Children and Young People (Safety) Act 2017

This Act may be cited as the Children and Young People (Safety) Act 2017.

This Act binds the Crown in right of this jurisdiction and, in so far as the legislative power of the Parliament permits, the Crown in all its other capacities.

The Crown is liable for an offence against this Act.

If the Crown is guilty of an offence against this Act, the penalty that may be imposed on the Crown is the penalty that may be imposed on a body corporate.

The Parliament of South Australia recognises and acknowledges that—

children and young people are valued citizens of the State; and

the future of the State is inextricably bound to the wellbeing of all its children and young people; and

it is of vital importance to the State, and all of its citizens, that all children and young people are given the opportunity to thrive.

The Parliament of South Australia recognises that, as a State, we want each child and young person to benefit from (at least) the following outcomes:

to be safe from harm;

to do well at all levels of learning and to have skills for life;

to enjoy a healthy lifestyle;

to be active citizens who have a voice and influence, and the Parliament of South Australia accordingly commits to promoting these outcomes.

The Parliament of South Australia acknowledges that outcomes for Aboriginal and Torres Strait Islander children and young people in care have historically been poor, and that it is unacceptable for outcomes for those children and young people to be any different to those for children and young people in care generally.

It is the intention of the Parliament of South Australia that the performance of functions in the administration and operation of this Act be done in collaboration with, and with the cooperation of, children and young people and their families rather than simply being done to or for them.

The Parliament of South Australia recognises that—

it is the duty of every person in the State to safeguard and promote the outcomes set out in section 4(2); and

the provisions of this Act, and compliance with its provisions, form only a small part of the way in which the State, the agencies of the State, the Commonwealth and every citizen of the State discharge that duty.

This Act is to work in conjunction with all of the laws of the State, and, in particular, the Child Safety (Prohibited Persons) Act 2016 and the Children and Young People (Oversight and Advocacy Bodies) Act 2016, to further and achieve the aims set out in this Chapter.

This Act is in addition to, and does not derogate from, any other Act or law.

The paramount consideration in the administration, operation and enforcement of this Act must always be to ensure that children and young people are protected from harm.

In addition to the paramount consideration set out in section 7, and without derogating from that section, the following needs of children and young people are also to be considered in the administration, operation and enforcement of this Act:

the need to be heard and have their views considered;

the need for love and attachment;

the need for self-esteem;

the need to achieve their full potential.

To avoid doubt, the requirement under this section applies to the Court.

Without derogating from any other provision of this Act, it is desirable that the connection of children and young people with their biological family be maintained.

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.

The principles of intervention are as follows:

decisions and actions (if any) under this Act should be taken in a timely manner (and, in particular, should be made as early as possible in the case of young children in order to promote permanence and stability);

if a child or young person is able to form their own views on a matter concerning their care, the child or young person should be given an opportunity to express those views freely and those views are to be given due weight in the operation of this Act in accordance with the developmental capacity of the child or young person and the circumstances;

account should be taken of the culture, disability, language and religion of children or young people and, if relevant, those in whose care children and young people are placed;

in each case, consideration should be given to making arrangements for the care of a child or young person by way of a family group conference if possible and appropriate.

Each person or body engaged in the administration, operation or enforcement of this Act must exercise their powers and perform their functions so as to give effect to the principles of intervention.

However, this section and the principles of intervention do not displace, and cannot be used to justify the displacement of, section 7.

To avoid doubt, the requirement under this section applies to the Court.

The placement principles are as follows:

all children and young people who have been removed from the care of a person under this Act should be placed in a safe, nurturing, stable and secure environment;

the preferred option in relation to such placement of a child or young person is to place the child or young person with a person with whom they have an existing relationship;

approved carers are entitled to be, and should be, involved in decision-making relating to children and young people in their care.

Each person or body engaged in the administration, operation or enforcement of this Act must exercise their powers and perform their functions so as to give effect to the placement principles.

However, this section and the placement principles do not displace, and cannot be used to justify the displacement of, section 7.

To avoid doubt, the requirement under this section applies to the Court.

Subject to the placement principles, the objects and principles set out in this section apply to the placement of Aboriginal and Torres Strait Islander children and young people under this Act.

