Part 4Additional provisions relating to Aboriginal and Torres Strait Islander children and young people

Part 4—Additional provisions relating to Aboriginal and Torres Strait Islander children and young people 43—Primary purpose of Part The primary purpose of this Part is to ensure that the Aboriginal and Torres Strait Islander Child Placement Principle is implemented throughout all stages of the administration, operation and enforcement of this Act to the standard of active efforts. 44—Objects of Act relating to Aboriginal and Torres Strait Islander children and young people The Act has the following objects in respect of Aboriginal and Torres Strait Islander children and young people: (a) recognising that nurturing strong connections to family, community, culture and Country is foundational in ensuring that Aboriginal and Torres Strait Islander children and young people thrive and are protected from harm; (b) recognising, respecting and supporting the self‑determination of Aboriginal and Torres Strait Islander children and young people and their families; (c) recognising, respecting and supporting the primary role of Aboriginal and Torres Strait Islander families and communities in protecting and caring for their children and young people; (d) upholding the cultural rights of Aboriginal and Torres Strait Islander children and young people in decision making under this Act; (e) ensuring that decision makers under this Act understand, respect and support Aboriginal and Torres Strait Islander culture, cultural diversity, lore, knowledge, perspective and expertise; (f) recognising the unique role of Aboriginal and Torres Strait Islander organisations in responding to and supporting Aboriginal and Torres Strait Islander families; (g) recognising and overcoming biases and racism that create barriers to the best interests of Aboriginal and Torres Strait Islander children and young people being realised; (h) reducing the over‑representation and incidence of removal of Aboriginal and Torres Strait Islander children and young people from their families by— (i) supporting Aboriginal and Torres Strait Islander people to access services provided by Aboriginal and Torres Strait Islander organisations; and (ii) facilitating delegated decision making by recognised Aboriginal and Torres Strait Islander entities in relation to Aboriginal and Torres Strait Islander children and young people; and (iii) encouraging State authorities to act in partnership with Aboriginal and Torres Strait Islander people and organisations when performing functions under this Act that affect Aboriginal and Torres Strait Islander children and young people. 45—Application of Part (1) Except where the contrary intention appears, this Part is in addition to, and does not derogate from, any other provisions of this Act. (2) For the purposes of this Act, the following provisions apply in relation to the operation of Part 2 as it relates to Aboriginal and Torres Strait Islander children and young people: (a) the Aboriginal and Torres Strait Islander Child Placement Principle will, in the event of an inconsistency with the guiding principles and related matters set out in Part 2, prevail; (b) except as is contemplated by paragraph (a), the additional guiding principles set out in Division 3 of this Part are to be read in conjunction with, and will be taken to form part of, the guiding principles and related matters set out in Part 2. 46—Right to cultural support in certain proceedings and meetings (1) The Governor may, by regulation, establish a scheme providing for cultural support to be provided to Aboriginal or Torres Strait Islander children and young people for the purposes set out in the regulations. (2) Without limiting the generality of subsection (1), the regulations may provide for— (a) the appointment of cultural support persons (including by limiting who can be a cultural support person); and (b) the right of a cultural support person to be present at specified proceedings or other interactions under this Act. (3) This section is in addition to, and does not derogate from, any other provision of this Act. Division 2—Identifying Aboriginal and Torres Strait Islander children and young people 47—Identifying Aboriginal and Torres Strait Islander children and young people Each person or body performing functions under this Act, must, as soon as is reasonably practicable after a child or young person comes into contact with the child protection and family support system, make active efforts to ascertain whether the child or young person is an Aboriginal or Torres Strait Islander child or young person. 48—Presumption as to acceptance by Aboriginal or Torres Strait Islander community For the purposes of this Act, if a child or young person— (a) is of Aboriginal or Torres Strait Islander descent; and (b) regards themselves as Aboriginal or Torres Strait Islander, or is regarded as Aboriginal or Torres Strait Islander by a member of their family, then the child or young person will, in the absence of evidence to the contrary, be taken to be accepted as Aboriginal or Torres Strait Islander (as the case requires) by the Aboriginal or Torres Strait Islander community to which the child or young person or the member of their family claims to belong. Division 3—Additional guiding principles in respect of Aboriginal and Torres Strait Islander children and young people 49—Aboriginal and Torres Strait Islander Child Placement Principle (1) The Parliament