The Children and Young People (Safety) Bill was passed by the South Australian Parliament last Thursday in response to the recommendations of the Child Protection Systems Royal Commission, which concluded last year.
The Law Society of South Australia said that although the final version of the bill was an improvement on the original, it still failed to prioritise the best interests of children.
“In this regard [the bill] is fundamentally at odds with other legislation in this state and elsewhere, and could result in children being wrongly removed from their families,” the society said in a statement.
It acknowledged that the government took on board a number of recommendations from stakeholders and made significant changes to the original bill, including the mandatory assessment of child protection notifications and the removal of civil liability provisions that would have given immunity to the Crown, minister, chief executive and others.
However, the society voiced its disappointment that the Legislative Council kept the safety of the child, rather than the best interests of the child, as the paramount consideration of the bill.
Tony Rossi, president of the Law Society of South Australia, explained the implications of this distinction.
“The Law Society remains concerned that this new law will result in the removal of children from the family unit and Aboriginal children from their community where that is, in all the circumstances, not in the child’s best interest,” he said.
“In the absence of guidance as to how the legislation is to be applied in practice, it may result in the removal of children from a family unit where there is any risk of harm to a child, even if the alternative may be more damaging to the child. In this regard the law will not ensure the best outcomes for our children.”
Mr Rossi also highlighted the dilemma the bill has created for officers of the state’s Department of Child Protection.
“This new law will put departmental officers in a terrible position,” he said.
“If any safety issue is identified and the child is removed from the family, unnecessary and serious harm may be caused to the development of that child. On the other hand, if the child is not removed and harm is caused by a parent then the department will be subject to criticism of failing to have applied the paramount consideration of the safety of the child.
“There is no guidance in the bill as to the criteria to be considered by departmental officers in determining how to apply the new law.
“It remains unclear, for example, if a parent tests positive to an illicit substance, whether that will be considered sufficient to remove a child given the paramount consideration of safety. If that is to be the case, then the government will need to plan for a large increase [of] children in its care.”