where the child or young person has not yet been the subject of a custody or guardianship order and those where they have. In respect of those children who have not been the subject of a guardianship or custody order, the Crown will continue to bear the onus of proof. In other words, if the Crown determines it needs to take a child away from a family, then the Crown bears the onus of convincing the court that it is appropriate for that to happen.

In that circumstance, to be more particular, the parent, parents, guardians or whatever of that child are not placed in the position where the onus is against them. They are in a position where the Crown must prove to the satisfaction of the court that the child is at risk and that it is appropriate for the child to be taken away. That is the concession we are making, which is, I think, in all the circumstances a fair and reasonable point that is being brought to the government's attention. Frankly, our original intention was not to make it easier for the Crown to confront that particular court process, nor was it our intention to disenfranchise or unfairly disadvantage a parent or parents of a child.

Having said that, however, once such an order has been made, then the child is presumed to be at the centre of all future proceedings, and anyone seeking to upset the apple cart for the child bears the onus of proving that it is in the child's interest to do so. For example, a child is removed and placed in foster care. The onus of taking the child away in the first place is borne by the Crown, but once the child is placed in a stable foster care situation, if the birth parent or parents then seek to disturb that, we do not go back to even stevens and the onus, in effect, is on the child to prove they should not be disturbed.

We start from the proposition that the child has already been through a process where their parent or parents have been found to be so lacking in competence that the child has had to be removed to this foster arrangement. If we are going to disturb that foster arrangement, anybody wanting to disturb it better have a damn good reason for disturbing it. What we have seen in the past is quite a bit of churn where kids are taken away and then in the not too distant future a parent or parents bob up and say, 'We would like them back, please,' so then they are sent back.

Then there is another failure, and they are taken away again and put somewhere, and the parent bobs up again and says, 'I want them back,' and they go back. What we are saying, and commissioner Nyland was very clear on this, is that children deserve to be in a position where they have some stability and some opportunity to form an attachment in a particular stable environment. The idea of the children being constantly disrupted after having been removed is completely at odds with that.

The other point about it, too, is that we have been advised—and I firmly believe this to be true—that one of the things that is acting as a significant disincentive to foster parents coming forward at all, or if they do come forward being prepared to take more children, is the notion that at any moment in time there will be a knock on the door and somebody will say, 'We are here. You are back in court. That child might be removed from you,' and quite often the child is. The foster parent, who invests all that effort and all that commitment into that child, does so at the moment in the knowledge that at any moment in time that can be disrupted by somebody outside of that relationship just popping in and saying, 'Hello, I'm here. What about me?'

The government does not think, and the royal commission did not think, that was in the interests of the child. What is in the interests of the child is that they are as stable and settled as possible. What we have done here in relation to the onus is that we have acknowledged the initial decision to take the child away. Yes, the Crown bears the onus to prove that that is in the interests of the child, that it is necessary in order to protect the child. Fine, no problem.

Beyond that, if somebody wants to disturb whatever the settled arrangements are for that child with a foster carer, the onus is on the person seeking to disturb the stability of the child's environment to prove that it is better for the child that that happens, not that the child has to prove all over again that their new environment is where they should be. It is putting the child at the centre and it represents a modification of the original proposal, but I think it strikes the balance. So, the Crown bears the onus of the original removal, but thereafter the child's stability becomes the number one overarching concern.

It also puts foster parents in the game. At the moment, quite frankly, they are not. Foster parents are not really in a position of any influence for that matter. I have heard shocking stories of foster parents actually not even being permitted to be heard in relation to some of these attempts to remove the kids from foster environments. So, we are trying to stabilise that once the child, unfortunately, has to be taken away.

Ms SANDERSON: My reading and understanding of the royal commission recommendation was that the reversal of onus of proof was only in regard to the Other Person Guardianship. What made the government decide to take that further to include the removal stage? Even though you are saying now that you are getting rid of that, you have expanded the other side to have, in the instance of an Other Person Guardianship, which was one of the issues when the foster parents applied to be Other Person Guardians, that the birth parents would be contacted. They had the right of refusal and you had to prove why they were not suitable.

So, you have reversed that, which is in keeping with the royal commission but, firstly, I would like to know why you ever included it at the removal stage even though it was in a recommendation, and why you are now expanding it. I imagine the other things that could happen would be adoption, there are also other instances, not just Other Person Guardian, which was recommended. I would like to know why you are doing that.

