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House of Assembly - Fifty-Second Parliament, Second Session (52-2)
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STATUTES AMENDMENT (ASSESSMENT OF RELEVANT HISTORY) BILL

Committee Stage

In committee.

(Continued from 30 October 2013.)

Clause 3.

Mr PISONI: If you recall, minister, we went through a range of general questions. Is it a requirement that the Department for Education, for example, is informed if the Family Court makes a CARL report regarding a teacher now and, if it is not, will it be required with these changes to the legislation?

The Hon. J.R. RAU: I am sorry, I did not get the first bit of it.

Mr PISONI: Is the Department of Education informed if the Family Court makes a CARL report regarding a teacher under the current legislation and, if not, will they be after these amendments are included in the bill?

The Hon. J.R. RAU: I have some answers to questions which may or may not be sufficient for the member for Unley's purposes and, if they are not, I again issue the invitation to talk with the honourable member between here and elsewhere. This is the advice I have received in respect of these Family Law matters which we started talking about yesterday.

Under section 67Z of the Family Law Act 1975 if a person alleges in proceedings that a child to whom the proceedings relate has been abused or is at risk of being abused, the person must file a notice known as a Form 4 with the Family Court. Once filed, the registry manager must notify the prescribed child welfare authority; in South Australia this is Families SA. The Form 4s are forwarded by the registry manger to Families SA Crisis Response Unit.

Mr PISONI: Can I just have that very first bit again; the person who makes allegations has to make the complaint?

The Hon. J.R. RAU: No, this is only my advice on this, which is this. If a person makes an allegation about child abuse or risk of abuse, the person must file a notice with the Family Court, as prescribed under the Family Law Act, which is known as a Form 4.

Mr PISONI: The person making the allegation?

The Hon. J.R. RAU: Yes. The exact wording I have got here is, 'If a person alleges in proceedings that a child to whom the proceedings relate has been abused,' so it is a person in the context of proceedings involving a child. I guess that may or may not be the applicant. It might, conceivably, be a witness, I suppose. The member for Bragg might have a better idea about this than me.

The context is this. First, in the context of a family law action; secondly, the family law action involves a child or allegations in respect of a child; and, in those circumstances, the Family Law Act requires this Form 4 to be filed. Once that Form 4 is filed, the Family Court registry must notify the prescribed child welfare agency, which in South Australia means Families SA. These apparently are forwarded to the manager in Families SA called Families SA Crisis Response Unit.

The Crisis Response Unit assesses the reported child protection concerns against provisions in the South Australian Children's Protection Act 1993. So, they receive a piece of paper from the Family Court and they then assess that against our child protection legislation. They apply a structured decision-making assessment to determine the level of response required. So, that response assessment is done within that unit. Details of the notification and outcome of the assessment are recorded on Families SA Connected Client Case Management System, called C3MS.

Apparently there was another question about what happens in DCSI when it receives a low-level allegation, as opposed to a very serious one. I am advised that notifications are assessed for investigation as tier 1, 2 or 3. All notifications assessed as tier 1 are investigated by Families SA. Outcomes of all matters that are investigated are recorded in the Families SA Connected Client Case Management System (C3MS).

The Children's Protection Act recognises the family as the primary means of providing for the nurture, care and protection of children whenever it is safe to do so. Families SA will not intervene where proper arrangements exist for the care and protection of the child and the matter of the apparent abuse or neglect has been or is being adequately dealt with (for example, the alleged perpetrator no longer has access to the child) or other appropriate agencies are involved and supporting the family. Where the person alleged to have caused the harm is not a member of the child's family, Families SA will refer the intake to SAPOL. Similarly, if allegations against a family member are likely to amount to a criminal offence, the intake will be referred to SAPOL.

There was a further question about what happens if there is a baseless allegation. I am advised that the Crisis Response Unit screens reported child protection concerns against, as I said, the provisions of the Children's Protection Act and applies decision-making assessments. Details of the notification and the outcome of the assessment are recorded in that C3MS system. This includes, where applicable, a record that Families SA has determined that there are no child protection concerns.

Where the allegations meet the criteria for a statutory child protection response and Families SA social workers assess the circumstances of the child and their family to determine if the child has been harmed, an outcome of this assessment will also be recorded on C3MS. This includes situations where no finding of abuse or neglect is made.

