Bills

Child Safety (Prohibited Persons) Bill

Second Reading

The Hon. K.J. MAHER (Minister for Employment, Minister for Aboriginal Affairs and Reconciliation, Minister for Manufacturing and Innovation, Minister for Automotive Transformation, Minister for Science and Information Economy) (18:30): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

The Child Safety (Prohibited Persons) Bill 2016 (the Bill) aims to minimise the risk to children posed by people who work or volunteer with them. In order to achieve this aim, the Bill provides a framework for the prohibition of persons, who pose an unacceptable risk to children, from working or volunteering with children. This objective is stated in the Bill. Under the Bill, persons wanting to work or volunteer with children are required to undertake a working with children check every five years. This check is undertaken by a central assessment unit and a person can be prohibited from working or volunteering with children.

The Bill specifically provides that the paramount consideration in respect of the administration, operation and enforcement of this new regime is the best interests of children, having regard to their safety and protection.

This is important reform that is firmly focussed on protecting the safety and well-being of children.

It is very important however, that people are not lulled into a false sense of security, and hence the Bill focuses on people being prohibited to work with children or not, rather than being cleared to do so.

Reflecting this, the Bill provides for a number of principles that must be taken into account in connection with the administration, operation and enforcement of this Act, including:

a working with children check relating to a person is conducted by the central assessment unit to determine (based on an assessment of information available to the central assessment unit):

whether the person poses an unacceptable risk to children; and

whether the person should be prohibited from working with children;

persons who pose an unacceptable risk to children are to be prevented from working with children;

a working with children check is not a determination of a person's suitability to work with children and cannot be relied on as such, and in particular:

a working with children check that does not result in a person being prohibited from working with children is not proof of good character; and

a working with children check that does not result in a person being prohibited from working with children is not proof that the person does not pose a risk to children;

a working with children check is an assessment of a person's prior conduct, and the fact that working with children checks are conducted in relation to employees does not, of itself, satisfy an employer's obligation to ensure that a workplace is safe for children; and

organisations and employers must have in place comprehensive strategies to ensure child safe environments.

The Bill adopts a number of recommendations of Royal Commissioner Nyland of the South Australian Child Protection Systems Royal Commission (the SA Royal Commission), as well as recommendations made by the Commonwealth Royal Commission into Institutional Responses to Child Sexual Abuse (the Cth Royal Commission) as set out in its final recommendations on working with children checks.

The Bill represents the adoption of recommendations 238(a) to (c) of the SA Royal Commission, being that a stand-alone legislative instrument is enacted to regulate the screening of individuals engaged in child-related work which:

declares that the paramount consideration in screening assessment must be the best interests of children, having regard to their safety and protection;

invests powers in only one authorised government screening unit which is charged with maintaining a public register of all clearances and their expiration dates;

empowers the screening authority to take into account in its assessments criminal offence and child protection history, professional misconduct or disciplinary proceedings, and deregistration as a foster parent or other type of carer under the Family and Community Services Act 1972;

Under the Bill, this screening authority is the central assessment unit and the public register is referred to as the records management system. In addition, under the Bill a screening is a working with children check.

Recommendation 238(d), states that the legislation should provide a clear definition of child-related work, including the meaning of incidental or usual contact. This will be adopted through the use of regulations facilitated in the Bill.

The Bill also adopts recommendation 238(e) to (g) such that the Bill:

declares that the outcome of a screening assessment will be limited to either a clearance or a refusal and that all applications, even if withdrawn, will be assessed;

requires individuals to seek and maintain a personal clearance, valid for a period of up to five years, through a card or unique electronic identifier system, which has portability across roles and organisations in the state and to notify the screening authority of relevant changes in their offence, conduct or child protection circumstances;

requires employers to ensure that all relevant personnel in their organisations, at all times, hold current clearances.

The Bill also adopts recommendations 238(h)(i), (ii) and (iv) by precluding exemptions from screening requirements for registered teachers, applicants waiting on screening outcome decisions and those who have been refused a working with children check.