The Hon. J.R. RAU: The original motivation for this was, and remains, that we have to put the child at the middle of the whole thing. Everything is about the child. My observation of the present system is that—and these are my words, not the royal commission's words—the present system is a bit schizophrenic. It is attempting to be all things to the birth parents, pays lip service to a whole bunch of other things, but ultimately it does not provide a completely central unequivocal focus on the child.

We started off from the basic premise—and commissioner Nyland embraces this in her report—that if a child has to be taken away, there are some things that are almost truisms about that. First, if they have to be taken away the sooner you take them away the better, because the longer you leave them there the more damaged they are going to be by being there. That is pretty harsh but it is the truth. If it is bad enough that you need to take them away, the sooner you bite the bullet and take them away, if it is that bad, the better. That is point No. 1.

Point No. 2 is that once you have taken them away and you have found a stable place for the child to be, it is overwhelmingly the evidence of the people who write learned things about this that in order for the child to grow up to be a well-adjusted individual, their having a sense of place, belonging, and a sense of being settled somewhere, a sense of attachment, is absolutely critical to that child's healthy development. Starting from those two simple propositions, we have said that we are going to examine everything that is a threat to those things in a way to say, 'Let's minimise the threat to that stability for that child.'

We accept, as result of the consultation, that the drafting in its original form meant that would have even gone to the original threshold question of whether the child should be taken away. Having reflected on the feedback and having listened to people, the government accepts that it is reasonable for the onus to remain as it is in that context, and we have amended it accordingly. However once you get past that point, every piece of advice I have seen, all the comments made by the royal commissioner, all suggest that we want children to be in a stable circumstance.

We want foster carers to feel confident that they are not going to have their relationship with these children disrupted, and the reversal of the onus is meant to underscore the point that once these children have been put into a placement—whether it is called Other Person Guardianship or whatever—it should not be lightly disturbed. That is the point.

Ms SANDERSON: From that, I gather that, although this bill was drafted in response to the royal commission, and the royal commissioner only recommended that the onus of proof be reversed in the case of Other Person Guardianship because there were issues around stalling and not many guardianship orders being made, the government decided to protect children by allowing them to be removed more quickly, by reversing the onus of proof. Just on that note —

The Hon. J.R. Rau: That is what we changed, though, the removing them. We have changed that. We have accepted that proposition.

Ms SANDERSON: But you decided to change it on your own; it was not a recommendation. When it went out to consultation, there were 62 submissions, including from the Law Society (this was a submission based on the draft bill), where this was included:

The Law Society is also strongly opposed to the onus of proof being placed on parents to show why children should not be removed from their home. 'Many families subject to application orders are severely disadvantaged,' Mr Rossi said. 'Forcing parents to bear the onus of proof will only exacerbate the stress and disadvantage. This will have a particularly devastating impact on Aboriginal families who are grossly overrepresented in the child protection system and would have to bear the extra burden of opposing departmental orders when they should in fact be receiving greater family and cultural support.'

'If the Department is seeking to remove a child from parents and it is opposed the Department should have to prove why the court should endorse its position.'

This was also opposed by the Aboriginal Legal Rights Movement, but I will not read all of that into Hansard. However, I will read into Hansard the number of applications lodged and how many were dismissed. I only have the figures up to 2013-14, but for the previous years, starting in 2011-12, the number of care and protection orders lodged was 384 with zero dismissed; in 2012-13, there were 397 with zero dismissed; in 2013-14, there were 338 with zero dismissed.

I am unsure what issue the government felt it had, given that all the orders it has applied for have actually been upheld. I am glad that you have reversed it, but I am unsure why you put it there in the first place. You then ignored the Law Society, the Aboriginal Legal Rights Movement and many other people who were against it in your final bill. It took not only your first draft but then your second lot of amendments to your amendments, because you withdrew your first amendments, before you actually listened to the people. I am glad that you finally have, but I wonder why it took so long.

The Hon. J.R. RAU: The first and the really happy point about this—let's start on the high note—is that we have listened. We have listened and we accept that they made a good point. The only thing I can say to you is that I think to some degree we were actually speaking at cross-purposes for some of this time. The Law Society's original proposition was, 'We are opposed to the reversal of onus, full stop.' I think it took a bit of time for us to tease out what they meant and for them to tease out what we meant.

It turns out that the Law Society was particularly opposed to the reversal of onus at the beginning, that is, on the initial decision to remove the child. Once we were clear that that is what they were on about and not the whole reversal of onus argument I was very sympathetic to their point of view and we have accepted it. However, the way their original proposition was crafted, they were opposed to the reversal of onus in general terms.

