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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

Second Reading

Adjourned debate on second reading.

(Continued from 26 September 2013.)

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (18:17): I rise to speak on the Statutes Amendment (Assessment of Relevant History) Bill. This was a bill introduced by the Attorney-General to amend the Children's Protection Act 1993, the Disability Services Act 1993 and the Spent Convictions Act 2009. Essentially, the basis for introducing this bill is presented as seeking to strengthen the legislative framework for screening individuals who work or volunteer with children, and to put similar measures in place for those who work or volunteer with vulnerable adults, through amendments to those acts, and also for those who work in the public sector more generally.

The Attorney-General wrote to each of the members of parliament last week advising that, as part of the government's ongoing commitment to safe communities for all South Australians, they were taking steps to ensure the legislative framework was effective, and essentially outlining and confirming their commitment to ensuring that, as best as possible, all reasonable steps are taken to ensure that whatever screening processes we have are at their most effective to promote the safety and wellbeing of children and vulnerable persons.

I think it is fair to say that the development of legislation in this area to provide for screening at all has taken place over some years. It has been the subject of significant recommendations from a number of inquiries under this government. That has included Robyn Layton QC's report in respect of children, the Maurine Pyke QC report in respect of domestic violence which had a number of recommendations, and most notably for members of the parliament the Royal Commission into Institutional Responses to Child Sexual Abuse by the late Justice Mullighan who had the commission to investigate that tawdry history.

I think the Minister for Education and Child Development was then the minister in the department for families and communities, now known as Department for Communities and Social Inclusion. If I recollect correctly, she had the carriage of the most significant legislation under the Children's Protection Act to strengthen the screening processes. Essentially we went from not just a relatively select smaller group having to disclose a history of criminal conduct or offences for which there had been convictions but to a much broader group outside of the paid workforce, in particular to extend to volunteers and those who provide a service, whether they were paid or unpaid, for activities with children and young people.

Essentially it seems to me that the government is looking at the effectiveness of what screening process we have and also how that should be broadened to an even broader group and for the level of activity or offending conduct that would trigger their exclusion from having access to children in those activities.

As we understand it from the letter to us as members of parliament, the government has established this cross reference working group which arose out of the state government signing an intergovernmental agreement for the National Exchange of Criminal History Information for People Working with Children which sought to facilitate the exchange of information with other jurisdictions, specifically the purpose of screening those who work and volunteer with children. From that, this working group has been established. Apparently the working group is to make recommendations to the cabinet, firstly in relation to the screening of those who work or volunteer with children and vulnerable adults by December 2013, and secondly in relation to the screening of public sector employees generally by July 2014.

I do not have any explanation and I have not viewed in the second reading contribution anything that tells me why there should be a differentiation. I can only assume the government take the view that as they already cover a number of paid and volunteer persons within certain employment who have access to children that the extension from children to vulnerable adults is in itself already tested and that as a result of examples of where vulnerable adults, particularly those with a disability or frailty, have been exposed means that we really need to do something about that.

Other members of parliament, indeed other political parties, have also raised this issue, particularly those who are in vulnerable circumstances, whether it is in an aged care facility or whether that person has a disability that makes them vulnerable. They are vulnerable in the residential facilities they might live in, they are vulnerable in homes even with their family members or carers, they can be vulnerable in transit whether they are on a bus or in a taxi. To be perfectly frank, there have been some shocking cases which members would be familiar with where children and vulnerable adults, particularly in the disability area, have not just been taken advantage of but had the most obscene conduct perpetrated on them.

So clearly something needs to be done. The indication that it be by December 2013 really says to me that this is not new and that the only basis upon having a response by December 2013 is that the government needs to show pretty quickly that it actually is going to do something about this and that it is attending to it before it has to account to the people of South Australia as to why it has not done anything effective in this area before the next election.

It is disappointing to me. On the face of it, the purpose of advancing this legislation and going through this rather unusual process where the bill is tabled and introduced and having a review process (which all has to quickly come together before December for the cabinet to consider things) makes me very suspicious about the bona fides of the government on this bill and its intention regarding the protection of children.

