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House of Assembly - Fifty-Fifth Parliament, First Session (55-1)
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Bills

Child Sex Offenders Registration (Child-Related Work) Amendment Bill

Committee Stage

In committee.

(Continued from 7 March 2024.)

Clause 1.

Mr TEAGUE: We are disjointed only to the extent that the committee kicked off on the last Thursday of sitting, so in commencing the committee process I appreciate the minister's response to my first question at that time, going more particularly to the concern that I had flagged during the course of the second reading debate about the matters that were perhaps best articulated by Business SA by its letter to the Attorney dated 18 August 2023.

My question in that context was to ask the minister if the minister is satisfied there is a sufficient program, with or without the direct involvement of Business SA, to ensure that those who might be affected in every respect will be made aware of their obligations. If so, how is the minister satisfied and how is that process of awareness-raising going to occur?

The minister had begun to answer that question, or might have provided a full response. Apart from noting that it is a matter that had been raised in another place and it was a matter of relevance, the minister emphasised that the bill by itself is not imposing new obligations on businesses. Further, the minister observed, and at this point I am quoting from that response:

The way that this is set up through this legislation or through this bill is that the onus of compliance absolutely falls on the offender, and the risk of noncompliance and the particular penalties that that will attract also fall on the offender.

The minister then further adverted to having been advised that it was:

…SAPOL's intention to communicate the onus of that compliance and that risk of noncompliance very clearly to those who are registered child sex offenders.

At that point the committee reported progress. I understand then—and that is helpful—that SAPOL is alive to the new circumstances and that the onus is entirely on the offender to comply, to do what is required under the new legislation, including identifying circumstances to an employer.

My next question, in those circumstances, is then: what supports, if any, has the government contemplated in terms of provision to employers—again, with or without direct involvement of Business SA—to ensure that there is a minimum of practical disruption to business as a consequence of what might, through no fault of the business, be a potential practical disruption, if not the business being caught up in offending? I understand very clearly that there is no risk of that from business' point of view, so, from a practical point of view, is there any range of support and, perhaps further to that, is there a program of ongoing communication? I keep mentioning Business SA—it need not be limited to Business SA—but to employers, workplaces and that peak body in particular.

The Hon. K.A. HILDYARD: I think the member has outlined or summarised the answer that I previously gave in relation to there not being particular new obligations on employers, but rather the obligations are borne by the offender. I think we agree on that point.

In terms of communication or assistance to business and the question about disruption, I think the important thing to note is the nature of the transitional provisions with the six-month period. I think that will be important in terms of there not being a sudden disruption but rather that period of transition.

Also, obviously we have consulted Business SA. There will be general communication from the Attorney-General in terms of media and broad communication, but again I go back to the point that, as the member also said and as I spoke about last time, the Commissioner for Police and SAPOL will be communicating closely of course with offenders who bear that obligation, but there will be the general communication from the Attorney-General around the provisions of the new bill.

Mr TEAGUE: I hope to have some form of coherence in terms of this group of questions. If we have cleared up that on the one hand the bill is not imposing fresh obligations on business, SAPOL is alive to making some extra efforts to bring to attention those who have obligations, and then questions of transition and support for business in practical ways, is the minister able to enlighten the committee at all in terms of the government's view or advice in the practical circumstance in which an employer might require to navigate the rights of an employee affected by the bill in, for example, the following circumstances.

This is a matter among those practical challenges that I am sure Business SA is alive to—and I recognise that Andrew Kay is head of Business SA, but in particular Kendall Crowe from a policy point of view—and would perhaps seek some comfort from a day-to-day managing of rosters point of view in the following example: you have an employee who, whether or not having twigged themselves to the legislation, or SAPOL has assisted and brought it to their attention, is then in a circumstance of compliance that may or may not involve an application to the commissioner to grant discretion and so on.