Recommendation 238(h)(iii) stated that the legislation should preclude exemptions from screening requirements for those working or volunteering with children who are in care. The Government's intention is to consider this recommendation and determine how it can be adopted in a balanced way (by way of regulations) that ensures the privacy of children in care is not unnecessarily jeopardised. By precluding the application of some exemptions to children in care, people who would not otherwise need to know, may need to be told that a certain child was in care.

Recommendation 238(i) and (j) are also adopted so that the legislation includes:

new offences for individuals and organisations who fail to comply with the provisions of the legislation, including engagement in or for child-related work without a clearance, and dishonesty in the application process; and

permits appeals from decisions of the screening authority to the South Australian Civil and Administrative Tribunal or other independent body.

The Bill facilitates the adoption of the SA Royal Commission recommendation 239, by allowing continuous monitoring such that changes in screened individuals' circumstances are communicated to the screening authority, that clearances are reviewed, and that changes are reflected in the register, and communicated to employers.

Recommendation 240(a) to (d) are adopted in the Bill so that the screening authority:

has access to forensic expertise in child protection and behavioural indicators of risk; and

has to develop a consolidated set of standards, matrices, and weighting guidelines for use in screening assessments, that include substantiated and unsubstantiated criminal, child protection and disciplinary matters, and ensure that assessors are appropriately trained in their application;

through the regulations, will develop guidelines for ensuring that applicants are afforded appropriate procedural fairness, including circumstances in which information may be withheld from applicants;

has to develop and promulgate timeline benchmarks for screening outcomes, and procedures for informing applicants whose clearances may fall outside benchmarked times.

Recommendation 240(e) (to develop information sharing protocols with interstate screening units) whilst supported, is not appropriate for inclusion in legislation but can be facilitated administratively.

The Bill also facilitates recommendation 241, to develop an independent mechanism and evaluation process for reviewing the performance of the screening authority.

By establishing a single central assessment unit to undertake all working children checks on application by an employee, that are portable and valid for five years, the Bill also reflects South Australia's support of the Cth Royal Commission recommendations concerning working with children checks.

The Cth Royal Commission supported the establishment of a national model for working with children checks, which South Australia supports and is facilitating by largely adopting the recommended elements of what constitutes working with children and providing flexibility in the Bill for key terms (such as the different elements that constitute working with children, what constitutes incidental contact with children, what is assessable information) to be fully or partially defined in the regulations.

There is one particular recommendation of the Cth Royal Commission that has, however, not been adopted. The Cth Royal Commission supported a scheme whereby a person could commence working or volunteering with children whilst awaiting the outcome of their working with children check. This was not supported by the SA Royal Commission and the Government has chosen to adopt the approach recommended by Royal Commissioner Nyland whereby a person cannot commence working or volunteering with children until their working with children check has been undertaken and they have not been prohibited.

The Government supports the views expressed by Royal Commissioner Nyland concerning this issue.

Taking into account the scheme as proposed under the Bill, where working with children checks are portable and valid for five years, it is an unnecessary risk to children to allow people to commence employment before the working with children check has been completed.

Under the Bill, a central assessment unit is tasked with assessing, on application by a person, whether that person would pose an unacceptable risk to children and whether they should therefore be prohibited from working or volunteering with children. This is referred to as a working with children check.

Under the Bill, guidelines will be developed and will be gazetted in relation to:

procedures to be followed by the central assessment unit when conducting working with children checks; and

standards to be applied by the central assessment unit when determining the weight to be given to evidence of a specified kind; and

benchmarks for periods within which certain applications for working with children checks are to be processed by the central assessment unit; and

the risk assessment criteria to be used by the central assessment unit in conducting working with children checks.

In addition, regulations will be made that will provide for procedural fairness in the exercising of powers or the performing of functions under the Bill.

