CHILDREN'S PROTECTION (IMPLEMENTATION OF REPORT RECOMMENDATIONS) AMENDMENT BILL

Committee Stage

In committee.

(Continued from 18 November 2009. Page 3943.)

Clause 7.

The Hon. S.G. WADE: I thank the minister and minister Rankine's office for working with the opposition to discuss our concerns about the breadth of the discretionary powers. In those discussions, it was clear that it was in relation to a couple of areas that the government feels it needs to have discretionary powers, in particular with respect to regulations dealing with centres authorised to issue personal criminal histories and also in relation to fees. We see the wisdom of giving discretion in relation to those two areas as the national scheme develops. I will be moving amendments, which I understand are acceptable to the government and which are merely to limit the discretionary power to the areas where the government feels it needs it.

The CHAIRMAN: Just before you move your amendment, there is an amendment in the name of the minister which deals with the matter that your amendment deals with. The minister has already moved her amendment, which is in two parts. The first question is: that the minister's amendment to insert new paragraph (ca) be agreed to.

New paragraph (ca) agreed to.

The Hon. S.G. WADE: I understand that the government will join the opposition in voting against the inclusion of the second part of the minister's amendment for the reasons that I indicated. The opposition's view is that the discretionary powers clause is too broad, and it can be limited to two particular types. As I foreshadowed, a future amendment will express the limitations.

The Hon. G.E. GAGO: I will be supporting the honourable member's amendment.

The CHAIRMAN: The next question is: that the minister's amendment to insert new paragraph (cb) be agreed to.

New paragraph (cb) negatived.

The CHAIRMAN: There is a further amendment to clause 7 in the name of the Hon. Mr Wade.

The Hon. S.G. WADE: I understand that my Wade 1(1) is redundant.

The CHAIRMAN: This is Wade 1(2).

The Hon. S.G. WADE: I move:

Page 5, after line 11 [clause 7(6), inserted subsection (7)[—Insert:

(da) in the case of a regulation of a kind referred to in paragraph (ab) or a regulation providing for the waiver or remission of a fee—confer discretionary powers on the minister, the chief executive or another person or body; and

As I understand it and for the reasons I foreshadowed, this is the extent of the discretionary powers the government wishes, and the opposition supports that. It is unusual but we are in unusual circumstances, as the national regime develops.

The Hon. G.E. GAGO: The government supports this proposal. The intent of the government's amendment to insert paragraph (cb) was to ensure that South Australia has a sufficient legislative framework to fully participate in the Council of Australian Governments Information Exchange.

The discretionary power was intended primarily to allow for the authorisation of screening units to participate in the enhanced inter-jurisdictional criminal history exchange and also to provide the flexibility to respond quickly to any issues that might arise during the implementation phase and pilot period. We believe it is unnecessary, but we are happy to support it.

Amendment carried.

The Hon. S.G. WADE: I have further questions on clause 7. As I indicated to the minister, we hope that the government will clarify some issues that have been raised, in particular by the Australian Medical Association. The Australian Medical Association suggests that no other state in Australia requires persons to undergo a criminal history assessment merely because they have access to records relating to children. What is the justification for including access to records in terms of the risk to children?

The Hon. G.E. GAGO: Apparently, it is in line with overseas best practice. The risk to vulnerable children is not just associated with the fact that these predators have access and contact with a child but the fact that they have access to their records. That means they may have information about children. That will assist predators to identify children who might be more susceptible to being preyed upon.

Unfortunately, there are some tragic examples historically. Recently, in England, the perpetrator did not have access to children but he had access to their records and he killed two little girls because he knew of their whereabouts.

The Hon. S.G. WADE: Does the government intend to capture all employees of medical practices, including workers with minimal contact with children or no unsupervised contact with children? In particular, in consideration of the clerical and administrative employees of medical practices, does the government consider the practice policies around the use of and access to sensitive health information by virtue of the national privacy principles reduces the risk such that these staff could be exempt from the need for a criminal history check?

The Hon. G.E. GAGO: I have been advised that we want organisations to determine some of these matters for themselves within, obviously, the parameters of the proposed legislation so that organisations can look at their personnel and the procedures and systems that they have in place. They can then make determinations about what information is available to what staff and ask whether they actually need it, and what systems they could put in place that would then determine who would be required to have a check and who would not.

We are certainly encouraging organisations to have a good look at their practices and to perhaps rearrange them in a way to ensure that only those persons who need to have direct access to records do have it and, therefore, are captured by the legislation.

