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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

Introduction and First Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Industrial Relations, Minister for Business Services and Consumers) (15:35): Obtained leave and introduced a bill for an act to amend the Children's Protection Act 1993, the Disability Services Act 1993 and the Spent Convictions Act 2009. Read a first time.

Second Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Industrial Relations, Minister for Business Services and Consumers) (15:35): 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.

It is important that government does everything possible to promote the safety and well-being of the most vulnerable in our community. Children, and adults with physical disabilities or mental impairment, are among the most vulnerable. Parents, care-givers and family members should be confident that organisations and businesses providing services to children and vulnerable adults are taking all reasonable steps to ensure the safety and well-being of those children and vulnerable adults. Further, parents, care-givers and family members should be confident that unsuitable people are not providing those services. Screening of people who work or volunteer with children and vulnerable adults is a significant preventative measure.

I am proud to say that it was this Government that first introduced legislative measures in the Children's Protection Act 1993 for the screening of those who work or volunteer with children in 2005 as part of the Keeping Them Safe reform program. This followed the landmark review initiated by this Government into our child protection system, conducted by former Supreme Court justice Robyn Layton. These provisions were later enhanced in 2009 in response to the recommendations arising from the Mullighan Inquiry. This was another landmark inquiry instigated by this Government to learn from the mistakes of the past, by shining a light on child sex abuse and providing a forum for so many affected people to tell their stories and commence the healing process.

More recently, this Government signed the Intergovernmental Agreement for A National Exchange of Criminal History Information For People Working With Children (IGA). It is designed to facilitate the exchange of information with other jurisdictions for the purposes of screening those that work or volunteer with children.

This Government remains committed to ensuring that the legislative framework in South Australia for screening those who work or volunteer with children is an effective preventative measure that contributes to safety and well being, and that similar requirements are in place for those who work or volunteer with vulnerable adults. It is paramount that the legislative arrangements in this State work in tandem with those in other jurisdictions in order to prevent unsuitable people from escaping the screening safety net. We are also concerned to ensure that the arrangements for screening public sector employees in general are adequate for the benefit of the community and to protect the interests of the government as an employer.

It is for these reasons that this Government has launched a wide-ranging review into the screening arrangements in this State. The review is to be undertaken by a cross-government working group led by the Attorney-General's Department. The working group is to make recommendations to Cabinet about the screening of those who work or volunteer with children and vulnerable adults by December 2013. Recommendations about screening of public sector employees in general are to be made by July 2014. It will be necessary as part of the first tranche of the review, for the working group to examine the various legislative schemes in other jurisdictions for screening those who work or volunteer with children or vulnerable adults in order to make recommendations about what best suits South Australia.

The Government is introducing this Bill in tandem with the review because there are certain issues that can be, and should be, dealt with now. This includes giving full effect to the IGA.

Notably, the Bill introduces for the first time in this State a legislative framework to screen people that work or volunteer in the disability sector by amending the Disability Services Act 1993 and further enhances the existing arrangements in the Children's Protection Act 1993 for screening those that work or volunteer with children. It also amends the Spent Convictions Act 2009 to facilitate more robust screening of those that work or volunteer with children in accordance with our obligations under the IGA.

Amendments to the Children's Protection Act 1993

Currently, section 8B(1) of the Children's Protection Act 1993 makes it an offence for a responsible authority of an organisation to fail to ensure that before a person is appointed to or engaged to act in a prescribed position in the organisation an assessment of the person's 'criminal history' is undertaken. Similarly, section 8B(2) authorises the responsible authority of an organisation to undertake an assessment of a person's 'criminal history' at any time, in specified circumstances.

The Bill introduces an obligation to assess 'relevant history' instead of 'criminal history'. 'Relevant history' is defined broadly in the Act for the purposes of an assessment undertaken by a person or body authorised to do so under the regulations made under the Act. Presently, only the screening unit in the Department for Communities and Social Inclusion is so authorised. This amendment will explicitly permit a broad range of information to be taken into account by this screening unit—including information held by government agencies. Otherwise, 'relevant history' is defined to accord with criminal history information obtained from SAPOL or Crim Trac, as is presently the case for assessments undertaken by others. 'Findings of guilt' fall within the definition of 'relevant history' in any event. 'Findings of guilt' include convictions and other findings of guilt by a court, however described. However, the extent to which findings of guilt can be relied on will be subject to the Spent Convictions Act 2009 as amended by this Bill.

The Bill supports the use of this broad range of information by introducing provisions in the Children's Protection Act 1993 that authorise the disclosure of 'relevant history' information and other information to a person or body authorised under the regulations to undertake relevant history assessments, 'despite any other Act or law'. These provisions override any statutory or other prohibitions that may otherwise apply and obviate the need for consent to release of information where it might otherwise be an exception to a prohibition on disclosure. Privacy and confidentiality are addressed by extending the power of the Chief Executive to promulgate standards to be observed in dealing with information 'in connection with an assessment of a person's relevant history' and by extending the power to make regulations about confidentiality of information to information 'relating to, or obtained in the course of, an assessment of a person's relevant history'. This will facilitate corresponding amendments to the Chief Executive's Standards and the offence provisions for breach of confidentiality in the Children's Protection Regulations 2010.