I want to make clear that we still are of the view that, once a child has been a removed and is in a settled position, that child should not subsequently be disturbed without very, very good reason. In the end, after discussing it with the Law Society, I understand what they were on about and I think they understand what I am on about. When I last spoke to them, I think we came to a position where we were on the same page about this. Anyway, it is my amendment, I am happy to do it and I am happy to accept that the consultation process has improved the bill in this respect.

Ms SANDERSON: While I will be accepting the amendment, I hope perhaps for future bills that, when you put a bill out for draft consultation, that would be the time to work out whether or not you are at cross-purposes with the Law Society and you make the final amendments so that the final bill is your best bill, not nearly there, then we get amendments, then a few weeks later we get some amendments to the amendments. It seems like a very poor way to write legislation.

The Hon. J.R. RAU: I could not agree more with the member for Adelaide.

The CHAIR: There is nothing more to say, is there?

The Hon. J.R. RAU: There is a bit because I want to say that, in the circumstance where one is trying to put legislation through and one puts out a comment and says, 'Look, can everybody please get back to me within three weeks, four weeks, five weeks or 10 weeks'—it does not matter what it is—there is something out there where, for whatever reason, people do not focus on it until week 10 or they spend a very long time mulling it over.

I am not a betting man, but I bet the member for Adelaide an orange juice that, whatever date you set as the date when we are going to put the bill in and finish it on this day, in every single case where you do that there will be not just one but a number who, for whatever reason, cannot meet that deadline. If they have come up with something really good, you are forced into the position of reconsidering your bill later on.

I am not saying everything we did was perfect, but I promise you that there are people who work on different time lines to the ones that we are trying to work on and, if they come in late with something or if they refine their position late, we are stuck with dealing with it as and when it comes in. In a perfect world, I could not agree more with the member for Adelaide. That is legislating at its best.

Ms SANDERSON: I absolutely agree that there will be cases. This was not one of those cases because this was clearly identified in the draft bill and clearly ignored in the final bill.

Amendment carried.

The Hon. J.R. RAU: I move:

Amendment No 18 [ChildProRef–2]—

Page 34, line 26 [clause 50(1)]—Delete 'under this Act' and substitute 'to which this section applies'

Amendment carried.

The Hon. J.R. RAU: I move:

Amendment No 19 [ChildProRef–2]—

Page 34, lines 29 and 30 [clause 50(2)]—Delete subclause (2) and substitute:

(2) However, subsection (1) does not apply where the person objecting to the making of the order is—

(a) the Crown; or

(b) if the Court is satisfied that the child or young person to whom the proceedings relate is not being unduly influenced by any person to object to the making of the order—the child or young person.

Amendment carried; clause as amended passed.

Clauses 51 to 53 passed.

Clause 54.

The Hon. J.R. RAU: I move:

Amendment No 20 [ChildProRef–2]—

Page 35, line 14 [clause 54(1)]—After 'must' insert:

, to the extent that it is consistent with the legal practitioner's duty to the court to do so,

Amendment carried.

The Hon. J.R. RAU: I move:

Amendment No 21 [ChildProRef–2]—

Page 35, lines 30 to 34 [clause 54(2)]—Delete subclause (2)

Ms SANDERSON: I would like an explanation why the amendment proposes to delete subclause (2). I am not sure what the intent is.

The Hon. J.R. RAU: I am advised that this amendment arises from further consultation with the Law Society in the last fortnight or thereabouts to ensure that legal practitioners acting in this capacity—that is, as a legal representative of a child or young person who might be the subject of an order—nevertheless maintain their ability to comply with the Legal Practitioners Act. We are trying to make it clear that this does not cut across their role as an officer of the court. They still have an obligation to discharge themselves as a legal professional person, consistent with their representation of the child. This is something they wanted and we are happy with it.

Amendment carried; clause as amended passed.

Clause 55.

The Hon. J.R. RAU: I move:

Amendment No 22 [ChildProRef–2]—

Page 36, after line 19—Insert:

(5) Subsection (4) does not apply to a child or young person to whom the interim order relates.

Amendment carried; clause as amended passed.

Clauses 56 to 61 passed.

Clause 62.


Amendment No 4 [Sanderson–2]—

Page 38, line 5 [clause 62, penalty provision]—Delete 'Imprisonment for 2 years' and substitute '$10,000'

Amendment carried; clause as amended passed.

Clause 63.


Amendment No 5 [Sanderson–2]—

Page 39, line 2 [clause 63(6), penalty provision]—

Delete 'Imprisonment for 12 months' and substitute '$10,000'

Amendment carried; clause as amended passed.

Clauses 64 and 65 passed.