of South Australia recognises that the implementation of the Aboriginal and Torres Strait Islander Child Placement Principle to the standard of active efforts is the key mechanism by which the best interests of Aboriginal and Torres Strait Islander children and young people, and their families, can be realised. (2) The following elements collectively constitute the Aboriginal and Torres Strait Islander Child Placement Principle: (a) the prevention element—Aboriginal and Torres Strait Islander children and young people have the right to be brought up within their own family and community, and should, to ensure that families can stay together safely, be provided access to culturally safe services that support families and communities to care for Aboriginal and Torres Strait Islander children and young people; (b) the partnership element—Aboriginal and Torres Strait Islander people should be supported to participate in— (i) decisions under this Act affecting Aboriginal and Torres Strait Islander children and young people; and (ii) policy development, service design and service provision in relation to services provided to, or in relation to, Aboriginal or Torres Strait Islander children and young people under this Act; (c) the placement element—if an Aboriginal or Torres Strait Islander child or young person is to be placed with a person under this Act, the child or young person should, as a priority and so far as it is reasonably practicable to do so, be placed with 1 of the following persons (in order of priority): (i) an Aboriginal or Torres Strait Islander member of the child or young person's family, or other member of the child or young person's family; (ii) an Aboriginal or Torres Strait Islander member of the child or young person's community who has a relationship of responsibility for the child or young person; (iii) an Aboriginal or Torres Strait Islander member of the child or young person's community; (iv) an Aboriginal or Torres Strait Islander person; (d) the participation element—if a decision is to be made under this Act which affects an Aboriginal or Torres Strait Islander child or young person, Aboriginal and Torres Strait Islander family‑led decision making should be engaged in at the earliest opportunity to ensure that the child or young person, their parents and other family members are enabled to participate in the making of the decision and that their views are considered by the decision maker; (e) the connection element—Aboriginal and Torres Strait Islander children and young people placed with a person under this Act should be supported to develop and maintain their connection with their family, community, culture, Country and language, particularly when the child or young person is placed with a person who is not an Aboriginal or Torres Strait Islander person. (3) Without limiting any other provision of this Act, each person or body engaged in the administration, operation or enforcement of this Act must, in making a decision under this Act relating to an Aboriginal or Torres Strait Islander child or young person, implement each of the elements of the Aboriginal and Torres Strait Islander Child Placement Principle that are relevant to the decision to the standard of active efforts. (4) Without limiting the ways in which an element or elements of the Aboriginal and Torres Strait Islander Child Placement Principle can be implemented to the standard of active efforts, examples of the ways in which a decision‑maker might do so include, where relevant— (a) considering how the Aboriginal or Torres Strait Islander child or young person can be prevented from needing to be removed from their families under this Act (including by actively considering alternative courses of action that may be available, such as assistance in accessing relevant support and services); or (b) actively promoting the self‑determination of the Aboriginal and Torres Strait Islander child or young person and their family and community in relation to a decision; or (c) engaging with the Aboriginal or Torres Strait Islander child or young person and their family and community by means of Aboriginal and Torres Strait Islander family‑led decision making; or (d) thorough scoping of the Aboriginal or Torres Strait Islander child or young person's family to identify culturally connected placements; or (e) supporting and maintaining the Aboriginal or Torres Strait Islander child or young person's connection to family, community, culture, and Country throughout every stage of their involvement in the child protection and family support system; or (f) having regard to the possible long‑term effects of the decision on the Aboriginal or Torres Strait Islander child or young person's identity and connection with their family, community, culture and Country. (5) For the purposes of subsection (2)(c)— (a) if an Aboriginal or Torres Strait Islander child or young person has parents from different Aboriginal or Torres Strait Islander communities—consideration should be given to the child or young person's own sense of belonging; and (b) if an Aboriginal or Torres Strait Islander child or young person has parents from different Aboriginal or Torres Strait Islander communities, and the child or young person is placed with 1 parent's family or community—arrangements should be made to ensure that the child or young person has the opportunity for continuing contact and connection with their other parent's family, community and