South Australia to replace Child Protection Act: which jurisdiction will be next?

09 March 2017

In the final reporting year of the Royal Commission into Institutional Responses to Child Sexual Abuse (the Commission), South Australia (SA) has tabled a Bill to completely replace its current Child Protection legislation (the Child Protection Act 1993 (SA) (the Act) will be repealed) and potentially overhaul its system for child development and welfare.

The Bill in context

The Child and Young People (Safety Bill) 2017 (SA) (the Bill) was introduced in the South Australian Parliament on the 14th February, in its first sitting for the year.

The Bill's introduction comes less than a month after public consultation ended on draft legislation to replace the Act, forming part of the SA Government’s full review of its child protection system. This review was precipitated by the release of the Child Protection Systems Royal Commission Report ‘The life they deserve’, a South Australia-specific inquiry which made 260 recommendations on improving child protection in the State.

The Government's response was to create a new child protection framework instead of making minor fixes to a system with endemic structural problems.

Other responses by the Government include:

  • creating a stand-alone Department for Child Protection (the Department), which has replaced Families SA;
  • through the passage of the Children and Young People (Oversight and Advocacy Bodies) Act 2016 (SA), establishing a Commissioner for Children and Young People and improving upon other oversight institutions including the Guardian for Children and Young People; and
  • replacing its screening check system with working with children checks, under the Child Safety (Prohibited Persons) Act 2016 (SA) (yet to commence).

The Bill in summary

According to the Bill’s Second Reading Speech, the Government’s intention is to transform the child protection system and provide a scheme to ensure that the protection of children and young people dominates all other priorities.

While section 3 of the Act was amended late last year to introduce this object, section 7 of the Bill makes it clear that the new system would be completely designed around this intention. The duty to safeguard and promote the welfare of children and young people is made the responsibility of every person in SA and not just decision-makers or individuals with authority.

The key aspects of the Bill are as follows:

New and expanded operational principles for child protection

Under Part 3, there are uniform principles which must be applied in the exercise of powers and functions under the Bill, establishing a minimum standard for administration, operation and enforcement.

The principles of intervention require decisions to be taken in a timely manner, while taking account of the child’s own views, their culture, disability, language and religion and also the potential for arrangements to be made through a 'family group conference'.

The placement principles require children subject to removal powers to be placed in safe, nurturing, stable and secure environments, preferably with persons with whom they have an existing relationship.

Subject to the placement principles, the Aboriginal and Torres Strait Islander Child Placement Principle has been carried across from the Children’s Protection Regulations 2010, advocating for placement which prioritises the child’s connection with family and culture.

New and expanded delegated authority

While ultimate responsibility for the Act remains with the Minister, the Bill delegates significant aspects of the Minister’s functions to the Chief Executive of the Department.

The Chief Executive previously had general functions to develop codes of conduct, standards of care, principles of good practice and guidance on child protection. In addition, the Chief Executive is now vested with the guardianship of children and young people, a role previously undertaken by the Minister.

The removal responsibility of police officers and authorised Departmental employees is now vested in the newly created role of ‘child protection officers’. This officer may remove a child or young person from any location using such force as is reasonably necessary and also has the power to inspect a licensed children’s residential facility. For the purposes of the Bill, the Chief Executive is considered to be a child protection officer.

Key aspects of Act are reinstated

The following parts of the Act will be carried across to the new legislation, indicating that they remain central to the Government’s approach to child protection:

  • The Guardian must draft and review a Charter of Rights for Children and Young People in Care, involving consultation with interested persons to achieve as wide a view as possible;
  • Family care meetings have been carried across as family group conferences, though they appear more discretionary to take into account the shifting objects of the legislation. These have also been supplemented by Child and Family Assessment and Referral Networks established by the Minister;
  • Prescribed organisations which provide care for children must have policies and procedures which are designed to provide a child-safe environment; and
  • Child protection proceedings and orders may be transferred between jurisdictions;

Implications for schools

If the Bill becomes law without significant change, then its overhaul of SA's child protection system presents two key challenges for schools seeking to remain legally compliant.

1. Increased staff reporting obligations

Under section 11 of the Act, an employee or volunteer of a school must notify the Department if they suspect on reasonable grounds that a child has been or is being abused or neglected and forms that suspicion during the course of their work or duties.

However, the Bill introduces an extended obligation to report any suspicion on reasonable grounds that a child or young person is or may be at risk, formed during the course of their employment.

The definition of ‘at risk’ has also been significantly expanded from under the Act, extending beyond abuse, neglect and serious harm. A child will be taken to be at risk if they have, or likely will, suffer harm.

While ‘harm’ is undefined under the Act, the new Bill introduces a meaning which extends to all physical and psychological harm, which includes, but is not limited to, such harm caused by sexual, physical, mental or emotional abuse or neglect.

While the Bill preserves the Act’s defences to reporting breaches as discretions, the Bill makes it clear that compliance with reporting requirements does not necessarily exhaust a duty of care. This means that a school may still breach care obligations to children even if mandatory reporting procedures are implemented. Schools should hence have robust policies and procedures in place for both preventing and responding to child harm.

2. Increased children protection policy and procedure requirements

Under section 8C of the Act a school, as a prescribed organisation, must have in place policies and procedures for ensuring that appropriate reports of abuse or neglect are made and that child safe environments are established and maintained. Within 10 days of putting in place policies and procedures, the Chief Executive must be given a statement which includes these policies and procedures.

While the Bill reinstates this policy requirement, and highlights the potential for further obligations to be created under regulations, it also requires prescribed organisations to provide a certification statement to the Chief Executive if their policies/procedures are varied or substituted. It also seems that a copy of policies and procedures must also be produced for inspection at the request of any student at the school.

Criticism of the Bill

There has been significant political and media criticism of the Bill since its introduction, including a lack of political and public consultation.

On the 22nd of February, a joint media conference was held by the Law Society, Australian Medical Association and South Australian Council of Social Services, in which it was suggested that there were a number of failures to effectively implement the Nyland Royal Commission's recommendations, including:

  • vesting discretion in the Chief Executive rather than actions being mandated;
  • removing civil liability in relation to acts/omissions under the Act;
  • failing to include measures in relation to early intervention and prevention of harm to at-risk children; and
  • failing to reflect the cultural needs of Aboriginal and Torres Strait Islander children.

Debate on the Bill has been postponed until the 27th of March as the Government continues consultation with the SA Alliance for Children and Young People’s Wellbeing and other stakeholders, on the Bill's major areas of concern.

The Bill’s broader implications

While the Bill will only directly impact schools in SA and may be redrafted from its current form in response to the criticism, it provides an indication of how jurisdictions may respond in the coming months as they attempt to implement the recommendations of the Commission.

Schools need to be alert to any potential shift in their care obligations, which if the context of this Bill is anything to go by, could occur with very little notice.

Kieran Seed

Kieran is a Legal Research Coordinator at CompliSpace. In his position, Kieran assists with drafting and review of governance, risk and compliance content programs and client-requested policies, while also writing regular articles for School Governance. Kieran’s key focus areas are student duty of care and school registration. Kieran studied at the University of Sydney, completing a Bachelor of Law and Bachelor of International and Global Studies majoring in Government and International Relations.