Clause 66.


Amendment No 6 [Sanderson–2]—

Page 39, line 37 [clause 66(1), penalty provision]—Delete '$50,000' and substitute '$10,000'

Amendment carried; clause as amended passed.

Clauses 67 to 99 passed.

Clause 100.

The Hon. J.R. RAU: I move:

Amendment No 26 [ChildProRef–2]—

Page 56, lines 18 and 19 [clause 100(4)]—Delete subclause (4)

Ms SANDERSON: Can I have clarification on why that is being removed?

The Hon. J.R. RAU: This amendment seeks to amend clause 100, which sets out a complaint mechanism to the chief executive for either a child or young person being cared for in a facility, or a parent or guardian of such a child or young person. Specifically, this amendment seeks to delete:

However, the Chief Executive need not investigate a complaint that is, in the opinion of the Chief Executive, frivolous...

The consequence of this amendment is that there will be no ability for the chief executive not to investigate a complaint received. That is, every complaint received pursuant to clause 100 as amended will now be investigated by the chief executive. I think that is as a result of some feedback that we received, but it is a very circumscribed area.

Amendment carried; clause as amended passed.

Clause 101.

The Hon. J.R. RAU: I move:

Amendment No 27 [ChildProRef-2]—

Page 56, line 27 [clause 101(1)]—Delete 'at the request of a' and substitute 'in relation to each'

Ms SANDERSON: This seems to be grammatical. What is the substantial change of that amendment?

The Hon. J.R. RAU: Again, it is pretty technical. Clause 101 concerns the assistance to be provided by the chief executive to persons leaving care. Currently, clause 101(1) of the bill is drafted in a way that would require the child or young person who is lawfully leaving the care of the person whose guardianship or custody they have been placed under the act to request a transition plan. This amendment quite rightly ensures that no such request is required. They do not have to ask for a transition plan; it is part of what is expected of the chief executive, to provide them with a transition plan.

Ms SANDERSON: I think that is a very good idea.

Amendment carried; clause as amended passed.

Clauses 102 to 134 passed.

The CHAIR: Member for Adelaide, your amendment No. 59 in schedule (2) inserts new clause 134A. Are you still going ahead with that?

Ms SANDERSON: I believe that, whilst I still like the idea of this amendment, I am happy to consider it between the houses, as I believe it refers more to early intervention and prevention, which you may be putting in another bill. We will withdraw it at this stage.

Clauses 135 to 147 passed.

Clause 148.

The Hon. J.R. RAU: I move:

Amendment No 28 [ChildProRef–2]—

Page 81, line 33 [clause 147(4)]—Delete '14' and substitute '28'

This is just to change a period from 14 to 28 days. It gives a little bit more time.

Amendment carried; clause as amended passed.

Clauses 149 to 155 passed.

Clause 156.

The CHAIR: Deputy leader, your amendment is to clause 156, which is on page 85, lines 35 to 38. You are deleting subclause (1), if you get your way.

The Hon. J.R. RAU: So that the deputy leader does not get herself too consumed, I indicate that we are accepting this, so she cannot do better than a yes. If she says anything, she might go backwards from there, but at the moment she has a yes.

Ms CHAPMAN: I move:

Amendment No 1 [Chapman–1]—

Page 85, lines 35 to 38 [clause 156(1)]—Delete subclause (1)

It is necessary for me to thank the Chair for bringing to my attention my amendment, which has the effect she has outlined. I thank the government for indicating their agreement to it. I indicate that they need to be on clear notice that if they pull this sort of stunt again, trying to exempt themselves from liability in this way, it will continue to be exposed. It is the most disgraceful conduct that I have seen, especially dealing with children's care.

Amendment carried; clause as amended passed.

Clauses 157 to 162 passed.

Schedule 1.

The Hon. J.R. RAU: I move:

Amendment No 30 [ChildProRef–2]—

Page 88, lines 5 to 31—Delete Schedule 1 and substitute:

Schedule 1—Repeal of Children's Protection Act 1993

1—Repeal of Children's Protection Act 1993

The Children's Protection Act 1993 is repealed.

Very briefly, this is to do with matters of the intersection between the Family Law Act and this legislation. This is to do with the current referral of powers that restrict a jurisdiction to the Family Court where the child is the subject of orders. This amendment seeks to delete the amendment, and the government has determined that further consideration of this matter with the commonwealth will be separately pursued at a later date.

Ms SANDERSON: Are we not just repealing the old act to enable the new act? That is what it looks like.

The Hon. J.R. RAU: Yes.

