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Concern for Govt fast-track of Aboriginal Children’s Commissioner

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South Australia’s inaugural Commissioner for Aboriginal Children and Young People will start work on Monday despite there being no legislation that outlines her role.

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Education Minister John Gardner has confirmed to InDaily that the State Government has decided to hold off from progressing with legislation outlining the Commissioner’s role and has, instead, fast-tracked Lawrie’s appointment via a clause in the Constitution Act.

The move has angered the Law Society of SA, with president Tim Mellor criticising the Government for taking what he described as a “short cut” to establish the role.

In July, the Government released a draft amendment to the Children and Young People (Oversight and Advocacy Bodies) Act, outlining the proposed role of the Commissioner for Aboriginal Children and Young People.

That draft legislation, which was open for public consultation, stated that the Aboriginal Children’s Commissioner would be subject to the direction and control of the Commissioner for Children and Young People, but would remain “independent of direction or control by the Crown or any Minister or officer of the Crown”.

The role of the Aboriginal Children’s Commissioner, according to the draft legislation, would be to promote and advise on policies and procedures that “minimise the risk of harm and promote the health, safety and wellbeing off all Aboriginal children and young people, particularly in the areas of education, health, child protection and justice”.

But groups including the Law Society of SA, the Child Death and Serious Injury Review Committee and SNAICC –  the peak national body representing the interests of Aboriginal and Torres Strait Islander children – argued the draft legislation did not provide the Commissioner with sufficient legislative power to conduct inquiries or make policy recommendations. 

SNAICC’s submission argues that the legislation should be amended to ensure the Aboriginal Children’s Commissioner was on “equal footing” to the principal Children’s Commissioner.

The Law Society argues that the Commissioner’s power should also extend to promoting and advocating for the “rights and interests” of Aboriginal children and young people.

Gardner told InDaily today that the Government decided to appoint Lawrie under the Constitution Act, which he said “precluded the need to rush any legislation through”.

“The draft bill has not been scrapped – it has been the subject of targeted consultation which is now a matter for the Government’s consideration,” Gardner said.

“Ms Lawrie was an outstanding candidate for the position and has been granted a three-year term, which gives the Government a good amount of time to determine the most appropriate next steps in relation to potential legislation.

“The information garnered from consultation on the original proposed bill will form the basis for any future legislation, along with the fact that we will be able to observe how the Commissioner’s work is undertaken from December 3.”

But Tim Mellor from the Law Society said the functions of the Commissioner should be clearly delineated in legislation.

“This is a role created to address a crisis impacting the Aboriginal youth of South Australia,” he said. 

While the Society appreciates the pressing need for such a role, it ought to be established via the enactment of a Bill that specifically expresses the functions and responsibilities of the role or possibly amendment to the Act that establishes the Children’s Commissioner if for example, it is to be an adjunct to that that position.

“It is important that roles of such importance are underpinned by clearly defined, statutorily embedded powers and responsibilities.

“It’s important that no short cuts are taken in the establishment of such a position.”

Lawrie was announced as the inaugural Aboriginal Children’s Commissioner in October, following a request made by Aboriginal organisations in their submissions to the Nyland Royal Commission into South Australia’s child protection systems, where Aboriginal children remain grossly overrepresented.

A government media release announcing her appointment described her position as “developing policies and practices that will improve the safety and wellbeing of Aboriginal children and young people”.

It went on to state Lawrie’s “key areas of focus” would be health, education, child protection and justice outcomes.

Gardner said today that there was a “significant body of work” that the Government was eager for the Commissioner to get started on.

“We have enabled that work to begin on December 3 rather than waiting for the Parliament to debate and agree to the new legislation,” he said.

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