The Bill also provides the central assessment with powers to require others to provide the unit with information.

Under the Bill, a person is provided with a unique identifier and once the assessment is done, the central assessment unit can then issue a prohibition notice, stating the person is a prohibited person, thereby banning the person from working or volunteering with children (as defined under the Bill).

The Bill provides that it is an offence for a prohibited person to work or volunteer with children, and it is also an offence to employ or allow a person to volunteer with children if they are prohibited.

Under the Bill, it is also an offence to employ a person or allow them to volunteer with children unless they have undertaken a working with children check in the last five tears, and an offence for any person to work or volunteer with children without having undertaken a working with children check in the last five years.

It is also an offence for any person to falsely represent that a working with children check has been conducted in relation to the person (or any other person) within the preceding 5 years that the person (or any other person) is not prohibited from working with children. In addition,

When a working with children check is undertaken, the person will be given a unique identifier. Using that unique identifier and a person's full name and date of birth, it will be possible for a person to determine whether a working with children check has been undertaken in the last five years and whether the person was prohibited from working or volunteering with children.

Under the Bill, certain people are excluded from having to undertake a working with children check. This includes members of South Australia Police and the Australian Federal Police, as well as any person who employs a child or who supervised a child in employment where the work undertaken is not child-related.

The Bill sets out the steps an employer must take if employing a person to work with children. The terms in the Bill are defined in such a way that these provisions also apply to any organisation that is engaging a person to volunteer with children.

The Bill requires the employer to obtain from the person their full name, date of birth and the unique identifier issued to them by the central assessment unit when they undertook the working with children check.

Using this information, the employer then verifies in accordance with regulations that a working with children check has been conducted in the last five years in relation to the person and that the person has not been prohibited from working with children.

When undertaking this verification, the employer will also need to provide the central assessment unit with the name, address and telephone number and email address of the business or organisation at which the person will be employed (or will volunteer) and the name and contact details of the person who undertook the verification.

The employer also becomes liable to provide certain information to the central assessment unit about the person if they become aware of it.

In addition, a person who has been issued with a unique identifier is also required to provide the central assessment unit with certain information, such as whether they become prohibited from working with children interstate or whether they become a registered offender under the Child Sex Offenders Registration Act 2006 (SA).

In addition to employer being able to verify that a person has undertaken a working with children check and is not a prohibited person, any person who is responsible for a child (for example, a parent) in respect of whom child-related work is, or is to be, performed by a person may also require the person to provide their full name, date of birth and unique identifier. The responsible person can then access the records management system to verify that a person has undertaken a working with children check and is not a prohibited person.

The central assessment unit can also undertake a working with children check about a person at any time, meaning that if information comes to the attention of the central assessment unit about a person to whom a unique identifier has been issued, the central assessment unit can re-assess the person and if appropriate, issue a prohibition notice.

Through the contact information that the employer (or organisation) provides, the central assessment unit can then also comply with obligations under the Bill the unit has to notify known employers if the person has been prohibited from working with children, if more than five years has passed since the person's most recent working with children check was conducted or whether their unique identifier has changed.

The effect of this Bill is to significantly improve how people in South Australia, who wish to volunteer or work with children, are screened.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

Part 2—Objects, principles and guidelines

3—Object and principles

This clause sets out the objects of the Act - to minimise the risk to children posed by persons who work with them - and sets out principles that must be taken into account in connection with the administration, operation and enforcement of the measure.

4—Guidelines

This clause enables the Minister to publish guidelines for the purposes of the measure.

Part 3—Interpretation and provisions relating to application of Act

5—Interpretation

This clause defines terms and phrases used in the measure.

6—Meaning of child-related work and work with children

This clause defines what working with children means in terms of the operation of the measure.

7—Meaning of employed, employee and employer

This clause defines what these terms mean for the purposes of the measure, in particular by extending the terms to include self-employed person and volunteers etc.

8—Meaning of assessable information

This clause sets out the information to be assessed in the course of a working with children check.