The Hon. S.G. WADE: I thank the minister for her answer, and I am sure that the government will be having discussions with the AMA in the period during which the regulations are being developed. However, I suspect that the minister's suggestion of separating out employees from children's records is likely to be impractical. It is basically suggesting having two filing systems: one for those who are under 18 and one for those who are not.

The AMA queried whether a declaration of criminal history—and I stress a declaration of criminal history—rather than production of a personal criminal record, which would be required to be provided to a professional registration board such as the Medical Board of South Australia, might obviate the need for a criminal history report under this act.

The Hon. G.E. GAGO: I have been advised that in practice a person is usually required to sign a statutory declaration about their criminal history in order to establish fitness and propriety. Commissioner Mullighan cautioned against this approach because it relies on the truthfulness of the person making the declaration. People who may wish to harm children have a reason not to be truthful.

In line with Commissioner Mullighan's recommendation, these changes will allow organisations providing health services to children to independently assess whether a person is suitable to work with children in their organisation having regard to the person's criminal history, the position and the safeguards that the organisation already has in place, such as child safe environment policies, procedures and suchlike.

The Hon. S.G. WADE: Will a police check done for professional registration purposes meet the requirements of this bill?

The Hon. G.E. GAGO: It has not been finalised, I have been advised. The South Australian government is aware that there is currently work occurring at a national level to establish a uniform registration and accreditation scheme for some health practitioners. A draft bill was released by the Australian Health Workforce Ministerial Council for public consultation in June 2009.

The intent of the children's protection amendment bill is to prevent unsuitable people from engaging in child-related work. It is not the government's intention to impose unnecessary administrative burdens on organisations. Once the national scheme is finalised, the South Australian government will examine the scope of the national scheme and implement strategies to avoid unnecessary duplication of process.

The Hon. A. BRESSINGTON: Will the minister inform the committee whether she is aware of any other forensic-type testing that can be done on people in relation to their backgrounds? A document that I read last week from Professor Freda Briggs stated that research shows now that people who have perpetrated a crime against children have in fact committed on average 300 to 400 crimes against children before they have actually been caught and this only requires that a person has been convicted.

It takes a long time to get from perpetrating a crime against children to being caught and to actually having a conviction recorded, and it is very hard sometimes for police to secure a conviction. There must be some other way, such as psychological evaluations, that would go towards showing a person's suitability to be working with children other than relying on a criminal record, a criminal check or whatever.

The Hon. G.E. GAGO: I understand what you are getting at. It is a very serious issue and it is one that is very difficult to control completely. Given the breadth and the scope that perpetrators can have across a wide range of different organisations, institutions and just potential social interactions, to police all of those is very difficult.

This bill does not seek to do all of those things. What it seeks to do is to address and tighten up one component of it. I accept that there are other things that can and are being looked at, and I am happy for officers to take that on notice and to engage with you and talk to you further about some of the things that are being done in other areas and areas where other work and research is being done.

The Hon. S.G. WADE: I think the Hon. Ann Bressington raises a good point, which is that there is nothing magical about a police criminal history check. I am not suggesting that the government is saying there is. However, the Hon. Ann Bressington raised the issue of the period of time that it might take for a person to come to the attention of police, for a charge to be laid, etc., and at this particular point where we are talking about a volunteer or a professional entering into an organisation where they will have access to children, I think it is worth asking the question: is there anything else that we can do since we have them engaged?

I certainly accept the minister's point that Commissioner Mullighan thinks that we should not rely on a declaration of criminal history as our primary assurance. I accept that a personal criminal history is better than a declaration of criminal history, but it is also not an either/or situation. Has the government considered, as part of this process, also asking people as they enter an organisation to make a declaration particularly in relation to the period since their last police check? I ask that because I understand that the bill or the regulations anticipate that a person might well present a police check done in the last three years. A declaration might be able to put them under a statutory duty to declare that there are no relevant offences since the police check. If I might add another question: might it also be appropriate to place a duty on a person to advise the organisation if they are either charged or convicted of a relevant offence during their employment?

The Hon. G.E. GAGO: I have been advised that this legislation has been designed in such a way that it enables organisations to have the right to require their employees to have regular police checks. In fact, they can require an updated police check at any time. That provision would be in place. In relation to information about future charges and offences, one needs to think about the practicalities in terms of how that would be done; that is, how SAPOL or the courts would then inform all other organisations in some way of a person who has committed an offence. Serious sex crimes go on a register that is publicly available.