Let's assume that there is an employee in circumstances now who is no longer permitted, for all the good reasons that we support the passage of the bill, to work at particular times, particular rosters, maybe particular locations of an employer, but willing, able and with capacity to fulfill duties in other ways, perhaps at different times, different locations and so on. In circumstances where, if you like, a demanding employee is then presenting and saying, 'I might be subject to these probations, okay, but I also have the willingness and capacity to perform the duties that are the subject of my employment.' I started by asking whether the minister could enlighten the committee.

In what circumstances is an employer now going to be navigating new territory in terms of negotiating with that employee, and to what extent is the employer armed with the capacity to say, 'Oh well, bad luck, this trumps whatever else you're doing,' and with the best will in the world you might have to say, 'All bets are off, it's too hard and you're out.' If I can boil it down to one straightforward question: to what extent have the industrial relations consequences of this been worked through in the interests of both parties, but I couch it in terms of the interests of the employer in the present circumstances?

The Hon. K.A. HILDYARD: Thank you for the question; it is a question I have been contemplating myself, actually. As the member would appreciate, the Attorney-General is also the Minister for Industrial Relations, so, certainly, I can say that he has contemplated particular circumstances that may arise with both acts operating alongside each other. So I can certainly answer that part of the question: of course, he has thought about that.

What I can say is that there are already particular circumstances that arise in a workplace for all sorts of reasons, including reasons where an employee has been found guilty of a particular offence. There is already a great body of precedents around how industrial relations legislation sits alongside particular aspects of all sorts of offences.

In many ways, I guess the approach for an employer, in relation to this particular type of offence, would be the same as it is in relation to other types of offences where Work Health and Safety Act considerations are taken into account where particular responsibilities and rights, both for the employee and, very importantly, other employees in a workplace are taken into account in terms of the provisions of either the state or federal Fair Work Act.

In many ways, the contemplation of how these two pieces of legislation sit alongside each other will continue with similar considerations to what employers undertake now in terms of health and safety, in terms of, as the member himself raised, all sorts of rostering considerations and people's responsibilities and rights under that. But I can say that, with the dual roles that the Attorney-General holds, that has certainly been contemplated in this case.

The Hon. D.G. PISONI: I have some questions, minister, on how this will affect the current and future employment of people who have been convicted of child sex offences. For example, former Labor staffer Benjamin John Waters was spared jail over child abuse material. The former South Australian Labor staffer spent eight months in home detention for viewing and sending child abuse material in what the District Court judge described as a serious and social evil. Benjamin John Waters was handed a one year and three-month sentence and a non-parole period of eight months.

Obviously, this was back in 2022. I suspect that Mr Waters would be out looking for work. Would he be able to work as a political adviser, as he did in the office of Labor MP Nat Cook, who was at that time the shadow minister for disability and other sectors that had contact with children? Would he or anybody convicted of those offences be prohibited from working for a minister or a shadow minister or a member of parliament who had those types of responsibilities?

The Hon. K.A. HILDYARD: I am not sure if the member was in the chamber, but just to reiterate, as I did both in the contribution I made in leading discussion in this house around this bill and in other parts of this debate, this bill applies to registered child sex offenders.

The Hon. D.G. PISONI: And they are registered child sex offenders, I believe. Mr Waters is a registered child sex offender after that conviction, yes? Would that be the case?

The Hon. K.A. HILDYARD: I have already answered the question about who this bill applies to.

The Hon. D.G. PISONI: No, you have not answered the question. The question was whether the restrictions would prohibit somebody who was in this category working in government or for a government minister or a member of parliament in an area that had contact with children. That is my specific question that you have missed.

The Hon. K.A. HILDYARD: I am wanting to be clear here. This bill applies in the way that I have previously described. It, of course, also operates in conjunction with existing legislation that deals with child sex offenders.

The Hon. D.G. PISONI: Yes, but can you answer the question as to whether somebody who this bill affects—in other words, does this bill cover employees of members of parliament or ministers whose portfolio responsibilities or parliamentary responsibilities deal with children or have contact with children?

The CHAIR: Member for Unley, the minister has responded to your question on two occasions. You may not like the answer, which is fine, you are entitled not to like the answer. If you believe this bill does not go far enough or is inadequate in some way, you correct that by an amendment. The minister has answered the question. Next question, please.