The objects of this section include—

maintaining the connection of Aboriginal and Torres Strait Islander children and young people with their family and culture; and

enabling Aboriginal and Torres Strait Islander people to participate in the care and protection of their children and young people; and

achieving the objects set out in the preceding paragraphs (as well as reducing the incidence of the removal of Aboriginal and Torres Strait Islander children and young people) by encouraging Aboriginal and Torres Strait Islander people, their children and young people and State authorities to act in partnership when making decisions about the placement of Aboriginal and Torres Strait Islander children and young people under this Act.

The Aboriginal and Torres Strait Islander Child Placement Principle is as follows:

if an Aboriginal or Torres Strait Islander child or young person is to be placed in care under this Act, the child or young person should, if reasonably practicable, be placed with 1 of the following persons (in order of priority):

a member of the child or young person's family;

a member of the child or young person's community who has a relationship of responsibility for the child or young person;

a member of the child or young person's community;

a person of Aboriginal or Torres Strait Islander cultural background (as the case requires), (determined in accordance with Aboriginal or Torres Strait Islander traditional practice or custom);

if an Aboriginal or Torres Strait Islander child or young person is unable to be placed with a person referred to in paragraph (a), or it is not in the best interests of the child or young person to do so, the child or young person should be given the opportunity for continuing contact with their family, community or communities and culture (determined in accordance with Aboriginal or Torres Strait Islander traditional practice or custom);

before placing an Aboriginal or Torres Strait Islander child or young person under this Act, the Chief Executive or the Court (as the case requires) must, where reasonably practicable, consult with, and have regard to any submissions of, a recognised Aboriginal or Torres Strait Islander organisation.

This section and the Aboriginal and Torres Strait Islander Child Placement Principle do not displace, and cannot be used to justify the displacement of, section 7.

The Minister may, by notice in the Gazette, after consulting with the relevant community or a section of the relevant community, vary or revoke a declaration relating to a recognised Aboriginal or Torres Strait Islander organisation.

The regulations may make further provision in relation to the placement of Aboriginal children and Torres Strait Islander children under this Act.

To avoid doubt, the requirements under this section apply to the Court.

In this section—

recognised Aboriginal or Torres Strait Islander organisation means—

in relation to the placement of an Aboriginal child or young person—an organisation that the Minister, after consulting with the Aboriginal community or a section of the Aboriginal community, declares by notice in the Gazette to be a recognised Aboriginal organisation for the purposes of this section; or

in relation to the placement of a Torres Strait Islander child or young person—an organisation that the Minister, after consulting with the Torres Strait Islander community or a section of the Torres Strait Islander community, declares by notice in the Gazette to be a recognised Torres Strait Islander organisation for the purposes of this section.

The Guardian for Children and Young People must prepare and maintain a Charter of Rights for Children and Young People in Care.

The Guardian for Children and Young People—

may vary the Charter at any time; and

must review the Charter at least every 5 years.

In preparing, varying or reviewing the Charter, the Guardian for Children and Young People must invite submissions from, and consult with, to such extent as may be reasonable, interested persons (including persons who are, or have been, under the guardianship, or in the custody, of the Minister or the Chief Executive) with a view to obtaining a wide range of views in relation to the matters under consideration.

The Guardian for Children and Young People must submit the Charter or variation to the Minister for approval.

The Minister may—

approve the Charter or variation; or

require an alteration to the Charter or variation, after consultation with the Guardian for Children and Young People, and then approve the Charter or variation as altered.

The Charter, and any variation, has effect from the day on which it is approved by the Minister.

The Minister must cause the Charter to be published on a website determined by the Minister.

The Minister must, within 6 sitting days after approving the Charter or variation, cause a copy of the Charter, or the Charter as varied, (as the case requires) to be laid before both Houses of Parliament.

Each person or body engaged in the administration, operation or enforcement of a relevant law must, to the extent that it is consistent with section 7 to do so in a particular case, exercise their powers and perform their functions so as to give effect to the Charter.

However, the Charter does not create legally enforceable rights or entitlements.

To avoid doubt, the requirements under this section apply to the Court.

For the purposes of this section, a reference to a variation of the Charter will be taken to include a reference to the substitution of the Charter.

In this section—

relevant law means—

this Act; and

the Family and Community Services Act 1972; and

any Act relating to the detention of a youth in a training centre; and

any other Act declared by the regulations to be included in the ambit of this definition.