Approximately 150,000 people are affected by these proposed changes. We are always looking for ways to improve the safety of vulnerable children, and we need to do that in a way that is practical. We need to put measures in place that are workable and do it in a way that is fair and reasonable in terms of the imposts on those employees, most of whom are doing the right thing and are good people. We believe that the bill before us improves those safety mechanisms. We are not saying it addresses every possible problem. Obviously, it is something the agency is always mindful of, and it is always looking for other initiatives to tighten and improve regulatory protections.

The Hon. S.G. WADE: I accept the minister's comments as the government's position, but I hardly think that asking a person to sign a declaration at the same time as they are employed or engaged in an organisation is a heavy impost.

The Hon. G.E. Gago interjecting:

The Hon. S.G. WADE: The minister disorderly interjects, 'Why not get them to do a police check?' I should clarify: my comments were completely in the context of additional items we could do on top of a police check. I do not think anyone is suggesting that the police check is a magic bullet, and I do not think the government should be closed to other opportunities to provide some level of reassurance to do the best we can to identify people who could be a perpetrator. Do any other members have any other questions on that issue?

The CHAIRMAN: Order! I will chair the committee stage.

The Hon. S.G. WADE: Sorry; I had issues with another matter.

The CHAIRMAN: I will still chair the committee stage.

The Hon. A. BRESSINGTON: I agree with what the Hon. Stephen Wade is saying. People know there is a fine (I think it is $10,000) if they fill out a statutory declaration dishonestly or they do not tell the truth. It may not go towards preventing a person slipping through the cracks and getting a job with an organisation where he or she will be dealing with children, but it will ensure that, if that is discovered, that person actually does suffer some penalty for lying on a statutory declaration. We know that police checks will only get people who have been convicted. I cannot imagine that anyone who has been convicted of an offence against a child and who has been released from gaol, finished their sentence, or whatever, would be stupid enough to apply for a job to work with children again. I know the sentiments behind it but it achieves nothing.

The Hon. G.E. GAGO: Commissioner Mullighan cautioned against statutory declarations specifically because they rely on the truthfulness of the person. If you want to know whether a person has committed an offence, the best way to do it is to conduct a police check. That will determine whether that person has committed not only offences relating to children but any offence, such as serious drink-driving, for instance. You might have someone who is in charge of a bus and who is driving children. It shows all offences. Why would you put in place another hurdle that has less veracity—that is, a stat dec—that does not add anything more, that has less information, less weight and less material than the police check?

What you are trying to do is ensure that people who have committed those offences are not being employed. We know that those who prey on children have developed amazing patterns of deception to con children and their parents. We know that they are very clever in the way in which they map out, target children and work on them.

Commissioner Mullighan specifically cautioned against them because they rely on truthfulness. Why would we ask someone who has good reason to be dishonest to sign a stat dec? Why not just check the police record?

The CHAIRMAN: This is rambling on a bit.

The Hon. A. BRESSINGTON: I make the point to the minister that we are not saying either a stat dec or a police check: it is both. Filling out a stat dec is of no cost to anybody, and it is a 10 minute exercise. However, it puts an onus on the person to ensure that what is in that stat dec is the truth, or down the line, if they are caught, there is a $10,000 fine for filling it out falsely. So, it is not either/or; it is both.

The Hon. S.G. WADE: I agree with the comments the Hon. Ann Bressington has made, so I will not repeat them. First, I think it should be added that the minister indicated that the relevant offence may not be a predatory offence; it may be a road offence that is relevant to bus driving, etc., so why would you not give otherwise truthful people an opportunity to be declaratory?

Secondly, Commissioner Mullighan did not say that statutory declarations were of no use; he just said that he would prefer to rely on a police check—so would the Hon. Ann Bressington and I. Why not do more? The opposition hopes that the officers might understand this point better than the minister and that, in the future, the government looks at more opportunities to strengthen this regime. I can assure the government that, if it is not going to be open to new ideas, certainly the members of the crossbench and the opposition will be open to opportunities next time this act is opened.

The Hon. G.E. GAGO: I do not think that a lot more needs to be said about this. Commissioner Mullighan cautioned against it; therefore, the government has not adopted it in the legislation. I put on the record that Commissioner Mullighan cautioned against this. There is nothing to stop organisations from making stat decs a requirement of their employment procedures.

Organisations can do that, so if they believe it will in some way assist and inform them, I cannot say that I encourage them to do so because Commissioner Mullighan cautioned against them, but there is nothing to stop them. However, because Mullighan cautioned against them, we have not included it as part of our policy position.