The Hon. D.G. PISONI: We know in the workplace, particularly in retail, there are many children who start as early as 15. My son started his first part-time job not long after his 15th birthday. On his first day there was a three-hour induction. Part of that three-hour induction entailed an induction from the Shop, Distributive and Allied Employees' Association in front of these 15 and 16 year olds about the benefits of joining the union.

Of course, former Labor minister Bernie Finnigan, who started his political career in the shoppies union, got 15 months' jail suspended for the use of child pornography back in 2015. My question is: would this also apply to people who would have a casual association through visiting a workplace that has children under the age of 18 and having them in an environment where they had control or had the attention of those children in a briefing about the services that they offer?

The Hon. K.A. HILDYARD: As I spoke about earlier, in relation to this bill child-related work means work involving contact with a child in connection with any environment where there are children present.

The Hon. D.G. PISONI: Is that yes, there would be? I am asking for clarity, minister.

The Hon. K.A. HILDYARD: If it is work involving contact with children in an environment where the particular business or operation employs children, that is the relevant provision to look to in terms of your question.

The Hon. D.G. PISONI: The way I understand that question is that that would be the case, that somebody who was a registered child sex offender could no longer work for a union, for example, that had people under the age of 18 as members or tried to recruit people under the age of 18 as members. That is how I understand your answer to the question, and it is also the way I understand your answer to the question about Ben Waters, a former employee of Nat Cook, who is now obviously also a registered child sex offender because of his child sex offences through exploitation material that he had viewed and disseminated through networks.

The question now is: what happens if it is discovered that an existing employee is a registered child sex offender who has only now been recognised as being prohibited from working in the areas that this amendment expands it to? What happens in their situation, and also in an employer situation? Is there a conflict with the federal Fair Work Act, and what advice is there for employers who need to deal with that situation because they simply were not aware?

In my own electorate, we had a situation—although it was not an employer-employee situation—where the president of the Unley Road traders association had been charged with child sex exploitation material in November last year. He did not tell anybody and he attended an event that was sponsored by the Unley traders association in February this year. Not long after that, his charges were made public and everybody was, obviously, absolutely horrified that that person was continually involved in family-friendly events that were being sponsored by the traders on Unley Road.

I am just trying to get an understanding of what support there is for people. It is very confronting. I witnessed how those who were involved in putting on that event felt about hearing that news, and I imagine an employer being made aware of that news. How would employers also be made aware that this is now an obligation of theirs, that they must not have somebody working for them, if they have had someone working for them for a number of years in that position?

The Hon. K.A. HILDYARD: First of all, I would suggest that the member look at part 5, section 64, the interpretation clauses of the substantive act, the Child Sex Offenders Registration Act, because that certainly goes into detail about what already exists in legislation in terms of who is covered through the operation of this act. So I would suggest that you look at that particular part.

I understand that you have brought up a range of particular circumstances in your question, and I would give you the same answer that I gave to the member for Heysen earlier, and that is that in every circumstance, once these new amendments are in operation, those new amendments will operate as they should. They also operate alongside the existing provisions of the Child Sex Offenders Registration Act, and they also operate alongside the provisions of both the state and federal Fair Work Act, which apply to different groups of employees depending on by whom they are employed.

So, in any of those circumstances that you have raised, the particular employer, looking at those three sets of provisions—as they would now with the operation of the Child Sex Offenders Registration Act, and particular industrial relations legislation, whether that be the state or federal Fair Work Act, and, of course, the Work Health and Safety Act—will need to consider those circumstances and act according to those pieces of legislation that already exist.

I imagine that employers will do what they do now, which is to seek particular advice, to make police reports where they are required to do that, as they are already required to do, and that they will continue to fulfil their obligations under both those acts, and now with these additional provisions in relation to the class of employees that are covered by these amendments.

The Hon. D.G. PISONI: Supplementary, sir, if I may.

The CHAIR: No. I have been very generous with the questions, member for Unley. I think I have allowed more than the usual questions.

Clause passed.

Clause 2.