The Bill clarifies the range of non-government organisations to which s8B of the Children's Protection Act 1993 applies by specifying organisations that provide 'cultural, entertainment or party services' and makes provision to include other organisations prescribed by regulation. The range of organisations to which the child safe environment and other obligations in section 8C apply, have similarly been amended. The Bill also makes provision for positions in government organisations that are currently not caught by the screening provisions in section 8B, to be designated as prescribed positions and subject to screening. This provides a legislative framework to ensure that staff developing policies and doing other work behind the scenes to enhance the safety and development of children, meet the same high standards as those in the same organisation on the front line.

The Bill includes a power to make regulations under the Children's Protection Act 1993 to require organisations to use a specified person or body to undertake assessments for the purposes of section 8B. This provision will be relied on to make regulations to mandate the use of the screening unit in the Department for Communities and Social Inclusion for assessments undertaken on behalf of government organisations and those funded by government. This will ensure consistency in the quality of assessments relied on by government organisations and NGOs and ensure that a broad range of information is relied on for those assessments.

The Bill introduces a new section 8BA in the Children's Protection Act 1993 in order to facilitate the screening of those that are not otherwise caught by section 8B. Section 8BA makes it an offence for a responsible authority of an organisation to which section 8B applies, to perform prescribed functions unless the person has undergone a national police check or an assessment of relevant history in the preceding three years. Sole traders, those in partnerships and volunteers who perform prescribed functions in circumstances where they have not been appointed to or engaged to act in a prescribed position in an organisation for that purpose, will be similarly caught by section 8BA. Significantly, section 8BA empowers parents, carers and guardians to take steps to protect their children by requesting a person to whom section 8BA applies to produce evidence that they have undergone a national police check or an assessment of relevant history in the preceding three years where they may perform or are performing a prescribed function for their child. Failure to comply will be an offence. This will enable parents, carers and guardians to vet prospective service providers and service providers that have already been engaged.

The Bill also supports any government contractual arrangements concerned with the protection of children that do not otherwise fall within the scope of the Children's Protection Act 1993, by enabling a person or body to be authorised to undertake assessments of a person's relevant history for prescribed purposes relating to the care and protection of children. This will permit the screening unit in the Department for Communities and Social Inclusion to be authorised to undertake assessments that arise from government contractual arrangements such as hire of a school hall by a person who is providing services direct to children.

Amendments to the Disability Services Act 1993

The screening provisions relating to those that work or volunteer in the disability services sector introduced in the Disability Services Act 1993 by the Bill, closely mirror the screening provisions in the Children's Protection Act 1993, taking into account the enhancements made by the Bill. This includes the introduction of an obligation to assess 'relevant history', which will permit a broad range of information to be taken into account where the assessment is undertaken by a person or body authorised under the regulations. These new provisions fill a legislative vacuum that currently exists in this sector, although screening has been imposed in the disability services sector for many years through employment conditions and contractual obligations.

Amendments to the Spent Convictions Act 2009

The Bill also amends the Spent Convictions Act 2009 to facilitate the operation of the IGA.

By way of a Memorandum of Understanding (MOU) signed by the States, Territories and the Commonwealth, the Council of Australian Governments (COAG) established an inter-jurisdictional exchange of criminal history information for people working with children, commencing with a 12 month trial. An independent evaluation of the trial, completed in March 2011, recommended the permanent continuation of this arrangement.

The IGA supersedes and replaces the MOU. South Australia is a party to the IGA and the Department of Communities and Social Inclusion screening unit has also been accepted for inclusion as an authorised screening unit under this IGA.

To facilitate South Australia's involvement, amendments are required to the Spent Convictions Act 2009.

Under the IGA, the parties agree that the nominated screening units in each state will exchange the following information for the purpose of screening people prior to them undertaking child-related work:

Convictions, which includes any recorded or un-recorded conviction or finding of guilt, and which also includes a conviction for which a pardon has been granted; and

Expanded Criminal History Information, which includes spent convictions.

This cannot occur under the Spent Convictions Act 2009 as currently drafted. The required amendments are as follows.

Schedule 1 provides that the provisions contained in Part 3 Division 1 of the Spent Convictions Act 2009, which state that spent convictions do not have to be disclosed and are protected, do not apply in relation to a number of 'excluded purposes'. The Bill therefore creates a new exclusion in Schedule 1 so that any prescribed screening unit for a prescribed purpose can take into account spent convictions. Regulations can then be drafted to prescribe the relevant screening units and purposes.

Presently, section 13 of the Spent Convictions Act 2009 states that in cases where a court had declined to record a conviction, a conviction has been quashed, or a conviction has been pardoned, those convictions are considered to be immediately spent, and cannot be disclosed even for an excluded purpose.