culture; and (c) if an Aboriginal or Torres Strait Islander child or young person has 1 Aboriginal or Torres Strait Islander parent and 1 non‑Aboriginal or Torres Strait Islander parent—the order of priority for familial placement should be determined by considering the best interests of the child or young person; and (d) if an Aboriginal or Torres Strait Islander child or young person is to be placed under the guardianship of a non‑Aboriginal or Torres Strait Islander person—the Court should, following advice of a Respected Person on the matter, be satisfied that the person has demonstrated a strong commitment, and has the capability, to ensure the maintenance of the child or young person's Aboriginal or Torres Strait Islander culture and identity, including through contact and connection with family, community, culture and Country; and (e) if an Aboriginal or Torres Strait Islander child or young person is to be placed with a non‑Aboriginal or Torres Strait Islander person under Part 12—the Chief Executive should be satisfied that the person has demonstrated a strong commitment, and has the capability, to ensure the maintenance of the child or young person's Aboriginal or Torres Strait Islander culture and identity, including through contact and connection with family, community, culture and Country. 50—Additional considerations relating to reunification of certain Aboriginal and Torres Strait Islander children and young people and their parents Without limiting any other provision of this Act, the Chief Executive must, if an Aboriginal or Torres Strait Islander child or young person is removed from their parents under this Act— (a) make active efforts to explore ways in which the child or young person and their parents can be reunified; and (b) if, in the opinion of the Chief Executive, reunification of the child or young person and their parents is not viable—make active efforts to identify or locate members of the child or young person's family or community with whom the child or young person can be placed. 51—Principle of Aboriginal and Torres Strait Islander family‑led decision making (1) For the purposes of this Act, the principles set out in this section constitute the principle of Aboriginal and Torres Strait Islander family‑led decision making (and a reference to a person or body engaging in Aboriginal and Torres Strait Islander family‑led decision making will be taken to be a reference to the person or body acting in accordance with those principles). (2) Each person or body performing functions under this Act must, when making a decision in respect of an Aboriginal or Torres Strait Islander child or young person— (a) make decisions in a culturally safe and respectful way that draws on traditional Aboriginal or Torres Strait Islander methods of enabling culturally‑based family‑driven decisions; and (b) promote self‑determination, participation and shared decision making at each stage of making the decision; and (c) support the family of the child or young person to make informed choices in respect of the best interests of the child or young person; and (d) assist the family of the child or young person, and their support networks, to think and plan creatively in relation to, and to utilise their strengths and resources to resolve, concerns raised in respect of the child or young person; and (e) provide accessible and culturally safe forums to the family of the child or young person so they can feel comfortable in actively participating, and working in partnership, with persons or bodies responsible for decision making in relation to the child or young person; and (f) provide opportunities to the family of the child or young person for ongoing participation in all significant decisions relating to the child or young person; and (g) take into account the views of the family of the child or young person; and (h) where it is reasonably practicable to do so, support the family of the child or young person to engage with an Aboriginal or Torres Strait Islander organisation. (3) The requirements under this section do not limit any other ways in which Aboriginal or Torres Strait Islander people can be involved in a decision under this Act. 52—Additional considerations relating to best interests of Aboriginal and Torres Strait Islander children and young people Without limiting section 11, in considering what is in the best interests of a particular Aboriginal or Torres Strait Islander child or young person, regard should be given to such of the following as may be relevant in the circumstances: (a) the need to comply with the Aboriginal and Torres Strait Islander Child Placement Principle; (b) the child rearing practices of Aboriginal or Torres Strait Islander people; (c) the need to provide the child or young person with the opportunity to maintain and build their identity, as well as their connections to their Aboriginal or Torres Strait Islander family, community, culture and Country; (d) the child or young person's need to have an environment in which they— (i) feel safe and supported to express their culture and spiritual and other belief systems; and (ii) are supported by a carer who respects their identity as an Aboriginal or Torres Strait Islander child or young person and who nurtures and encourages their sense of self and identity in respect to their family, community, culture and Country; (e) any other matter prescribed by the regulations. Division 4—Recognised Aboriginal or Torres Strait