South Australia Establishes New Commissioner for Children and Young People

03 November 2016

On 19 October 2016, the South Australian Parliament passed the Children and Young People (Oversight and Advocacy Bodies) Bill 2016 (the Bill) to establish new statutory bodies to inquire into allegations of child abuse and oversee the rights and welfare of children. The proposed bodies are introduced in response to the Child Protection Systems Royal Commission Report (Report) released by the South Australian Child Abuse Royal Commission. As we previously reported on School Governance, the South Australian Government has committed to implementing the mammoth 260 recommendations released in the Report through legislative reform.

The Bill will take effect on a day that is to be determined.

The Commissioner

The Bill establishes the Commissioner for Children and Young People (the Commissioner). Under the Bill children and young people are persons aged under 18 years.

As recommended by Royal Commissioner Margaret Nyland, the Commissioner and its office will be independent from ministerial direction, and will operate cooperatively with the existing Child Death and Serious Injury Review Committee (the Committee), the newly established Guardian for Children and Young People (the Guardian), and the Child Development Council (the Council). The Bill sets out eight key functions of the Commissioner including:

  • to promote and advocate for the rights and interests of all children and young people in South Australia;
  • to promote the participation of children and young people in the making of decisions that affect their lives; and
  • to advise, and make recommendations to, Ministers, State authorities and other bodies (including non-Government bodies) on matters related to the rights, development and well-being of children and young people at a systemic level.

Of key importance is the power of the Commissioner to inquire into matters affecting children and young people at a systemic level. Section 12 of the Bill gives the Commissioner the power to conduct an inquiry into  the policies, practices and procedures of a State authority or authorities as they relate to the rights, development and wellbeing of children and young people generally or a particular group of children and young people.

The definition of a 'State Authority' excludes non-government schools so they are not directly within the scope of the Commissioner's inquiry powers. However, government schools and the Department for Education and Child Development will be affected by the new laws, which may indirectly have some impact on non-government schools .

No Aboriginal and Torres Strait Islander Co-commissioner

Despite lobbying by Aboriginal and non-Aboriginal organisations, the establishment of an Aboriginal and Torres Strait Islander Co-commissioner was unsuccessful.

The Guardian and the Council

South Australia already has a Guardian for Children and Young People but the Bill ensures that the Guardian is an office which is also independent of direction or control by the South Australian Government.  There are seven key functions of the Guardian, which essentially relate to the oversight and protection of the best interests of children under the guardianship, or in the custody, of the Minister, and in particular those in alternative care. Interestingly, the definition of alternative care includes "care provided for a child on a residential basis by a non-government agency" so the Guardian's powers are not limited to the government sector.

The Bill also creates the Child Development Council. The Council is responsible for the preparation and implementation of  a new Outcomes Framework for Children and Young People which aims to ensure better protection of the rights and well-being of children.

Following other States and Territories

The introduction of the Commissioner in South Australia follows the existence of similar offices in other States and Territories.  Earlier in August, School Governance reported on the ACT Government’s creation of a new reportable conduct scheme for schools.  As part of that new scheme, the ACT Ombudsman will be empowered with child protection oversight duties.  The ACT scheme is based on the NSW reportable conduct scheme, which is overseen by the NSW Ombudsman.

Similarly, the Victorian Government has also initiated reform to overhaul its lapses in the handling of systemic child abuse. In addition to the Child Safe Standards, the Department of Health and Human Services has announced that a reportable conduct scheme will be introduced from 1 July 2017. In Victoria, the Ombudsman will not form part of the reportable conduct scheme. Instead, the Commission for Children and Young People (the Commission) will take on this responsibility.

Other states and territories have combinations of similar offices including Guardians and Commissioners for young people. There is also a national Children’s Commissioner. Each of these roles is slightly different and depends on the legislation of each jurisdiction.

The introduction of the new SA Commissioner is the latest attempt by state and territory parliaments to improve government efforts to protect children and young people.

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