I have said before and I will confirm in this debate that I do not in any way consider that members of the government, or indeed members of its departments, can be responsible for much of the unsavoury and unlawful conduct between persons and children and vulnerable adults. It is not the fault of ministers, it is not the fault of government departments but, sadly people (children and vulnerable adults) are victims of the sometimes obscene conduct of others. Sadly, there are people in the community who sometimes—even within the family group—perpetrate these obscenities on children and vulnerable people.

I do not suggest that any government should be responsible for that or that they should in any way make promises to eradicate it. What they are responsible for and need to be held to account is when they know about such conduct or know about the risk to a child or vulnerable person and they do not do anything about it.

Indeed, in the last year we have had almost daily exposure to circumstances in which children have been ill treated, sometimes on the premises of government-run entities, and there have been a variety of failures on the part of the government not only to properly protect a child from further inappropriate conduct but leaving other children at risk. We have had circumstances where that has occurred on school grounds. We have had circumstances where that has occurred in private facilities, and we have even had circumstances where children on school grounds are accused of committing offences such as accessing pornography falsely, paid money as some kind of compensation and expected to execute contracts with a confidentiality clause to keep things covered up and hush-hush.

We have had this extraordinary exposure just in this last year, which all too often comes on top of cases where children are left at risk in circumstances known to the authorities responsible for them in Housing Trust accommodation, for example, in school environments, sometimes in institutional care and sometimes on buses.

There is a litany of cases that we read about in reports, whether they are annual reports or whether they are from guardians or protectors of children in various forms that have been established by this government. We read about these sad cases all too often. I can recall having discussions with former ministers and contributing to debates in this house to say that we would introduce a screening process, as one of the tools to combat this type of behaviour, to try to help others exposed to the risk of that and to try to balance with that the importance of protecting people from unfairly being excluded from employment and/or the opportunity to volunteer.

I made the comment before, and I will again in this debate, that screening only for records of convictions for conduct that is illegal does not represent, obviously, the level of persons who actually commit offences. A record of conviction will only identify if that person has acted illegally and been caught, and one does not have to be overly bright to understand the fact that there are plenty of people out there who commit crimes, not just towards children and vulnerable adults, of course, but get away with it and continue to get away with it, and in this area, sadly, young victims are the legacy.

We have supported a screening process. We have even supported the expansion of that to volunteers because on this side of politics we have understood the significance of access to children and the examples that have been exposed, whether they are volunteers in care organisations for children, foster carers, or people who are in positions of trust in organisations that include children, such as a sporting club or a community activity.

There are many organisations in my local area, such as scout clubs and the like, that do magnificent things for children and give them a lot of opportunity and skills but, unfortunately, some people are attracted to these organisations because of their desire to get access to children. They then undertake their predatory approach to those children and we read about them in court reports, coronial inquiries and the like. We have to try and do the best we can to protect children.

This proposal though, which is supposed to have a corresponding review in tandem, is one which certainly goes considerably further. I will say that, in considering this rather significant extension, I have viewed again the proposals submitted by the Law Society of South Australia and I am going to refer to them, but I will say that whatever comes out as a result of this review of the screening process and the use of that process to exclude potentially bad people from innocents is just such a tiny piece of the puzzle.

As to how we might best manage these children, I would urge the government, because this is not an area that should be ignored, to place a bit more attention onto ensuring two things. One is that, when any agency or department is alerted, quite often through the mandatory reporting process, which is another mechanism by which we attempt to try and keep children at risk from becoming victims, they allocate the resources of competent people to ensure that these children are protected.

Secondly, they start to understand that, as ministers, they have a number of responsibilities—whether as police minister or the minister responsible for the education and protection of children. I think they are the two principal ones. There are other ministers whose departments have day-to-day interaction with children, obviously in higher education and training, in areas such as health, for example. These are particular areas and portfolios of ministerial responsibility for children and vulnerable adults.