Mr TEAGUE: Just considering then the question of commencement, as is normal, there is no indication, other than coming into operation on a day to be fixed by proclamation. In the circumstances of this change that is going to affect the status quo, vis-a-vis business employees and employers, firstly, has the government given any particular consideration to the time for commencement? Is it going to be in any way unusually moved forward to accommodate any perceived necessity to prepare industry or any other affected party? Is it otherwise a matter that the government is expecting to be commencing—otherwise than in the usual course—and that we might all anticipate then dealing with the consequences, including the transitional processes and so on following its commencement?

The Hon. K.A. HILDYARD: As we would with any particular legislation, the Attorney-General will take account of, primarily, the safety of children that will be enhanced through this piece of legislation. He will also take account of the needs of the police commissioner and SAPOL in terms of the commitment and requirement now to communicate with registered offenders. The Attorney will also, of course, take into account the needs of business. As he always would, those particular interests will be balanced. There will be obviously discussion with the police commissioner, given the requirement that he has to communicate to registered offenders. Those three groups or those three matters will be balanced, and the act proclaimed accordingly.

Mr TEAGUE: It sounds as though there might be some consideration beyond business as usual perhaps that one might anticipate prior to the act coming into operation. I hear the minister in that regard: that might amount to some time passing or not. To perhaps then couch that in terms that are rather more specific, and these are no more than practical examples, I might put it in terms of three different categories.

One is where a particular employee is engaged in training one or more other key employees and the business might be affected in that compound way by the fact of that employee being involved in training, whether or not the training involves training children—just in a training capacity. If it is in the interests of, if you like, the third party—apprentice or trainee of some sort on the job—not to have their training disrupted, you can see a whole range of different parties affected by the advantages of continuity of the training.

Again, perhaps for the purposes of this bill, it is important to couch that in terms of let's exclude circumstances in which the training is of minors. As one might argue, it is going directly to that kind of contact. If it is not already covered by the old form categorisation of 'nature of work', this is one of those circumstances that is very close to the old form 'nature of work'. In any event, let's just say it is training that is provided to one or more other employees, and it is in the interests of those trainees and the employer at least that there be continuity. It might be that that is a post-commencement commissioner discretion point, but to the extent that there is a particular range of training programs about which consultation prior to commencement would be desirable, that is one thought.

Secondly, which is sort of related to it, is where the skills of the employee are deployed in a particular time-critical way, and if there were to be some precipitous circumstance then requiring that employee to leave the employment or change the way in which they are doing it—the location and so on.

Thirdly, and perhaps for good measure—and I hear the context in terms of the industrial relations parallels and the existence of the primary act—is the minister able to say categorically or give examples, if there are, of circumstances in which the commencement of the act will lead to circumstances which themselves might be grounds for termination in that there is just no way, absent the exercise of the commissioner's discretion, for the employment to be maintained in any way? Therefore, notwithstanding the provision of training, notwithstanding relevant discrete skills that might be applicable to a particular trade or a particular location, is there any circumstance in which the operation of the act will provide grounds for termination?

Perhaps to flesh that out somewhat, having given that kind of spectrum of responses from employer obligations all the way through to employer supports in the broad, and we are dealing with clause 2, I am to understand that the government will have given consideration to circumstances in which the commencement of the act will give rise to circumstances where the employer is for the first time aware of the particulars of the circumstances of the employee if there are no grounds for termination associated with navigating that space. What particular recourse might an employer have in dealing with that both prior to commencement and otherwise?

The Hon. K.A. HILDYARD: I think there are five questions in that one question, so I will do my best. To go back to the first question, I think you alluded to a question mark over whether the consideration of commencement was outside any business-as-usual processes, and the answer that I gave to your earlier question about the safety of children, the needs of the police commissioner and SAPOL and the needs of the employer, all being balanced in terms of commencement, are what we would say are business-as-usual processes to go through when whatever the subject matter of the bill is that a particular minister and the government will go through.