I am further advised that when making an assessment for the purposes of section 8B of the Children's Protection Act, DCSI Screening Unit currently considers information specified in regulation 8 of the Children's Protection Regulations 2010—in other words, criminal history information—and information on DECD and DCSI databases including child protection information. The information on these databases is accessed by obtaining generic consent from the person to be screened to access government records. Applicants are afforded natural justice in relation to criminal history where that criminal history is determined relevant in relation to the inherent requirements of the role identified on the screening application form.

Applicants are afforded natural justice during the screening process in relation to non-criminal history allegations made against them. If the noncriminal history allegations are unknown to the applicant or unsubstantiated, the screening unit would not rely on that information in its risk assessment. Abuse that is reported as part of criminal history or through the child protection database and relied on for the purposes of an assessment would be assessed in accordance with the Child Safe Environment standards. It may be deemed a low-level risk because, for example: it happened more than 10 years ago; there is no pattern; the court penalty was minor; and/or there has been no reporting since.

There were then questions about how the process goes on, and I am advised that with assessments by DCSI Screening Unit in government organisations, the common law rules of natural justice have not been ousted by the Children's Protection Act or the bill and would apply to an assessment by DCSI Screening Unit and presumably any other authorised person or body. It would also likely apply where a public organisation undertook the assessment itself.

In the case of a public agency that takes the DCSI Screening Unit assessment, which encompasses the collection and consideration of information, then a conclusion and recommendation, and either accepts or rejects the assessment for the purposes of engaging a particular person in a particular position, the rules of natural justice will apply to that decision. In determining the extent or content of procedural fairness that the engaging agency will need to afford to the person affected, that agency could take into account what procedural fairness the screening unit had afforded to the same person.

In either case, the options for review for a person affected in these instances depend on the context. For a person seeking to be employed by a government agency for the first time or seeking to be accepted as a volunteer, then the person could make a complaint to the Ombudsman as either decision could be characterised as 'an administrative act' for the purposes of the Ombudsman Act.

Alternately, the person could seek judicial review of the decision, this being clearly a more expensive option. Where the assessment relates to a person who is currently employed in the public sector and has unsuccessfully applied for a new position or whose employment has been terminated because of the assessment, then there will be various rights of review of the decision of the engaging agency under the relevant legislation (which is probably the Public Sector Act) for persons employed under that act. I assume if we are talking about the education service, it would be under the Education Act and if it was a policeman, it would be under the Police Act, and so on.

It is unlikely that the rules of natural justice will apply to a private organisation making the assessment because they are not caught in this public aspect of things. In the case of an assessment for the purposes of employment, the Australian Human Rights Commission Act 1986 applies and regulation 4 of that includes 'criminal record' as one of the prohibited grounds for distinction or exclusion. 'Criminal record' is essentially what is recorded and what is released on official police records and can include charges not proven, investigations, findings of guilt in non-conviction, and convictions that were later quashed or pardoned.

Under section 31 of the commonwealth act of 1986, the commission has the power to investigate and conciliate any complaint of discrimination which includes indirect discrimination. Indirect discrimination can occur when an apparently neutral condition, required of everyone, has a disproportionately harsh impact on a person who has a criminal record. The commission can make recommendations to the parties; however, it has no power to compel an employer, or a prospective employer, to accept recommendations made after a conciliation.

The commission can make a report to the federal Attorney-General if the employer does not implement such recommendations. The commission has issued guidelines for the prevention of discrimination on the basis of criminal record. These guidelines include No. 8, which I quote:

If an employee takes a criminal record into account in making employment decision, in most cases the employer should give the job applicant or employee a chance to provide further information about their criminal record, including, if they wish, details of the conviction or offence, the circumstances surrounding the offence, character references or other information, before determining the appropriate outcome in each case.

The commonwealth act also applies to employment decisions of South Australia's public sector agencies. In respect of volunteers in private organisations, there is authority indicating that clubs, and so also professional organisations, must afford members a limited version of natural justice before they are expelled from membership. It seems only logical that this would also be the case for persons applying to become a member. However, I have not been provided with any authority directly on this point.

Further, it would be a question of fact in each case whether a person seeking to volunteer at a club was also seeking membership. It may or may not include membership; but, the two often do not go together. There may be people volunteering for an outfit but not necessarily wishing or, indeed, ever becoming a member.

It is far from certain whether this principle would be applied simply to a person seeking to volunteer with a club. Then again, I have got some comments here about how natural justice works in practice, but I am not sure whether I might be starting to just go too far with all of this. I am happy to keep going if people wish me to, but I am conscious that might be giving you a lot of information that is not particularly helpful.