The Hon. DAVID WINDERLICH: I am interested in what guidelines might be given to responsible authorities around working out what a relevant offence is and how it affects the role it plays. For example, if a person breaks someone's nose in a bar fight at the age of 19, does that mean they cannot coach football at the age of 26? If somebody steals a car at the age of 18, does that mean they cannot drive a school bus at the age of 30? What sorts of guidelines will be given to responsible authorities to work out those sorts of things?

The Hon. G.E. GAGO: I am advised that, first, the organisations are those that are employing people to perform particular role functions and take on particular positions within their organisations, and they would be determined by their position statements and job descriptions, etc. So, it is for the organisation to determine what offences they believe line up with that job description and role responsibilities that might have an influence on them. So, it is there for them to assess and make whatever cross-checks and matches they believe are suitable. Secondly, I am advised that in the phase-in year, which is all of 2010, the office will be happy to work with groups to assist them in developing whatever guidelines that they believe would assist them.

The CHAIRMAN: I intend to put this clause soon. We have had a fair debate, and members have had opportunities to move amendments if they are not happy with the clause. I will have only questions; no long drawn out statements.

The Hon. S.G. WADE: I refer to Mullighan recommendation No. 3, which is that consideration is given to reducing or waiving the fee for an organisation applying for a criminal history report in order to comply with section 8B. In the Department for Families and Communities information for community organisations in relation to the government's plans, it states that the government is meeting the cost of obtaining criminal history reports for some volunteers who work with children in volunteer organisations through the Volunteer Organisation Authorisation Number system. What proportion of the 150,000 volunteers who will need police checks under this bill will be exempt from fees under the VOAN system?

The Hon. G.E. GAGO: I am advised that it will be impossible to say what percentage of people will be volunteers until organisations have done their audits and determined that for themselves.

The Hon. S.G. WADE: To put the question another way, is the policy of meeting the costs of criminal history records only if a volunteer works in an organisation with children covered by the VOAN a different policy from the policy pre-dating this changed regime?

The Hon. G.E. GAGO: I am advised no.

The Hon. S.G. WADE: Just to make it clear to the committee, the minister answering no means that the government has not acceded to Commissioner Mullighan's recommendation that consideration is given to reducing or waiving the fee for an organisation.

The Hon. DAVID WINDERLICH: What assistance will be provided to community organisations, sports groups and so forth, in terms of training around the implementation of these changes and assistance in any additional paperwork and compliance requirements?

The Hon. G.E. GAGO: I have been advised that consultation has already been commenced and is already under way, and we have designated a full 12 month phase-in period where we will continue to work with all relevant stakeholders.

Clause as amended passed.

Clause 8.

The Hon. S.G. WADE: What estimates has the department made in relation to the number of statements in relation to child safe environments that will be received from private medical practitioners, all health providers and all affected organisations?

The Hon. G.E. GAGO: I have been advised that we will not know that until organisations have gone through the process and done their audits.

The Hon. S.G. WADE: Who will view these statements within the department and how will they be acted upon?

The Hon. G.E. GAGO: I am advised that Families SA will do it via assessing the safety plans.

The Hon. S.G. WADE: What did you call them?

The Hon. G.E. GAGO: Safety plans. Families SA will assess the safety plans; they are the plans that organisations will be required to complete identifying those particular classifications.

The Hon. S.G. WADE: What additional resources, both administrative and investigative, will be provided to the department to undertake that function?

The Hon. G.E. GAGO: I am advised that it will be within current resources, and we will continue to monitor it to see how it pans out.

The Hon. S.G. WADE: I am sure the PSA will find it incredible that you could review 150,000 child safety plans and do it with no additional resources.

Clause passed.

Clauses 9 to 12 passed.

Clause 13.

The Hon. S.G. WADE: Commissioner Mullighan said in recommendation 26:

Consideration should be given to changing the name of the Guardian for Children and Young People to avoid confusion with the role of the minister as legal guardian of children and young people placed in state care.

Does the government agree that the title of the guardian is confusing, and what does it propose to do?

The Hon. G.E. GAGO: I am advised that it was the wish of the guardian herself.

The Hon. S.G. WADE: I accept that the guardian did not want to change her name, but the commissioner felt that it was confusing. So, does the government accept the guardian's advice and reject the Mullighan advice that the term is confusing?

The Hon. G.E. GAGO: It was thought that it would create even more confusion to bring about a change, given that it had been in place for some time.

