New Child Safety and Protection Bills in SA in Response to Nyland Report

In response to the Nyland Report on Child Protection, the SA Government has released two new Bills (now in Legislative Council debate) establishing a new Commissioner for Children and Young People and also developing a new working with children safety scheme.

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

According to the Attorney-General of SA, the Children and Young People (Oversight and Advocacy Bodies) Bill 2016 (The Advocacy Bill) establishes the Commissioner for Children and Young People; continues the Guardian for Children and Young People, the Child Death and Serious Injury Review Committee and the Youth Advisory Committee; and establishes the child development council.

The Advocacy bill forms part of the legislative reforms required to implement recommendations made by the Child Protection Systems Royal Commission published report, which was published in August 2016 (the Nyland Report). The measures in the advocacy bill give effect to the royal commission's report recommendations 245 to 248 and 250 to 253.

Child Safety (Prohibited Persons) Bill 2016

According to the Attorney-General for SA, the Nyland report suggested that problems with child protection systems are not unique to South Australia. It reaffirmed the necessity to recalibrate the SA system and intervene earlier in families, to place the child at the centre of all considerations and to stop them reaching our statutory agency.

The Child Safety (Prohibited Persons) Bill 2016 (The Safety Bill) implements a new regime of working with children checks for South Australia. The Safety Bill aims to minimise the risk to children posed by people who work or volunteer with them. In order to achieve this aim, the safety bill provides a framework for the prohibition of persons who pose an unacceptable risk to children from working or volunteering with children.

Under the safety bill, persons wanting to work or volunteer with children are required to undertake a working with children check every five years. This check is undertaken by a central assessment unit and a person can be prohibited from working with children or volunteering with children. The safety bill specifically provides that the paramount consideration in respect of the administration, operation and enforcement of this new regime is the best interests of children, having regard to their safety and protection.

The safety bill also adopts a number of recommendations of the Nyland Report as well as recommendations made by the Commonwealth Royal Commission into Institutional Responses to Child Sexual Abuse as set out in its final recommendations on working with children checks. The safety bill represents the adoption of recommendations 238(a) to (c) of the SA royal commission, being that a stand-alone legislative instrument is enacted to regulate the screening of individuals engaged in child-related work, which:

• declares that the paramount consideration in screening assessment must be the best interests of children, having regard to their safety and protection;
• invests powers in only one authorised government screening unit which is charged with maintaining a public register of all clearances and their expiration dates; and
• empowers the screening authority to take into account in its assessments criminal offence and child protection history, professional misconduct or disciplinary proceedings, and deregistration as a foster parent or other type of carer under the Family and Community Services Act 1972 (SA).

Reaction from Law Society of SA

According to Lawyers Weekly, the Law Society of SA has addressed the Advocacy Bill, and while the Law Society supports the inclusion of a children’s commissioner in the bill, it contends that the commissioner should be empowered to investigate individual complaints that may highlight systemic issues. Rather, is supports the ability of the commissioner or guardian to help children navigate the adult-centric offices of the Ombudsman and Health and Community Services Complaints Commissioner (HCSCC).

Both Bills are currently in the Legislative Council in second reading debate.

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Child Safety (Prohibited Persons) Bill 2016 (150 of 2016) [SA] and secondary materials as reproduced on TimeBase LawOne

Children and Young People (Oversight and Advocacy Bodies) Bill 2016 (149 of 2016) [SA] as reproduced on TimeBase LawOne

Lawyers Weekly Article