Mr Pisoni: How much more have you got?

The Hon. J.R. RAU: There's a couple more pages of it.

Mr Pisoni: Insert it in Hansard without reading it.

The Hon. J.R. RAU: I don't think I am allowed to; that's the problem.

The CHAIR: No.

The Hon. J.R. RAU: I would be happy to. Shall I just keep reading and then see if at the end of this you are happy?

Mr Pisoni: Yes, alright.

The Hon. J.R. RAU: I don't want to waste people's time, but anyway—

Mr Gardner: It's good stuff.

The Hon. J.R. RAU: Okay. This is about the DCSI screening unit. In accordance with standard No. 6 'procedural fairness of the standards for dealing with information obtained about the criminal history of employees and volunteers who work with children', issued by the chief executive, pursuant to section 8A of the Children's Protection Act 1993, applicants are provided with an opportunity to respond to any information being accessed by the unit through telephone, face-to-face interview, or via mail. The unit will write to the applicant inviting them to provide further information. An applicant may choose to respond via email, letter or over the phone, or come to the unit for a face-to-face interview. Applicants may also bring a support person with them if they wish to do so.

Screening by the DCSI screening unit is already generally government practice and mandated in funding agreements with non-government agencies in receipt of government funds. No information is presently to hand about how natural justice works in practice if a government or private organisation undertakes its own assessment. Who receives the result of the screenings? If no risk has been identified the applicant's employer will receive notice by email of the outcome of the positive assessment; that is, the employer will be notified that the applicant has been cleared for child-related paid or volunteer work. The applicant will also be provided with a letter from the screening unit advising that they have been cleared for child-related paid or volunteer work.

Where an applicant has been assessed as low risk, relevant information concerning the identified risk may be shared with an authorised officer of the requesting organisation—the employer, in other words, except for volunteers, of course, but you know what I mean—but only where it is deemed necessary for the employer to manage a low level risk that may have been identified in the assessment process. This is done with the consent of the applicant.

If the employer is prepared to employ the applicant and manage the low level risk, DCSI's screening unit provides a specific clearance by letter to the applicant advising the applicant that they have been cleared for a specific role with a specific organisation in relation to their child-related employment screening. An email is sent to the requesting organisation confirming the specific clearance. Where an applicant is assessed as having low risk and the employer does not wish to employ the applicant, it is the responsibility of the employer to notify the applicant. The applicant does not receive any notification from DCSI Screening Unit and the assessment is marked as 'not cleared'.

Applicants assessed as a low to medium risk may fall into specific clearance categories. In these instances, the same process applies as above. Where the risk is considered medium to high, the applicant is likely to be 'not cleared'. In these instances, the screening unit will advise the authorised officer of the identified risk and the determination of 'not cleared'. The employer is responsible for the final determination with regard to engaging the applicant or not and of advising the applicant if they have been successful or not.

The screening unit does not contact the applicant where they have been determined 'not cleared'. The screening unit notifies the requesting organisation confirming the outcome of 'not cleared'. High-risk applicants would not be cleared. The employer is advised of the risk identified and is responsible for the final determination with regard to engaging the applicant or not and advising the applicant if they have been successful or not. The screening unit does not contact the applicant where they have been determined as 'not cleared'. 'What is the status of a governing council?' Is that one you want to go to?

Ms CHAPMAN: Yes.

The Hon. J.R. RAU: This is all as I have been advised, and some of this has come from questions that have been asked in briefings before. Government schools are established pursuant to section 85 of the Education Act. Where the school's council is constituted as a governing council, its constitution must include that the school is jointly responsible with the principal for the governance of the school, and it sets out functions that it must perform.

Under section 83 of the Education Act, a school governing council is a body corporate and subject to the Education Act, and its constitution and administrative instructions are issued by the minister. It has all the powers of a natural person that are capable of being exercised by a body corporate, including the power to enter into contractual relationships. A school governing council is not an agency or instrumentality of the Crown but is a public authority for the purposes of the State Procurement Act. As such, the governing council must ensure that goods and services are procured in accordance with the State Procurement Board's policies and procedures.

Does a school principal have authority to enter into contracts? The answer, I am advised, is that school principals and preschool directors have procurement delegation up to $220,000, inclusive of GST, for goods and services, and $165,000, including GST, for minor construction works. Examples of contracts entered into by governing councils may include contracts for employment of non-teaching staff and other matters necessary or incidental to carrying out functions under their constitution.