Islander entities 53—Minister may recognise certain Aboriginal or Torres Strait Islander entities for purposes of Act (1) The Minister may— (a) on an application by an eligible entity or on the Minister's own motion; and (b) after consulting with— (i) the Aboriginal or Torres Strait Islander community or a section of the Aboriginal or Torres Strait Islander community; and (ii) any peak bodies prescribed by the regulations; and (iii) any other person or body prescribed by the regulations, by notice in writing, recognise an eligible entity as a recognised Aboriginal or Torres Strait Islander entity for the purposes of this Act if satisfied that— (c) the entity is an eligible entity; and (d) the eligible entity agrees to being a recognised Aboriginal or Torres Strait Islander entity. (2) An application under subsection (1) must— (a) be made in a manner and form determined by the Minister; and (b) be accompanied by such information and documents as may be required by the Minister. (3) The recognition of a recognised Aboriginal or Torres Strait Islander entity— (a) may be conditional or unconditional; and (b) has effect for the period specified in the notice; and (c) must comply with any requirements prescribed by the regulations. (4) The Minister may, by notice in writing, vary or revoke a condition of the recognition of a recognised Aboriginal or Torres Strait Islander entity for any reason the Minister thinks fit. (5) The Minister may, by notice in writing and in accordance with any requirements set out in the regulations, vary or revoke the recognition of a recognised Aboriginal or Torres Strait Islander entity. eligible entity means— (a) a person— (i) who is an Aboriginal or Torres Strait Islander person; and (ii) who has relevant knowledge of, or expertise in, child protection or another relevant field; and (iii) who is not a prohibited person under the Child Safety (Prohibited Persons) Act 2016; and (iv) in relation to whom a working with children check has been conducted within the preceding 5 years; and (v) who complies with any other requirements set out in the regulations; or (b) an entity that provides services to Aboriginal or Torres Strait Islander people in this State— (i) the chief executive of which (however described) is a person with the attributes set out in paragraph (a); and (ii) that complies with any other requirements set out in the regulations; or (c) an entity that provides services to Aboriginal or Torres Strait Islander people in this State— (i) the governing body of which consists of a majority of— (A) Aboriginal or Torres Strait Islander people; and (B) people who have relevant knowledge of, or expertise in, child protection; and (ii) each director of which (however described) is a person— (A) who is not a prohibited person under the Child Safety (Prohibited Persons) Act 2016; and (B) in relation to whom a working with children check has been conducted within the preceding 5 years; and (iii) that complies with any other requirements set out in the regulations; or (d) any other entity, or entity of a class, prescribed by the regulations. Division 5—Delegation of functions in respect of Aboriginal and Torres Strait Islander children and young people 54—Delegation of certain functions to recognised Aboriginal or Torres Strait Islander entities (1) Without limiting any other power of delegation the Chief Executive may have under this Act or any other Act, the Chief Executive may delegate a specified function, or functions of a specified class, under this Act (other than a prescribed function) to— (a) a specified recognised Aboriginal or Torres Strait Islander entity; or (b) a specified member of a recognised Aboriginal or Torres Strait Islander entity. (2) To avoid doubt, the Chief Executive may delegate a function of a child protection officer under this section. (3) Without limiting subsection (1), a delegation may relate to a specified Aboriginal or Torres Strait Islander child or young person, or Aboriginal or Torres Strait Islander children or young people of a specified class. (4) A delegation under subsection (1)— (d) may, if the instrument of delegation so provides, be further delegated; and (e) is revocable at will. (5) Before delegating a function to a recognised Aboriginal or Torres Strait Islander entity, or a member of a recognised Aboriginal or Torres Strait Islander entity, under this section, the Chief Executive must— (a) unless a memorandum of understanding between the Chief Executive and the recognised Aboriginal or Torres Strait Islander entity is in force in relation to such delegations, consult with the recognised Aboriginal or Torres Strait Islander entity in relation to the delegation; and (b) undertake such consultation as may be required by the regulations to ascertain the views of the Aboriginal or Torres Strait Islander child or young person, or children or young people, to whom the delegation relates, and their family and community; and (c) be satisfied that it is, in all the circumstances, appropriate that the recognised Aboriginal or Torres Strait Islander entity, or the member (as the case requires), perform the functions to which the delegation relates; and (d) comply with any other requirements set out in the regulations. (6) However, the Chief Executive need not comply with subsection (5)(b) if to do so would, in the opinion of the Chief Executive, result in an unacceptable risk to the safety or wellbeing of a child or young person. (7) Despite