The Hon. S.G. WADE: Commissioner Mullighan found the dismissal elements in relation to the guardian objectionable. Those same arrangements apply to members of the Council for the Care of Children and the Child Death and Serious Injury Review Committee. Does the government intend to amend the constitutions of those two bodies to strengthen their independence in ways similar to those done by this bill?

The Hon. G.E. GAGO: I have been advised no.

The Hon. S.G. WADE: The commissioner recommended that the independence provisions of the guardian be strengthened in similar ways to the wording of the Health and Community Services Commission Act. The provisions in the bill are similar, but there are some differences. Can the minister explain them? In relation to the commissioner, it includes 'resigns by written notice given to the minister', whereas in relation to the guardian provisions it says 'resigns by notice of resignation given to the minister'. Will the minister explain the difference?

The Hon. G.E. GAGO: I am advised that it is purely administrative. If there is some other reason we will bring that back. We are happy to take it on notice.

The Hon. S.G. WADE: I thank the minister for that. In that same context, I would ask the minister for an explanation of the difference relating to the commissioner's paragraph (f), which states:

…is convicted of an indictable offence or sentenced to imprisonment for an offence—

which contrasts with the guardian's provision, which states:

…is convicted either within or outside the state of an indictable offence or an offence carrying a maximum penalty of imprisonment for 12 months or more.

The Hon. G.E. GAGO: I am happy to take that question on notice.

Clause passed.

Clause 14.

The Hon. S.G. WADE: I notice that, in relation to Commissioner Mullighan's recommendations on section 52AB, which relates to independence, he suggested that the two options would be between the provisions in the Health and Community Services Complaints Act and the employee ombudsman legislation. I would ask the minister on what basis the government preferred the health/community provisions.

The Hon. G.E. GAGO: I have been advised that it was in line with Commissioner Mullighan's recommendations. He tended to refer more to the alignment of the Health and Community Services Complaints Act rather than the Ombudsman Act.

The Hon. S.G. WADE: The clause that we just passed, clause 13, removes section 52A(6), which provides that the guardian is to be subject to the minister's direction. The current clause before the committee purports to limit the minister's capacity to make directions, particularly in relation to 52AB(2):

The minister cannot control how the guardian is to exercise the guardian's statutory functions and powers and cannot give any direction with respect to the content of any report prepared by the guardian.

My question is: where in the amended act will there be the power for the minister to make a direction?

The Hon. G.E. GAGO: I have been advised in section 52C(1)(f).

The Hon. S.G. WADE: I think we are miscommunicating there. I seem to recall, either in the bill or in the Mullighan report, it was acknowledged that section 52C(1)(f) could be construed as a direction, and that should not be seen to impinge on the independence of the guardian, and I completely agree with that. There will be matters where the minister will want to give directions, other than by requesting an investigation; that is implied by section 52AB(2), which puts a limitation on directions. Considering that section 52C(1)(f) was in the act before we struck out 52A(6), where has the successor to section 52A(6) gone?

The Hon. G.E. GAGO: I have been advised that the purpose and intention of this legislation is to strengthen the independence of the guardian; therefore, the only reference to the minister's powers of direction is section 52C(1)(f).

The Hon. S.G. WADE: I indicate my surprise at that. For example, does the minister foresee the need, such as I recall the Attorney-General had to engage the DPP as an independent statutory officer in relation to budgeting administrative matters relating to the conduct of that office? It may well be necessary for a direction from a minister on matters that have nothing to do with the independence. I cannot see why you would limit a direction under 52AB(2) if there is not actually any power to direct.

The CHAIRMAN: That was a statement rather than a question.

The Hon. S.G. WADE: What I was asking is whether the government can envisage that it might want to give direction to the guardian in relation to administrative matters, such as the Attorney-General has done in relation to the DPP. My second question related to why we would have a power to limit the direction if there was no power to direct.

The Hon. G.E. GAGO: I have been advised that, by the act specifically saying that the minister cannot control how the guardian is to exercise the guardian's statutory functions, it is implicit that those functions outside of that scope are open to ministerial direction. So, the powers relating to ministerial direction are provided by virtue of the fact that it is not covered by statutory functions, which are implicit.

The Hon. S.G. WADE: I accept the minister's answer, but I cannot see why it is that in the original we needed to specify it and now we do not. However, if it becomes an issue, I am sure the government will come back with a bill and ask us to fix it.

Clause passed.

Progress reported; committee to sit again.

[Sitting suspended from 13:01 to 14:15]