School principals and preschool directors typically enter into services and/or supply contracts with minor works construction contracts by way of purchase orders and/or simplified contracts using a DECD standard template. However, from time to time school principals and preschool directors enter into third-party agreements such as photocopier leases and other types of unknown contracts. School governing councils or principals do not enter into cleaning, major construction and breakdown maintenance contracts. Contracts of these types are managed by DECD and/or DPTI.

What is the status of the OSHC worker? The OSHC contract is a tri-party agreement between the governing council, the minister and the third-party provider. OSHC services are established on DECD sites but are operated by school governing councils, third-party commercial providers or not-for-profit OSHC providers. OSHC workers are employees either of the governing council or of the third-party providers where the service is not for profit or commercial. Governing councils operate OSHC services that have legal liability and accountability for governing council employees. There is a question here about Pinnacle. Does that ring a bell with anybody?

Mr Pisoni: Yes, it came out of the briefing.

The Hon. J.R. RAU: Okay. Pinnacle Education is a private consortium that the state had entered into a 30-year Public Service-private partnership (PPP) contract with to finance, design, build and service six new schools in metropolitan Adelaide. Groundsmen positions are included in these services. Teachers are employed through DECD.

'Services' within Education Works' new schools contract refers to building and maintenance services, cleaning and management services, waste management services, pest control management services, utility management services, ground maintenance management services, fixed sporting and play equipment management services, security management services, janitorial and general porterage management services, ICT infrastructure management services, and catering management services.

These are provided by Pinnacle Education via a facility management contractor (Spotless) who engage people to perform the services. Each of the PPP schools has one or more Spotless staff based at the school who perform the services or manage the contractors to perform the services as required, and in accordance with the contract.

Pinnacle Education's obligations under the contract are that they must 'confer, consult and cooperate in dealing with any requirement of the state to implement the state's security policy and practices'. This includes a requirement that national criminal history record checks be obtained from all persons engaged or to be engaged in a worksite and all workers directly employed by the builder, all persons engaged in the services. In addition, if requested by the state, any person must undergo a security clearance at any level up to national security clearance—I would not have thought that is required too often, but anyway—under the state's auspices.

So, the next question is: how does that all work out for governing councils? I am advised that, pursuant to section 8B(1) of the Child Protection Act 1993, before a governing council of a government school engages non-teaching staff, OHS workers and so on, the council must ensure that the assessment of the person's criminal history is undertaken. Pursuant to section 8B(1), before a contractor provides a service, the managing authority of the contractor must ensure that an assessment of the person's criminal history is undertaken.

Pursuant to subsection (2), both the governing council and the managing authority of the contractor are also empowered to assess at any time the criminal history of a person already engaged in a prescribed position, or of an indirect service provider who is to carry out or is carrying out prescribed functions for the purposes of establishing or maintaining a safe environment for children.

The obligations and powers under 8B only arise where a person will or currently occupies or carries out a prescribed position or function. Contractors who, for example, attend school on an ad hoc basis under services or supply contracts and for the purposes of works or constructions do not occupy prescribed positions or carry out prescribed functions. Whether the obligations under 8B arise will turn on the particular circumstances.

Under the bill, the obligation, or power of a governing council or managing authority of a contractor will remain the same, except that an assessment of the person's relevant history is to be undertaken, instead of the criminal history—so, it is a change in terminology, but it is also a change in capture—and the range of services in respect of which the obligation or power arises will be expanded to include cultural, entertainment or party services.

The bill also introduces a new 8BA, which will prohibit the managing authority of an organisation contracted to the department or governing council from personally performing the services under a contract to which it applies unless in the preceding three years an assessment of their relevant criminal history has been undertaken, or they have obtained a criminal history report from SAPOL or CrimTrac. The person will be required to produce on request evidence that they have complied with these obligations.

The bill also extends the obligation or power to undertake assessments under 8B and 8BA to non-government organisations of a class prescribed by regulation. In other words, the provisions may apply by regulation even if a non-government organisation does not provide health, welfare, education, sporting or recreation, religious or spiritual, childcare, cultural, entertainment or party services to children, or partly to children.

A person who is already engaged to act in a prescribed position would not need to undergo a new screening under 8B(1) of the act or a screening under its equivalent in the Disability Services Act once the act commences. However, it is noted that standards promulgated under the Children's Protection Act proposed that an organisation conduct assessments of existing employees every three years.