9—Meaning of excluded person

This clause sets out the definition of excluded persons, being persons to whom certain provisions of the measure do not apply.

10—Criminal intelligence

This clause enables certain information classified by the Commissioner of Police to not be disclosed.

11—Procedural fairness

This clause provides that the central assessment unit and the Registrar, in exercising powers or performing functions under the measure, need not afford a person procedural fairness except where the regulations provide otherwise.

12—Interaction with other Acts and laws

This clause clarifies the interaction between the measure and other Acts and laws.

13—Act to bind, and impose criminal liability on, the Crown

This clause expressly provides that the measure can impose criminal liability on the Crown, as required under the Acts Interpretation Act 1915.

14—Exemptions

This clause confers on the Minister the power to exempt a specified person, or a specified class of persons, from the operation of the measure. However, subclause prevents exemptions from being granted to certain persons.

Part 4—Restrictions on working with children

Division 1—Persons who cannot work with children

15—Prohibited persons not to work with children

This clause defines who are 'prohibited persons' for the purposes of the measure.

The clause prohibits those persons from working with children, and creates offences for those contravenes the provision.

Similarly, an employer who employs a prohibited person also commits an offence.

16—Working with children without current working with children check prohibited

This clause creates an offence for a person to work with children if the person has not had a working with children check conducted in the preceding 5 years.

Division 2—Steps employers must take in relation to employing person

17—Steps employers must take before employing person in prescribed position

This clause prescribes a series of steps that must be taken by an employer before they employ a person in a position in which they may work with children. The steps are intended to verify that the person is not prohibited from working with children.

An employer who contravenes the proposed section is guilty of an offence.

18—Employer to ensure working with children check conducted at least every 5 years

This clause requires an employer to verify that working with children checks are conducted in respect of their employees, and that those employees are not prohibited persons, with an offence committed by those who do not do so.

19—Employer to advise central assessment unit of certain information

This clause requires employers of people employed in positions in which they may work with children to notify the central assessment unit if they become aware of the matters specified in subclause (1), with an offence committed by those who do not do so.

Part 5—Working with children checks

Division 1—Central assessment unit

20—Central assessment unit

This clause requires a central assessment unit to be established.

21—Functions

This clause sets out the functions of the central assessment unit.

22—Registrar

This clause requires a Registrar of the central assessment unit to be appointed, and makes procedural provision accordingly.

23—Powers of delegation

This clause is a standard delegation power.

24—Evaluation of central assessment unit

This clause requires the Minister to evaluate the performance of the central assessment unit, with the scheme for doing so to be set out in the regulations.

Division 2—Working with children checks

25—Working with children checks to be conducted by central assessment unit

This clause provides that working with children checks can only be conducted by the central assessment unit.

26—Nature of working with children check

This clause explains the nature of a working with children check, providing that the check consists of the central assessment unit assessing assessable information relating to a person against the prescribed risk assessment criteria to determine whether or not the person poses an unacceptable risk to children.

27—Application for working with children check

This clause sets out how a person can apply for a working with children check.

28—Working with children check to be conducted even if application withdrawn

This clause requires a working with children check to be conducted once an application is made, even if the application is subsequently withdrawn.

29—Unique identifiers

This clause requires the central assessment unit to issue a unique identifier to the persons specified in the clause. That identifier is used to identify the person for the purposes of the measure, including inspecting the records management system.

30—Central assessment unit may conduct additional working with children checks

This clause empowers the central assessment unit to conduct working with children checks on persons despite no application having been made.

31—Central assessment unit may seek external advice

This clause enables the central assessment unit to seek professional advice in respect of determinations under the measure (for example, psychological or legal advice).

32—Issue of prohibition notice

This clause requires the central assessment unit to issue a prohibition notice to each person who is to be prohibited from working with children (the issue of the notice is the vehicle for prohibition under proposed section 15).

