South Australia is the only mainland Australian state without a Children’s Commissioner. And South Australia is the state which, arguably like none other, has grappled with the many and difficult challenges of child protection.

We have failed, in many instances, the expectations of the people of our state and the families of those affected. Is it coincidence, or would a Children’s Commissioner have made a difference?

The Premier recently questioned the motives of Opposition Leader Steven Marshall and independent Senator Nick Xenophon when they stood with Belinda Valentine, the grandmother of the late Chloe Valentine, accusing them of politicising the issue of child protection.

What they were calling for was the establishment of the office of Children’s Commissioner, an office that must be created by an Act of State Parliament. Whether calling for the establishment of that office is politicising the important question of child protection is in the eye of the beholder, but many would say it was an entirely legitimate public statement against the Mexican standoff this issue has caused over many years.

As early as 2003, Dr Robyn Layton produced a report for the government about child protection which recommended the establishment of a Children’s Commissioner. Twelve years later and our state parliament has failed to implement this recommendation.

In the intervening time we have heard horrific stories of physical and sexual abuse meted out to children over many decades, including disturbing evidence presented to the national royal commission into institutional child abuse. In our state we have learned all too well of the inadequacies and failures of Families SA, particularly as the Coroner heard weeks of evidence in the deeply disturbing matter of the death of child Chloe Valentine. Sadly, it was not the first time that the competency of that agency has been called into question.

Through it all, state parliament has either failed to act or been deadlocked over what the office of Children’s Commissioner should look like. The Liberal Opposition and crossbenchers acted first and introduced a bill which provided for the establishment of a Children’s Commissioner with investigatory powers and proper independence from the Parliamentary and executive government.

The objection from the Government seems to boil down to the likely cost of this proposal. It also points out that the Layton report did not advocate for a Children’s Commissioner with investigatory powers and says we should all await the outcome of the latest of its inquiries, the Royal Commission into Child Protection Systems being conducted by retired Supreme Court judge Margaret Nyland.

Nyland is highly respected by both the legal profession and the community at large and her report will no doubt add much to our understanding of the challenges in this vexed area. That said, just how long need we wait for action?

It is high time that the government used its political capital to pass what it knows is required and to be responsible enough to compromise on the model of Children’s Commissioner for the sake of not only our children but every constituent in South Australia.

The Government’s position is weakened by its own response. Stung into action, it too introduced a bill to parliament and promised to the electorate before the last state election that South Australia would finally have its Children’s Commissioner. Its model is plainly different to that of the Liberals and crossbenchers. The proposed position lacks proper independence and has no investigatory power. In many respects it is reminiscent of our Victims of Crimes Commissioner who has limited power and is beholden to government. Given that it is the state of South Australia and the government of the day that a Children’s Commissioner may have to criticise, true independence would seem of paramount importance. The Government’s model would create a toothless tiger, easily ignored and sidelined.

But what of the cost? The former Minister for Education and Child Development, Jennifer Rankine, pointed out that Queensland’s Children’s Commissioner costs that state more than $40 million per annum, money that South Australia really does not have. On the other hand, aren’t children our greatest priority? They are the innocents of our society and they are powerless. A society ought to be judged by how it treats its weakest members. Surely a spend in the order discussed is warranted given our appalling track record in this area? Surely it is money better spent to attempt to prevent harm occurring, or detect it early, rather than spending it on a coronial inquiry into the death of a child however necessary that may ultimately prove to be?

The area of child protection is vexed and difficult. The very nature of determining when the state ought to intervene in family life is bound to be divisive. The Coroner, however, in his recent recommendations in the Chloe Valentine inquest plainly thinks the state has currently got the balance wrong. In this case, there’s all the more reason to think that a Children’s Commissioner is necessary and that the office, once established, ought to be as influential as possible. In my book, this means introducing the model advanced by the Liberal Opposition, crossbenchers and Senator Xenophon.

I also think the parliament should act now. It is highly unsatisfactory that two bills both seeking to establish the office of Children’s Commissioner should be sitting idle, each one defeated, when it is implicit by their very introduction into parliament that the office is required.

With the greatest respect to the Premier, the problem is that politics is getting in the way of good public policy. It is high time that the government used its political capital to pass what it knows is required and make a responsible compromise on the model of Children’s Commissioner for the sake of not only our children but every South Australian.

We should not be the only mainland state without a Children’s Commissioner particularly given our wretched recent history in the area of child protection. Leadership is called for and there should be no more delay.

Morry Bailes is managing partner at Tindall Gask Bentley Lawyers, Member of the Executive of the Law Council of Australia and immediate past President of the Law Society of SA. The opinions expressed in this column are his own.

His column appears every second Thursday.

Disclosure: Morry Bailes is a member of the Liberal Party.