We can have all the screening processes, all the detection processes and all the reporting processes in the world but they are not going to help much unless we can ensure that the resources of properly trained people are there to follow them through, otherwise it all goes to nought. This becomes another extension of the cheap option in the detection and prosecution of matters without actually achieving the protection that we are trying to achieve.

In light of that background, I refer to the concerns raised by the Law Society. The Attorney points out that the submissions received are from John White, as President, and he is soon to conclude his period of office as President of the Law Society. I place on the record my appreciation for his advice to members of the parliament, of all political persuasions, to assist us in our deliberations.

In particular, he wrote to the Attorney-General in response to a copy of this bill being emailed to him, I think probably only on the day that it was filed in the parliament, which is even more extraordinary; but, nevertheless, it was sent for their consideration. Their committees had a look at the matter and, last week, forwarded to the Attorney-General (with copies to, presumably, relevant parties in the debate on this matter) their concerns.

They really do target the question of the obligation of a responsible authority to assess a person who is being considered for a prescribed position in an organisation and to assess relevant history instead of criminal history. We are looking at the width of the definition of 'relevant history', the use of the information and the procedural fairness of what is to apply. Suffice to say that they acknowledge the importance of protecting children, which I think every member of this house would agree with.

What they do say, though, is that it is necessary that people are not inappropriately denied the right to work in particular environments, and it should not be overlooked here that we are not just excluding those who might want to volunteer to provide some comfort, service or support to a child or vulnerable adult and genuinely have that intention. It is a shocking waste, of course, if we throw out some well-intentioned and good people from contributing to that much-needed service, even in a voluntary capacity; but I think it is heightened if we specifically set the thresholds too high and the definitions too wide if it specifically denies someone a right to employment in a particular environment.

They are my comments and I hope, in the translation of this, that they will be noted as such. The Law Society had a look at the definition of 'relevant history'. That provision under the bill in subsection (a) says:

(iv) information relating to charges for offences alleged to have been committed by the person in South Australia or elsewhere (whether those charges relate to offences alleged to have been committed before or after the commencement of this section and regardless of the outcome of those charges);

(v) information lawfully obtained or held for any purpose by a person or body prescribed by regulation (being information that is relevant to whether a person is a suitable person to perform prescribed functions);

The Law Society points out:

These provisions do not require any consideration of the integrity of the information or require that charges be proven. Subsection (iv) would include information in respect of unproven charges. The individual may strongly dispute the information, and the charges. In our view, and unfortunately sexual charges/allegations are notorious for their unreliability.

That may be the case in some cases, of course, and the Law Society is alluding to that risk. The Law Society also notes that the information that can be relied upon is not limited in its full. It could be in depositions or statements, it could be information gathered in an investigation, and it could include hearsay or other unreliable information.

They take the view that it would be inappropriate for untested or unproven information to be used against an individual. It is not simply adequate to say that it has been lawfully obtained—that is, there has not been any a breach of the law for the party who has received or recorded that information—it has to have some level of integrity in its reliability for it to be relied on. The Law Society makes this assumption:

We understand that prospective employers cannot conduct hearings about the integrity of information, however we express concern that unreliable, untested and strongly disputed information may be used against an individual and stain him/her for life—effectively making him/her unemployable.

So we do need to take that into account. If we are going to broaden it from other than criminal convictions, we have to have some capacity, it seems, to be able to ensure that what information is taken into account has some level of integrity and reliability. The next issue is the use of the information. On the definition of 'relevant history' it provides to include:

(ii) information relating to offences alleged to have been committed (whether before or after the commencement of this section) by the person in South Australia or elsewhere and with which the person has been charged but which has not yet been finally determined;

Again, this is a question of reliability and integrity of information. They go on to say:

...importantly, we question how the information is to be used if the offences are determined not to be proven? What use is to be made of information then? It would appear that that information falls under subsection (iv) and may therefore continue to be used against the individual.

Further, they say:

We recognise not everyone who is acquitted, or has had charges withdrawn, is innocent. However, the problem is that not all information gathered in the process of an investigation or by any other means is accurate or reliable.