I will take the question about training and about skills needing to be employed in a critical way and group them together by saying that the base of those questions, despite there being different examples, is a question again about disruption to the employer and I would say—

Mr Teague: And the trainees—

The Hon. K.A. HILDYARD: Yes, that's right. What I would say again is that, as I spoke about in my introductory remarks, there are transitional provisions that do not necessarily mean they may but they do not necessarily mean immediate termination—there are certainly circumstances where they may by the nature of this bill—but the purpose of the transitional provisions is to contemplate a range of matters: again, first and foremost, the safety of children and also potential disruption.

In terms of the grounds of termination, there are all sorts of reasons that an employer has the right to terminate employment. Those reasons will continue to exist, and those rights of the employer to engage in disciplinary proceedings, including termination of employment, will continue.

Mr TEAGUE: I appreciate there are a number of scenarios put there in terms of what might affect the timing of the act coming into operation. That is of assistance, both in the particular context of commencement and perhaps generally.

What is important perhaps to keep on reiterating in this space is that, with the possible exception of the scenario I put in terms of the provision of training by an employee of other employees in the course of their broader work where the trainees are minors—let's say they are undertaking an apprenticeship and they are 16 or 17 years old—that might be couched within the former regime, if you like, the former approach, which defined 'child-related work' in terms of the nature of the work and the range of categories there that are all set out. They are readily understandable. They are categories of work that can be identified in advance and it is clear on an objective reading and in a temporal sense as well that we are focused on the nature of the work, not on those categories of persons who might come from time to time into the workplace for different reasons.

That training environment example might be a bridge from one to the other, but for the bulk of circumstances we are now going to be zeroing in on employees who have otherwise for some time had to steer clear of that large number of categories of child-related employment and now they instead, in a temporal sense, find themselves possibly from time to time in employment that is caught by the new definition.

I think we have all agreed that it is a new form of complexity that involves a new form of live assessment from time to time and it might be one in which the person's employment is perfectly acceptable for a period of time. It becomes prohibited by the act by dint of the employment of children from time to time and then may cease to be prohibited by the act in further subsequent circumstances, hence I think the understandable focus on the commencement of these provisions.

As I understand the answers given to questions so far in relation to commencement, there will be the usual course of pre-commencement work, but nothing that is particularly unusual has been identified. Is it fair then in those circumstances to say that the government's intent is to navigate that live assessment process, if you like, primarily by the operation of the safeguards that are the subject of the balance of the bill, therefore post-commencement?

The Hon. K.A. HILDYARD: I think I understand where the question is amongst the detail there. I think the short answer is that it is both. I just spoke about the considerations—the safety of children, the police commissioner and SAPOL's needs, and employer needs—in terms of determining the date for commencement. Also, of course, with the transitional provisions during that period, there is another opportunity to consider those particular groups and that particular imperative around the safety of children in that period and rightly so.

Of course, as is the case with any legislative amendment, there is ongoing examination of the efficacy of particular provisions with regard to those three groups and the imperative around the safety of children and the need for SAPOL and also employers to undertake their operations. I believe that answers the member's question.

Mr TEAGUE: Before leaving the clause, I will conclude that point by highlighting the relevance, the importance, of the Law Society's observation at paragraph 12 of its letter to the Attorney dated 7 August 2023, where it makes the observation, by reference to the Criminal Law Committee, that:

…the Committee noted the Bill effectively contemplates an extension to the already existing prohibition from engaging in 'child related work.' Practically, the definition will now expand.

That is the ground we have covered. It continues:

It will now not cover simply work in which children are involved. It will now extend to a workplace in which children are also employed.

We have talked about the temporal nature of that. The letter continues:

While the very important objectives of the Bill are noted, the Committee highlighted the need for an important balance to be struck to ensure any amendments do not give rise to an increased potential for arbitrary outcomes.

The two concerns of the Law Society that are made clear on the face of that are first the fact that the provisions apply to those who are charged with offences—that is not the subject of this question—and second is the concern that the provisions can apply arbitrarily. In that context, the Law Society is emphasising in its submission the importance therefore of the possibility for the exercise of discretion by the commissioner.