any other Act or law, the Chief Executive may provide such information and documents to a delegated decision maker in respect of an Aboriginal or Torres Strait Islander child or young person as the Chief Executive considers reasonably necessary to allow the delegated decision maker to perform their delegated functions. (8) Without limiting any other provision of this Act, the Chief Executive may require a delegated decision maker in respect of an Aboriginal or Torres Strait Islander child or young person to provide to the Chief Executive such information or documents relating to the child or young person as may be specified by the Chief Executive. (9) A delegation under this section has effect until— (a) the Chief Executive revokes the delegation; or (b) the recognised Aboriginal or Torres Strait Islander entity informs the Chief Executive, by notice in writing, that the entity will no longer act under the delegation; or (c) the recognition of the Aboriginal or Torres Strait Islander entity is revoked, or the entity otherwise ceases to be a recognised Aboriginal or Torres Strait Islander entity, (10) The regulations may make further provisions relating to delegations under this section, including, but not limited to— (a) the records that must be made and kept by a delegated decision maker, and the period for which such records must be kept; and (b) the reporting requirements that apply to a delegated decision maker. 55—Costs of recognised Aboriginal or Torres Strait Islander entity performing delegated functions to be borne by Crown Such costs and expenses as may reasonably be incurred by a recognised Aboriginal or Torres Strait Islander entity performing delegated functions under this Act (including costs related to staffing the entity) are to be borne by the Crown. Division 6—Family group conferencing for Aboriginal and Torres Strait Islander children and young people 56—Additional purposes of family group conferences for Aboriginal and Torres Strait Islander children and young people (1) Without limiting section 96 or 114, the purposes of a family group conference convened in respect of an Aboriginal or Torres Strait Islander child or young person include giving effect to— (a) the Aboriginal and Torres Strait Islander Child Placement Principle; and (b) the need for self‑determination; and (c) the principle of Aboriginal and Torres Strait Islander family‑led decision making. (2) Without limiting section 99, the coordinator of a family group conference convened in respect of an Aboriginal or Torres Strait Islander child or young person must determine such procedures of the conference as the coordinator considers necessary or appropriate to further the purposes set out in subsection (1). 57—Family group conference to be convened (1) Despite section 98, but subject to this section, if— (a) the Chief Executive causes an assessment of an Aboriginal or Torres Strait Islander child or young person to be carried out in accordance with section 79; or (b) the Chief Executive becomes aware that a child or young person in care is an Aboriginal or Torres Strait Islander child or young person; or (c) a family member of an Aboriginal or Torres Strait Islander child or young person in care requests that a family group conference (however described) be convened, the Chief Executive must, as soon as is reasonably practicable and in accordance with any requirements set out in the regulations, cause a family group conference under section 98 to be convened in respect of the child or young person. (2) However, the Chief Executive need not comply with this section— (a) if a particular person refuses to participate in the family group conference and the Chief Executive is satisfied that the person's participation is required for a decision at the conference to be valid; or (b) if a family group conference in respect of the Aboriginal or Torres Strait Islander child or young person has been convened within the preceding 6 months; or (c) if the Chief Executive is of the opinion that convening a family group conference is not, in all the circumstances, in the best interests of the Aboriginal or Torres Strait Islander child or young person; or (d) in any other circumstances prescribed by the regulations. 58—Coordinator of family group conference to be Aboriginal or Torres Strait Islander person Without otherwise limiting section 98 or 114, the coordinator of a family group conference convened in respect of an Aboriginal or Torres Strait Islander child or young person must, unless it is not reasonably practicable or prescribed circumstances apply, be an Aboriginal or Torres Strait Islander person (as the case requires, and not being a person who is an employee of the Department). Division 7—Court proceedings under Act involving Aboriginal and Torres Strait Islander children and young people 59—Regulations etc to establish scheme for Respected Persons to participate in Court proceedings involving Aboriginal and Torres Strait Islander children and young people (1) The Governor may, by regulation, establish a scheme providing for the use of Respected Persons in Court proceedings— (a) to support Aboriginal and Torres Strait Islander children and young people to whom the proceedings relate; and (b) to assist and advise the Court in relation to the practices and culture of Aboriginal and Torres Strait Islander people and communities. (2) Without otherwise limiting the regulations that may be made under subsection (1), the regulations