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House of Assembly - Fifty-Third Parliament, Second Session (53-2)
2017-10-31 Daily Xml
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Bills

Statutes Amendment (Attorney-General's Portfolio No 3) Bill

Standing Orders Suspension

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (15:50): I move:

That standing orders be so far suspended as to enable me to move an instruction to the committee of the whole house without notice.

The DEPUTY SPEAKER: There not being an absolute majority present, ring the bells.

An absolute majority of the whole number of members being present:

Motion carried.

Ms CHAPMAN: I move:

That it be an instruction to the committee of the whole of the house, on the Statutes Amendment (Attorney-General's Portfolio No 3) Bill, that it have power to consider new clauses relating to the amendment of the Magistrates Court Act 1991 and the Remuneration Act 1990.

Motion carried.

Committee Stage

In committee (resumed on motion).

New clauses 14A, 14B, 14C, 14D, 14E and 14F.

Ms CHAPMAN: My understanding is that these amendments deal with the amendments to the Spent Convictions Act 2009. In short, can I say that the opposition's view is that, if it is the intention of the government and the effect of these amendments (knowing that they have been redone) to allow for an exemption where it may be necessary to take into account the prior record of an employee or prospective employee in relation to the fitness and character test relating to the care of children and vulnerable adults, we agree.

The effect of the amendments being much broader than that—and I know this was originally foreshadowed by the Law Society on the draft Statutes Amendment (Attorney-General's Portfolio) (No 2) Bill—was one of the concerns that they raised. Similarly, we would have that concern. I was sent a copy of some draft regulations late last week, but I cannot see that they specifically deal with that because I have not had an opportunity to go back to the current regulations.

If it is the case that the spent conviction clauses that are designed, as I say, to broaden the exemptions to enable spent convictions to be taken into account do go beyond that general objective then we may need to look at it in another place. It seems, on the commentary in the letter that has been recently provided, that the government has now moved to public safety as a basis upon which they might want to terminate someone's employment or not employ them, and that is a little bit broader.

With those few words, I will not be objecting to the amendments as they currently stand. Reading between the lines, there has been some attempt to firstly deal with an anomaly of taking into account the difference between some cases where there has been an immediate spent conviction and where there have been other circumstances of a finding of fact without conviction. In any event, we will work through that, and I am sure we can come to some sensible resolution.

The Hon. J.R. RAU: I thank the deputy leader for her remarks. Essentially, what we are trying to address is this: there are circumstances where we have the bizarre outcome where a person who has been charged with an offence and winds up being in a circumstance where they have what amounts to a spent conviction for the purposes of the Spent Convictions Act is actually in a better position than a person who was never charged at all whose perhaps very similar behaviour can be considered by an employer in the context of their suitability. That is essentially the problem, and I have two examples. I am happy to deal with this between the houses as well, but I will put two examples on the record so that they might assist, and I hope we have been as helpful as possible to the deputy leader so far with this.

The first example is the case of a health worker employed in a hospital. The person was charged with numerous offences in connection with the theft of fentanyl (a drug of dependence) from the hospital where they worked. The person took the fentanyl on 31 occasions for their own use. The offences were found proved, but the person was ultimately found not guilty by reason of mental incompetence. This resulted in an immediate spent conviction. The employer was therefore unable to act, despite the obvious risk that the person posed to patients at the hospital, on the basis of that proven course of conduct, having regard to it being spent. Further, the employer was prevented from notifying the Australian Health Practitioner Regulatory Agency about the person's substance abuse or incapacity. That is example number one, and we can talk between the houses about how we deal with these.

The second case concerns a worker in a children's residential care facility. The worker was charged with stealing surplus medication that was prescribed to one of the children at the facility and falsifying documents to cover the theft. The worker pleaded guilty, and the court declined to record a conviction. Consequently, the worker's employer was unable to take any action against the worker. In order to remedy this issue, there must be some restructuring of the legislation. Part 7B of the bill simplifies the rules about the situations in which protections of part 3, division 1 of the act against disclosure and use of spent convictions will apply. I am happy to discuss these matters further between the houses.

New clauses inserted.

Progress reported; committee to sit again.

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