Screenings have been imposed in the disability services sector for many years through employment conditions and contractual obligations. Under the power under 8B(2) in the Children's Protection Act, to screen a person already engaged in a prescribed position or an indirect service provider who is carrying out prescribed functions for the purposes of a child-safe environment will remain. An equivalent provision will be introduced into the Disability Services Act 1993 by this bill. Accordingly, it may be necessary for people already in an industry to undergo screening under these provisions once the act commences.

When the act commences, the obligations under 8BA of the Children's Protection Act and its equivalent in the Disability Services Act will come into operation. These provisions facilitate the screening of those who are not otherwise caught by 8B or its equivalent in the Disability Services Act. These provisions will prohibit sole traders and those in partnerships who are already in relevant industries and providing services direct to consumers from providing services unless they have undergone an assessment of relevant history or obtained a criminal history report.

As discussed, these provisions will also prohibit the responsible authority of an organisation from personally performing the functions to which 8B and its equivalent applies, unless in the preceding three years an assessment of their relevant history has been undertaken or they have obtained a criminal history report. Persons caught by 8BA and its equivalent will also be required to produce, on request, evidence that they have complied with these obligations.

Mr PISONI: Thank you very much, minister, for that extensive reply. Just one quick question based on your answers, if I may. A teacher must go through the registration process every three years where the criminal checks process starts again, so will this expansion proposed in this legislation occur from the next teachers' registration?

The Hon. J.R. RAU: That is my understanding, yes.

Mr PISONI: If they are not teachers—if they are other auxiliary workers on school sites, for example—are they required to have screenings every three years? I thought I heard that in your—

The Hon. J.R. RAU: That is my understanding, yes, but if they are already there, they do not immediately have to have one, but, in due course, because of the natural turnover, they will eventually, within three years, get to it.

Mr PISONI: Finally, on that point, my understanding is that under the Child Projection Act, if somebody is charged with a child sex offence, they have a legal obligation to tell their employer. Will they have a legal obligation to tell their employer if an activity of theirs has been reported that would be required to go onto the expanded report that this bill provides for? Would they be required to report that to their employer? Does that make sense?

The Hon. J.R. RAU: It does. My understanding from this is that, if the risk assessment in respect of that other activity—so it is not a conviction or something, it is another activity—is low and therefore a clearance is issued, then there is nothing for them to be concerned about. It would depend on the nature of the other information.

Mr PISONI: And if it is historical? If it is something that happened 10 years ago that was not covered by the legislation but is now covered by the legislation, would they be required to declare that?

The Hon. J.R. RAU: I would have to take some advice on that. My assumption is that this would not retrospectively impose an obligation to report something which is a historic matter, unless it came to the attention of somebody through some fresh agitation of it, but I can check that.

Ms CHAPMAN: I will be very quick because I do not wish to hold up the bill. I thank the minister for outlining a lot of information that has been provided, and we will look carefully at that. There seem to be three areas that he has outlined. One is the enormous number of places in government records, including databases, where information has been kept, and it ought to be clear that that means there is a lot of it out there. Given our initial concern as to unreliable or inaccurate evidence, it ought to be clear that there is a lot of it out there. If it is inappropriately used it could, of course, adversely affect someone's opportunity for employment or continuing employment.

The second area is to, I think, give us some reassurance that principles of natural justice will apply and that there are various remedies and appeals. We will certainly have a look at those. I think it is important that some of that be in the act, and that is something that we will be asking you to consider, probably in another place, because, as I say, we are not going to hold this up.

The third area is that it ought to be abundantly clear that in this bill the breadth of people who could now be captured by the obligation to be screened and to be able to provide the necessary consents and so on to gain access to information is also extraordinarily broadened, for not just those who are in the public service but also those in the private sector.

During the course of this debate, I was thinking particularly of some person in public life, I do not need to name them, who currently faces charges with respect to activity which is clearly captured by the current definition, let alone a new definition. If that person is successful in having the charges dropped or, in the alternative, is found not guilty of those charges, then that person is within the category of having relevant history recorded at least in the DPP, police files and possibly others.

I ask the Attorney to think about if that person were to apply for employment in the Public Service, if that person were to apply to either rejoin or join another political party, be in a club or be a volunteer who might have access to children's activity sub-branches within that, etc. These are all things that are relevant to this aspect. We are concerned about some of these matters. We may need to think about some amendments as it progresses in another place. So, with those few comments, I am happy for the bill to be read a third time.

Clause passed.

Remaining clauses (4 to 12) and title passed.

Bill reported without amendment.

Third Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Industrial Relations, Minister for Business Services and Consumers) (17:58): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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