Ms SANDERSON: Okay, that is fine.

Amendment carried.


Amendment No 61 [Sanderson–1]—

Page 88, after line 31—Insert:

Part 4—Amendment of Criminal Law Consolidation Act 1935

4—Amendment of section 5AA—Aggravated offences

Section 5AA(1)(e)(i)—after 'Part 3' insert:

Division 8A or

5—Insertion of Part 3 Division 8A

After Part 3 Division 8 insert:

Division 8A—Child marriage

34—Interpretation and application of Division

(1) In this Division—

child means a person under the age of 18 years.

(2) Nothing in this Division is intended to limit the operation of the Marriage Act 1961 of the Commonwealth.

34A—Bringing child into State for marriage

(1) A person must not bring a child into the State, or arrange for a child to be brought into the State, with the intention of causing the child to be married.

Maximum penalty:

(a) for a basic offence—imprisonment for 15 years;

(b) for an aggravated offence—imprisonment for 19 years.

(2) In proceedings for an offence against subsection (1), if it is proved that—

(a) the defendant brought a child, or arranged for a child to be brought, into the State; and

(b) the child, while in the State, went through the form or ceremony of marriage,

it will be presumed, in the absence of proof to the contrary, that the defendant brought the child, or arranged for the child to be brought, into the State (as the case may be) with the intention of causing the child to be married.

34B—Removing child from State for marriage

(1) A person must not take a child from the State, or arrange for a child to be taken from the State, with the intention of causing the child to be married.

Maximum penalty:

(a) for a basic offence—imprisonment for 15 years;

(b) for an aggravated offence—imprisonment for 19 years.

(2) In proceedings for an offence against subsection (1), if it is proved that—

(a) the defendant took a child, or arranged for a child to be taken, from the State; and

(b) the child, while outside the State, went through the form or ceremony of marriage,

it will be presumed, in the absence of proof to the contrary, that the defendant took the child, or arranged for the child to be taken, from the State (as the case may be) with the intention of causing the child to be married.

34C—Consent no defence

This Division applies irrespective of whether the child concerned, or a parent or guardian of the child, consents to the marriage.

The idea of this is to make it an offence to remove a child regarding child marriage. It is illegal to remove a child for the purpose of FGM, and whilst child marriage has been put in this bill as a risk and a harm, I believe it should also be a criminal act so that there are further powers.

The Hon. J.R. RAU: At this stage I am not convinced that this is necessary, but I am not fundamentally opposed to obviously dealing with this issue to the extent that it is going on, and it needs to be looked at. As a matter of formality, can I presently oppose this thing here, but indicate to the member for Adelaide that I am very happy to have a talk with her about this and the other matters that we undertook to speak about between here and somewhere else. It might be that we have an agreement about this.

Ms SANDERSON: I am happy to discuss it between the houses.

Amendment negatived; schedule as amended passed.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Industrial Relations, Minister for Child Protection Reform, Minister for the Public Sector, Minister for Consumer and Business Services, Minister for the City of Adelaide) (17:21): I move:

That this bill be now read a third time.

I would like to thank the member for Adelaide for the way in which she has dealt with this matter, and I commit again to having further discussions with her between here and elsewhere, if there are things that we can sort out. It is always good to work on legislative change in a way that is cooperative, to the point and not discursive and littered with other unnecessary artefacts. I am very grateful for the way in which the member for Adelaide has approached this.

Can I also thank all the officers who worked extensively on this: parliamentary counsel; legislative services in the Attorney-General's Department; Brett, who started this process as a very close adviser of mine and has since moved on to bigger and better things. I could not keep her no matter how much I tried. There is a story there, but I wish her well in her new endeavours and she has done a terrific job. I am just sorry, Brett, that we could not provide sufficient attractions to keep you where you were.

Can I say to all of you who have helped in this that you have done a terrific job. It has been a very big job, and I know it is not over yet. I know there is more to come, but this bit of it at least is over. I also wanted to thank Susan and her office because we have worked very closely with them and her department and with Cathy, the new chief executive. A lot of people have put a lot of time and effort into this, and I sincerely thank all of them.

I also thank all those people who took the trouble to make submissions. Hopefully, this process, although frustrating I know, demonstrates that we do actually pay attention. We may not have accepted every single proposition put forward, but hopefully people with goodwill will see that we have listened and that we have attempted to accommodate concerns where that has been possible. Thank you to all concerned, and I hope that when this bill finds its way into another place the people there are impressed with all the work that has gone on here today and will just say, 'If they like it, that's good enough for us.'

Bill read a third time and passed.