I appreciate the minister's answers in terms of work done in preparation for the bill. We are here talking about when it is going to commence. I have thought of a couple of scenarios in which continuity might be in the interests of more than just the affected employee; training circumstances for one, training of adults. As I understand it, the circumstances of the commencement are about as vanilla flavoured as they can be. They are normal. We expect commencement fairly soon.

The range of different scenarios that one might contemplate in terms of workplace—everything from consequential termination through to changes of rosters, changes to training arrangements, changes to the securing of unique skills—they are for all intents and purposes going to need to find their way, and to the extent that an exemption is appropriate for particular circumstances, then the commissioner is going to have important work to do.

The Hon. K.A. HILDYARD: As the member has pointed out, the Criminal Law Committee at paragraph 12 does highlight the need for, importantly, that balance to be struck to ensure any amendments do not give rise to an increased potential for arbitrary outcomes, as he has just spoken about. However, at paragraph 13, the committee also:

…highlighted (and supported) the ability for the arbitrary operation of these provisions to be ameliorated by a person being able to apply to the Commissioner for an exemption.

They go on to say that is appropriate and should remain.

Clause passed.

Clause 3.

Mr TEAGUE: On clause 3, I highlight the corollary to—I do not have it in front of me—I think section 11 of the Bail Act and subsection (2ab). This is one of those matters of coherence that has been thought about in the course of the preparation of the bill, and I understand it, but I just want to highlight the temporal point that is introduced now.

Perhaps as a threshold question, because I can be a bit slow on the uptake sometimes: is it indeed an introduction of a temporal assessment? Is there any other existing category of, in the old regime, child-related work that would require a temporal assessment—the point about children being employed from time to time, that situation changing in a whole variety of circumstances—or is it actually a complete proposition to say that we are moving entirely from an environment in which the nature of the work was the full test and we are now going to be in an environment where there is this sort of centrally temporal test that is going to depend on whether children are in fact employed from time to time in whatever workplace?

The Hon. K.A. HILDYARD: Again, the short answer to the question is that there would be temporal assessment, as there is now under part 5, section 64 of the Child Sex Offenders Registration Act. If you look at the definitions there, if you take part 5, section 64(1)(i) of the Child Sex Offenders Registration Act, which talks about overnight camps, for instance, right now there could be a circumstance where an employee is involved in particular camps with that organisation with adults, for instance—taking adults to a camp—but then it changes and that particular employee potentially has responsibility for running those overnight camps with children. Of course, there would be that timely assessment to ensure that the provisions of the bill are upheld.

Similarly, for instance, in relation to part 5, section 64(1)(j), should there be a period of time when an association or a movement does not have particular children associated with that movement, association or club, but then at a later time they do, of course there would be that timely assessment in relation to these new provisions that we introduce through this bill to make sure that those provisions are upheld.

Mr TEAGUE: Alright. That might be debated. I doubt that (i) and (j)—

The Hon. K.A. Hildyard: They might not be the best examples.

Mr TEAGUE: They might be; (i) might be the best example, but I doubt that either of them take us very far. I would have invited the minister to say that the short answer was yes; it is not particularly controversial. I can understand circumstances, possibly, where 64(1)(i) might involve a temporal assessment. In terms of clubs, associations and movements where there is a significant child membership or involvement, we go to the nature of it—if it is a junior sporting club.

But the essential point is that we go from categories of work that are readily identifiable by their nature to the presence or not of children in workplaces of any kind. Therefore, it is now everybody in circumstances where before it was about, essentially, child-facing work, work in which the employee by the nature of their work carried some of the indicia of close connection, to use the language of vicarious liability. The analogy might have been made in the past to that close connection test for vicarious liability.

We had the debate over the last 100 years or so around whether or not it can ever be possible for an employer to be responsible for the criminal conduct of their employee. That has been aired in a range of jurisdictions over the last 20 years in particular in circumstances of sexual abuse by that employee, and the high watermark of those cases has been in circumstances of 64(1)(a) to (p) categories—school, boarding house—where the nature of the duties of the employee are so closely connected to children that the vicarious link may be established.