must provide for— (a) the appointment and selection of Respected Persons; and (b) consultation (including consultation with specified peak bodies); and (c) the kinds of proceedings before the Court in which a Respected Person may, or may not, be used; and (d) the role of Respected Persons as support persons for Aboriginal or Torres Strait Islander children and young people in proceedings before the Court; and (e) the role of Respected Persons in providing advice to the Court in relation to the practices and culture of Aboriginal and Torres Strait Islander people and communities (whether on behalf of an Aboriginal or Torres Strait Islander child or young person to whom the proceedings relate or otherwise); and (f) the ways in which a Respected Person may provide evidence or information to the Court. (3) Regulations establishing a scheme under this section may, to the extent required for the purposes of the scheme, modify a provision of this Act, or modify the operation of the Youth Court Act 1993 or a provision of that Act. (4) Without limiting section 32 of the Youth Court Act 1993 or any other provision of this Act, the Court must, in accordance with that section, make such rules as may be necessary to ensure the scheme for the use of Respected Persons is given effect. (5) An order of the Court will not be invalid by reason of a failure to comply with the scheme established under this section. 60—Court to be satisfied that Aboriginal and Torres Strait Islander Child Placement Principle implemented before making certain orders (1) Without limiting any other provision of this Act, or any other power the Court may have, the Court must, before making an order, be satisfied that the Aboriginal and Torres Strait Islander Child Placement Principle has, so far as is practicable in the circumstances, been implemented to the standard of active efforts in relation to the Aboriginal or Torres Strait Islander child or young person who is the subject of the order. (2) For the purposes of subsection (1), the Court may have regard to— (a) any report filed by a recognised Aboriginal or Torres Strait Islander entity or the Chief Executive (or both); and (b) any other information the Court considers relevant. (3) However, this section does not apply in relation to— (a) an assessment order; or (b) an interim order under Part 10; or (c) any other order, or order of a class, prescribed by the regulations. 61—Court not to make certain orders in relation to Aboriginal and Torres Strait Islander children and young people unless family group conference convened (1) Subject to subsection (2), a prescribed order must not be made by the Court in relation to an Aboriginal or Torres Strait Islander child or young person unless at least 1 family group conference (whether convened by the Chief Executive or the Court) has been convened in respect of the child or young person. (2) Subsection (1) does not apply— (a) if the Chief Executive has not complied with section 57 in the circumstances referred to in section 57(2); or (b) in any other circumstances prescribed by the regulations. prescribed order means an order made by the Court under section 116(1)(e), (f), (g), (h), (i) or (j). A prescribed order does not include an assessment order or an interim order. Division 8—Case planning for Aboriginal and Torres Strait Islander children and young people 62—Additional requirements relating to case planning for Aboriginal and Torres Strait Islander children and young people Without limiting section 133, a case plan for an Aboriginal or Torres Strait Islander child or young person must— (a) set out how the Aboriginal and Torres Strait Islander Child Placement Principle has been, and will be, implemented in the course of case planning (including the extent to which the standard of active efforts has been met in doing so); and (b) set out a cultural maintenance plan that is developed with input from— (i) the child or young person and their family and community; and (ii) where practicable, an Aboriginal or Torres Strait Islander organisation; and (c) set out how the cultural needs and identity of the child or young person are being, or will be, met (including, but not limited to, receiving respect for, and having access to, cultural beliefs and cultural foods, receiving support to travel to attend cultural events, obligations and ceremonies and to connect with Country); and (d) include arrangements for connection with the child or young person's Aboriginal or Torres Strait Islander family, community, culture and Country (including, but not limited to, cultural mentors or Elders from the same Aboriginal or Torres Strait Islander community as the child or young person). Division 9—Placement of Aboriginal and Torres Strait Islander children and young people by Chief Executive 63—Chief Executive must consult with recognised Aboriginal or Torres Strait Islander entity before placing Aboriginal or Torres Strait Islander child or young person (1) Without limiting any other provision of this Act, the Chief Executive must, if it is reasonably practicable to do so, consult with, and have regard to any submissions of, a recognised Aboriginal or Torres Strait Islander entity before placing an Aboriginal or Torres Strait Islander child or young person under Part 12 Division 1. (2) However, subsection (1) does not apply to a delegated decision maker to whom functions relating to the placement of the child or young person have been delegated under this Act.