In addition, the situation is further complicated if an application is successful under section 13A and a qualified Magistrate orders that the spent conviction cannot be disclosed even if the criminal history check in the circumstances spelt out in Part 6 of Schedule 1 of the Spent Convictions Act 2009.

Consequently, the Bill makes amendments to the Spent Convictions Act 2009 so that a prescribed screening unit can be provided with and take into account the following spent convictions for the prescribed purpose;

a conviction for an offence when the person has been granted a pardon for the offence;

a conviction that has been quashed;

a finding of guilt or finding that offence is proven and where no conviction is recorded against the person;

a conviction for an offence where a Qualified Magistrate has made an order under section 13A.

The Bill makes amendments so that any prescribed screening unit using the information for the prescribed purpose (for example, of screening for working with children) will be required to treat these spent convictions differently than other convictions and spent convictions. It is important that the will of the court (in not recording a conviction or ordering a conviction quashed), the action of the Crown in granting a pardon in the exercise of the Royal Prerogative, or a decision of a Qualified Magistrate is respected.

Under the Bill:

when a prescribed screening unit is provided the above information, the screening unit is only empowered to use this information for the prescribed purpose; and

when the prescribed screening unit is using the spent conviction for a prescribed purpose;

the screening unit must not take into account this information unless the screening unit is of the opinion that there are 'good reasons' in the circumstances of the particular case for doing so; and

if the screening unit finds such 'good reasons', in taking the information into account, the screening unit must give strong weight to the following facts (where applicable):

the person has been pardoned and the conviction is considered to be spent for all purposes under the Spent Convictions Act 2009;

the convictions has been quashed and the conviction is considered to be spent for all purposes under the Spent Convictions Act 2009;

no conviction was recorded against the person and the conviction is considered to be spent for all purposes under the Spent Convictions Act 2009;

a qualified Magistrate has made an order under section 13A with respect to the conviction; and

the screening unit must provide written reasons for any decision to use the information adversely to the person the subject of the information, and provide those reasons to that person.

This Government is committed to taking whatever measures are appropriate to ensure that the arrangements in this State for screening those that work or volunteer with children and vulnerable adults remain effective well into the future, as part of a broader protective framework. It is for this reason that we look forward to the outcome of the review. In the meantime, the measures proposed in this Bill significantly improve the protection of our children and vulnerable adults.

I commend this Bill to the House.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Children's Protection Act 1993

4—Amendment of section 8A—General functions of the Chief Executive

This clause amends section 8A of the principal Act to clarify that the Chief Executive may make standards in respect of information obtained in connection with an assessment of a person's relevant history, including assessments other that those required under section 8B.

5—Amendment of section 8B—Powers and obligations of responsible authority in respect of relevant history

This clause amends section 8B of the principal Act, extending the scope of the section from criminal history to relevant history, which is defined in subsection (8) as amended. The clause makes other amendments consequent upon that extension, as well as changes to the organisations to which the section applies and protects bodies who disclose information to those persons conducting assessments.

6—Insertion of section 8BA—Obligations of certain performers of prescribed functions in respect of relevant history

This clause inserts new section 8BA into the principal Act. The new section requires certain direct providers of services to children to have an assessment of their relevant history undertaken, or to obtain a criminal history report prepared by South Australia Police or CrimTrac, within the 3 years prior to performing a prescribed function. Evidence of that check must be produced on the request of specified people. In both cases, failure to comply with the subsection amounts to an offence, with a maximum penalty of $10,000.

7—Amendment of section 8C—Obligations of certain organisations

This clause makes a consequential amendment to section 8C of the principal Act.

Part 3—Amendment of Disability Services Act 1993

8—Insertion of sections 5B and 5C

This clause inserts new sections 5B and 5C into the principal Act.

The new section 5B provides for the undertaking of assessments of relevant history in respect of people working etc with disabled persons in a way that is consistent with the requirements under the Children's Protection Act 1993 relating to those working etc with children.

New section 5C requires certain prescribed disability service providers to have an assessment of their relevant history undertaken, or to obtain a criminal history report prepared by South Australia Police or CrimTrac, within the 3 years prior to performing a prescribed function. Evidence of that check must be produced on the request of specified people. In both cases, failure to comply with the subsection amounts to an offence, with a maximum penalty of $10,000.

9—Substitution of section 10

This clause substitutes section 10 of the principal Act, inserting a standard provision in respect of the regulation making power.

Part 4—Amendment of Spent Convictions Act 2009

10—Amendment of section 13—Exclusions

This clause amends section 13 of the principal Act to provide that subsection (2) does not apply in relation to the operation of clause 9A of Schedule 1.

11—Amendment of section 13A—Exclusions may not apply

This clause inserts new subsection 13A(8) to provide that an order under that section does not limit the operation of clause 9A of Schedule 1 in any respect.

12—Amendment of Schedule 1—Exclusions

This clause inserts new clause 9A into Schedule 1 of the principal Act, setting out exclusions from Part 3 Division 1 of the principal Act, and making related provisions, in respect of prescribed screening units, as defined in the clause.

Debate adjourned on motion of Mr Gardner.

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