But here we move into different territory altogether, territory in which there is this temporal connection. Perhaps the question might be couched in terms of: has the government given any contemplation to the kind of macroconsequences of legislation of this kind and, if so, is it prepared for a change of approach that might occur, the application of a hypercaution, if you like, by both employees and employers, in which you will see a very clear separation between anybody who is even remotely likely to have any contact with anyone under the age of 18 in a workplace? To what extent is that a potential unintended consequence of the legislation and in the interests of productivity generally, or does it fall into the category of we will just have to see what we find as we go along?

The Hon. K.A. HILDYARD: I think the question was about have we contemplated those, I think the words you used were 'macroconsequences' or 'broader consequences', and the very short answer is yes.

Clause passed.

Clause 4.

Mr TEAGUE: We are here then focused on the work of the commissioner. The commissioner already has a range of powers and this is now having the effect of broadening that to the new paragraph (ka) category. In terms of the broadening of the scope, I might have gone around the block a few times on this whole change of work to be done under this legislation, but moving away from categories of work and the exercise of discretion to what one might contemplate as being characterised by endless different discrete sorts of circumstances where someone, until the public debate has occurred and until the legislation is enacted, might have perhaps never dreamed that they were employing anyone who was vaguely conducting child-related work and will need to equip themselves with that new fluency.

But in terms of what is going to come to the commissioner, is it now likely to be a whole different range of almost endlessly unique factual circumstances that might be newly associated with children being employed from time to time? The first question might be to workload and resources: has there been any indication to or from the commissioner about the nature and scope of the work that is likely to have to be done by the commissioner in response to the new landscape?

The Hon. K.A. HILDYARD: In a broad sense, there will be some resourcing impact and we are alive to that and it is something we are considering, and it is something that we will continue to monitor in consultation with the commissioner. The reason that I say that we are alive to it and will continue to monitor it is that, as the act commences and the period of time unrolls when people have to declare or make their particular notification about their status as a registered child sex offender, that will of course give rise to a further contemplation of what particular resourcing impact this bill will have.

I think it is incredibly important that we do continue to be alive to it and continue to monitor it as these provisions come into effect, because we certainly would not want to estimate that there is a particular resourcing impact and then there is a greater need or a lesser need, but it is something that we are alive to, will continue to monitor and will continue to of course communicate with the commissioner and with SAPOL about that potential resourcing impact and the depth or the breadth of that particular impact.

Mr TEAGUE: The next question perhaps goes to the merits and I go to subclause (3), the new subsection (5a) and particularly subsection (5a)(b). Cutting through all the rest of the criteria, we have someone who is caught by (ka) and their offence is not connected to child-related work in the old regime, then the commissioner has a merits task to do and that is expressed in (b):

(b) the Commissioner is satisfied that the offender does not pose a risk to the safety and well-being of children employed in the business or undertaking that constitutes the child-related work.

For some reason, what keeps coming to my mind is an engineer employed on a mine site, working with machinery that is critical for the mine site. I do not know why, but it just keeps coming into my mind during the course of this debate in terms of an example. The person is a long-term employee. They are on a fly-in fly-out arrangement and there are perhaps apprentices on site from time to time. So (ka) is triggered and the person is otherwise useful. Perhaps they are engaged in all the example circumstances that I have indicated.

In any event, you now have an employer in need of that employee with particular skills and there is an application in the offing. What, if any, insight can the government give about the matters that the commissioner might need to draw upon in order to satisfy themselves of that test in (b)? How could the commissioner possibly know in those circumstances whether or not the offender posed a risk? Is the government conscious of there being an assessment that is going to be so particularised as to identify beyond the individual the particular tasks? Is the government anticipating seeing, therefore, a kind of 'There's your supplementary rule book on the exercise of the discretion; on you go'? For good measure, how is that anticipated to work in a practical sense?