They go on to say:

Of course we want our children protected. At the same time, an innocent individual should not suffer a life industrial ban because someone lied about him or her.

The Law Society's remedy to at least be considered in this process is that, if legislation is introduced, the bill should include a review or an appeal process in addition to the important provisions for procedural fairness. How that is to be done is obviously a matter that can be considered as to whether we use our current administrative legal processes. The parties who are fighting for the protection of children and extension to vulnerable adults, I commend them for that. The importance of that needs to be seriously considered by the Attorney.

It seems to me that it is also important that people who might be expert in employment law—unions, for example—are also parties who need to give some consideration to whether there is going to be an introduction of a regime that is going to unfairly exclude people from the opportunity to contribute in a voluntary capacity and/or employment. The employment side of it I think obviously has potentially very significant financial effects on a person. To exclude them even from the opportunity of employment, especially if it was known that there had been a refusal to allow someone employment, would adversely affect them.

It is fair to say that it is extremely difficult for people who are unfairly accused of any offence against a child or someone who is in a vulnerable circumstance to even hold their life together. I have had cases myself in legal practice where people have been a victim of false allegations; it destroys their personal relationship, and it can very often exclude them from the opportunity to continue their employment.

I have represented teachers, nurses and others who have been in those circumstances, where their life has been utterly shattered and ruined as a result of an allegation, especially if it relates, for example, to a child or a disabled person who is a family member or who is known to them. The mental trauma can even prevent them from being able to participate in worthwhile relationships or friendships or from the opportunity for future employment or from joining social clubs.

These people are destroyed. Whilst some of them were given ex gratia payments in the time I represented them—and we were grateful for that at least, I suppose—no money can restore the stain of being accused of an offence where there is a suggestion of impropriety or illegal conduct, particularly to a child.

I have not represented people who have been in circumstances of allegations of abuse of a disabled person, but certainly members of parliament (and I am sure other members have experienced this too) have had complaints come to them, either by a relative or friends, where there has been at least an allegation that an aged person has been the victim of some improper behaviour, neglect or exposure to risk which has caused them to complain. These are harrowing stories, and we need to balance what we are doing about protecting the vulnerable in the future.

It is always a hard task to get it right. I think that the Law Society has raised some important aspects. Probably, if I were to throw in any comment at this point, I would say that the way in which the bill is drafted at present is too broad and that there needs to be some protection. In my view, two things certainly need to occur; one is the capacity to easily access and apply for the exclusion from the public record information which is demonstrated to be unreliable.

There is already under the Freedom of Information Act (and probably under other legislation) a provision which allows people to have some information removed from the public record, and there is a process to do that. I have not actually exercised that or applied on anyone's behalf to do that under that legislation, but I do not imagine that it is an easy task; there would have to be significant evidence to suggest that the information that has been recorded is either scurrilous or certainly inaccurate and so on. There would have to be some reasonable threshold to have it removed because we do not want people tampering with the public record either. That seems to me to be one thing that needs to be looked at in this review.

The second thing is that we have some accessible and affordable process of review because there is nothing surer than that people will be excluded and there will be circumstances where that is unfair, and there needs to be some remedy, for the review of it in an appeal process which is accessible and affordable.

The Hon. J.R. Rau: SACAT.

Ms CHAPMAN: The Attorney prompts me to consider the new South Australian civil and administrative tribunal, which is to be established and I think, at least at this stage, is to receive the responsibility of dealing with guardianship matters and matters that currently lie with the Residential Tenancies Tribunal. There may be applications the Attorney will consider for other areas he will transfer.

Again, it seems to me that it is reasonable that those who are skilled in employment law, and the consideration that needs to be looked at for the protection of people's right to have reasonable access to employment and be able to maintain their employment, are not unfairly denied. There will be other people much more expert than me who can be consulted, and we urge the government not to fall into the trap—if it is in any way motivated to bring this review to a conclusion by December because of the 15 March 2014 election—and be persuaded to ensure that they do it properly rather than trample on the rights of good and reasonable people.

Debate adjourned on motion of Mrs Geraghty.

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