33—Revocation of prohibition notice

This clause sets out the limited circumstances in which a prohibition notice may be revoked by the central assessment unit, and makes procedural provision in respect of applications for such revocations.

Division 3—Records management system

34—Records management system

This clause requires the Registrar of the central assessment unit to establish and maintain a records management system for the purposes of the measure.

The clause sets out requires for the form and content of the system.

35—Inspection of records management system

This clause sets out how, and by whom, the records management system may be inspected, and requires that evidence of inspection be provided to a person who inspects the system.

Division 4—Information gathering powers etc

36—Registrar may require information from public sector agencies

This clause confers on the Registrar the power to require public sector agencies to provide to the Registrar certain information in its possession. The clause makes provision for any failure to comply on the part of agencies.

37—Registrar may require information from other persons

This clause confers on the Registrar the power to require specified persons to provide to the Registrar certain information in his or her possession. Failure to comply with a requirement constitutes an offence.

38—Court to provide notice of certain findings of guilt to central assessment unit

This clause requires a court that finds a person guilty of a prescribed offence to provide prescribed information relating to the finding of guilt to the central assessment unit.

39—Commissioner of Police to provide information to central assessment unit

This clause requires the Commissioner of Police to provide to the central assessment unit prescribed information relating to any person who is charged with a prescribed offence.

40—Certain persons to advise central assessment unit of changes in information

This clause requires a person to whom a unique identifier has been issued to notify the central assessment unit if any of the specified events occurs, with an offence created for those who refuse or fail to comply.

41—Central assessment unit to advise employer of certain information

This clause requires the central assessment unit to notify employers of persons if the person becomes a prohibited person, or more than 5 years have passed since the person's last working with children check, or the person changes their unique identifier.

42—Central assessment unit to advise prescribed persons and bodies of certain information

This clause requires the central assessment unit to notify certain persons and bodies if a person relevant to the person or body becomes a prohibited person, or more than 5 years have passed since the person's last working with children check, or the person changes their unique identifier. This is intended to include regulatory and licensing bodies.

Part 6—Review of decisions by South Australian Civil and Administrative Tribunal

43—Review of decisions by South Australian Civil and Administrative Tribunal

This clause confers jurisdiction on the SACAT in respect of the review of certain reviewable decisions under the measure.

Part 7—Miscellaneous

44—Parents etc may require person to provide unique identifier

This clause requires a person who is performing, or is to perform, child-related work in respect of a child to produce their unique identifier, or to verify that they are not a prohibited person electronically, to the person responsible for the child at the request of that person. An offence is created for a contravention of the proposed section.

45—Misrepresentations relating to working with children check

This clause creates offences for persons who falsely represent certain matters.

46—False or misleading statements

This clause creates an offence for a person to knowingly make a false or misleading statement in information provided under the measure.

47—No obligation to maintain secrecy

This clause provides that obligations to maintain secrecy, or other restrictions relating to disclosure of information, under other Acts or laws do not apply to the disclosure of information to the central screening unit under this measure, other than an obligation or restriction designed to keep the identity of an informant secret.

48—Limitation of liability

This clause confers immunity from liability in respect of an act or omission in good faith in the exercise or discharge, or purported exercise or discharge, of a power, function or duty conferred or imposed by or under the measure.

49—Confidentiality

This clause is a standard confidentiality provision restricting the disclosure of confidential information.

50—Victimisation

This clause makes provision for where a person who causes detriment to another on the ground, or substantially on the ground, that the other person or a third person has provided, or intends to provide, information under the measure, allowing the person to choose to recover in tort or through the Equal Opportunity Act 1984.

51—Service

This clause sets out how notices etc under the measure are to be served on a person.

52—Evidentiary provision

This clause provides that certain matters may be proved in legal proceedings by way of allegations in the information or certificate signed by the Registrar.

53—Regulations

This clause is a standard regulation making power.

Debate adjourned on motion of Hon. D.W. Ridgway.