The Hon. K.A. HILDYARD: Thank you for the question. I would draw the member's attention to the substantive act, the Child Sex Offenders Registration Act 2006, and particularly to section 66B which sets out the general power of the commissioner to make declaration, and particularly to subsection (7) which I think sets out really the answer to the question that the member has posed. It provides:

(7) In deciding whether to make the declaration and the terms of any such declaration, the Commissioner must take into account—

(a) any risk assessment undertaken in relation to the offender; and

(b) any other offending by the registrable offender; and

(c) any victim impact statement; and

(d) the sentencing remarks relating to each relevant offence,

and may take into account any other matter the Commissioner considers appropriate.

Then there is a note that sets out a particular example in relation to that last point.

Mr TEAGUE: So in that sense, no change, and that is section 66B, general power. Again, I am looking to interrogate this in circumstances where the commissioner, until now, has been called on to exercise the discretion in circumstances of the old regime in which it is the nature of the work that we are considering. And to take the minister's example at (i), the overnight camp, if one were to consider the exercise of the discretion in those circumstances, then there are some fairly clear lines of sight that might answer an application for the exercise of discretion in that category of work type context.

So if the answer is that it is a subsection (7) assessment, same as it is, and the note applies, then so be it. I am just flagging that subsection (7) is now going to have to be twisted and personalised and applied in a much wider range of circumstances than it was before. If that is what it amounts to, that is what it amounts to.

The Hon. K.A. HILDYARD: Again, I think the short answer is probably yes. I hear your question or point, and yes, that is right.

Clause passed.

Schedule.

Mr TEAGUE: I will hazard this. In dealing with transitional provisions, as I understand it, those who have already been charged and would otherwise be affected are not covered by (ka) retrospectively, but the application of clause 2 of the schedule is to require that the notification obligation applies anyway, perhaps, if I put it that way. The affected employee, in terms of the transitional arrangements, who has been previously charged and bailed—

The Hon. K.A. Hildyard interjecting:

Mr TEAGUE: Two.

The Hon. K.A. Hildyard interjecting:

Mr TEAGUE: No, they have been charged and they are on bail. Correct me if I am wrong, but by virtue of (a):

A registrable offender who—

(a) on the commencement of this Act, becomes a person engaged in child-related work—

The Hon. K.A. Hildyard interjecting:

Mr TEAGUE: Yes. We can wrap it up for all purposes in terms of clause 3 as well. Where they are not caught by (ka) for reasons that the bail agreement is entered into prior to commencement—that is the example that I am focused on—then they have a notification obligation, nevertheless, to the employer by virtue of these specific provisions. Is that the appropriate characterisation and, therefore, they will need to look to these prospective provisions in order to find their obligation to report to the employer?

The Hon. K.A. HILDYARD: I am really trying to answer the question. If you are on bail, the terms of your bail agreement will not be retrospectively changed; however, that requirement to provide that notice will exist.

Mr Teague: And by virtue of these transitional provisions.

The Hon. K.A. HILDYARD: Yes.

Mr TEAGUE: I know this question might have arisen in the course of the debate on the substantive bill. We are here talking about transitional provisions, we have emphasised that the obligation is on the affected employee to navigate the territory and the indication has been given that SAPOL will be extra active in terms of that. And where someone is the subject of bail conditions, there might be an ideal environment in which they are being monitored and they can be advised, 'Right, hang on, have you thought about this?'

In terms of those means by which this cohort of affected individuals are going to be advised, assisted, engaged, does the minister have anything to add to previous answers in terms of those resources that might be applied to making sure that they are appropriately informed and therefore matters are not compounding unnecessarily?

The Hon. K.A. HILDYARD: You are right. I think the answer is similar to the answer I gave earlier in relation to the police resourcing question. Of course, we will be monitoring and be alive to any additional resourcing that is required, but for those who are on bail, there are already interactions with particular authorities, and I am sure those interactions will be exercised in terms of discussions around the notification, but we will be monitoring any additional resourcing as the provisions take effect.

Schedule and title passed.

Bill reported without amendment.

Third Reading

The Hon. K.A. HILDYARD (Reynell—Minister for Child Protection, Minister for Women and the Prevention of Domestic and Family Violence, Minister for Recreation, Sport and Racing) (12:21): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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