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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
2016-11-01 Daily Xml
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Bills

Child Safety (Prohibited Persons) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 20 October 2016.)

The Hon. A.L. McLACHLAN (15:34): I rise to speak to the Child Safety (Prohibited Persons) Bill 2016. I am the lead speaker for the Liberal opposition and I indicate that the opposition is supporting the second reading.

The bill is a component of the government's response to the damning Child Protection Systems Royal Commission report that was handed down by royal commissioner Nyland. It adopts some additional recommendations that were made by the commonwealth Royal Commission into Institutional Responses to Child Sexual Abuse. The bill modifies the way that working with children checks are undertaken in South Australia.

The aim of the bill is to provide a framework for prohibiting people who pose an unacceptable risk to children from working or volunteering with children. To achieve this, the bill implements a number of changes to the current screening process; for example, it introduces a single working with children check that is portable and valid for five years. A working with children check will determine whether a person poses an unacceptable risk to children and, importantly, whether they should be prohibited from working with them. This prohibition goes further than the current screening process.

Once the bill is passed, a centralised assessment unit will be established. This unit will be the sole agency in South Australia responsible for conducting checks on individuals. The centralised assessment unit will have the power to issue prohibition notices which ban a person from working or volunteering with children if they pose an unacceptable risk. The outcome of the screening assessment will be either that a person is cleared to work or volunteer with children or, alternatively, is prohibited from working or volunteering with children.

Applicants will be provided with a unique electronic identifier which will be applicable to all roles and organisations throughout the state. Using the electronic identifier, employers will then be able to verify if a check has been conducted and, further, whether a person has or has not been prohibited from working with children. The unit will maintain a public register of all clearances as well as their expiration date. A person cannot begin employment until the check is finalised.

Appeals of a screening decision lie with the South Australian Civil and Administrative Tribunal. The screening unit will also have power to conduct additional checks at any time; for example, if information becomes available to them regarding a previous applicant. The unit will be able to continue to process a check on someone who has applied but who has since withdrawn an application.

Pursuant to the bill, the categories of people who will be prohibited from working with children include:

if they are subject to a prohibited notice issued by the central assessment unit;

if they have been prohibited from working with children under a law of the commonwealth or of another state or territory; or

if they have been found guilty of a prescribed offence committed as an adult.

The bill contains a list of prescribed offences, which include a range of serious offences where a victim was a child; for example, murder, manslaughter, kidnapping, rape or other sexual offences. A conspiracy to or attempt to commit such offences will also meet the threshold for a prescribed offence.

The bill also states that organisations and employers must have in place comprehensive strategies to ensure child safe environments. It is important that organisations remain vigilant, as no screening regime is perfect. The bill clearly recognises this by stating that a working with children check is not proof of good character but merely an assessment of a person's prior conduct. The deeply troubling case involving Shannon McCoole highlights that if someone has not been previously convicted of any prescribed offence they would not automatically be red flagged in the screening process.

The bill creates a range of offences in respect of the screening process. Once passed, it will become an offence for an employer or community organisation to employ someone or let them volunteer with children without ensuring the recruit has obtained a working with children check and has not been issued with a prohibition notice.

This will also apply to individuals. The bill also creates a new offence of misrepresenting that a working with children check has been conducted, or providing false information when applying for a check. In respect to the suite of offences, I ask the minister, will directors of employers of companies that are found guilty be vicariously liable? If not, why has this policy option not been pursued? In the definition of excluded persons (those that do not necessarily need a check), there is a reference to South Australia Police and the Australian Federal Police. This issue has been previously raised in the second reading by the Hon. Tammy Franks.

The Liberal opposition will be seeking assurances from the government at the summing up of the second reading regarding what checks are undertaken on members of SAPOL. The Liberal Party will be seeking assurances that it is appropriate that South Australia Police and the Australian Federal Police are included as excluded persons. If not satisfied with the answers, then the issue will be further pursued, no doubt alongside the Hon. Tammy Franks, at the committee stage. When this bill was introduced in the other place, the government indicated that certain important matters would be dealt with by way of regulation.

Once again, we are being asked to debate the bill without the benefit of seeing exactly what the regulations will provide for. This is disappointing given the gravity of the issues this bill is seeking to redress. Significant matters to be finalised include: defining the meaning of 'incidental or usual conduct'; procedures to be followed by the central assessment unit; standards to be applied by the unit when determining the weight to be given to certain evidence; benchmarks for periods within which the applications are to be processed; the risk assessment criteria to be used by the unit; the adoption of recommendation 238(h)(iii) of the Nyland report, precluding exemptions from screening requirements; and the development of guidelines for ensuring that applications are afforded appropriate procedural fairness.

I ask the minister in the second reading summing up to give the chamber some guidance as to the government's approach to these matters. I appreciate that this is an enabling bill and I note the comments of the Attorney-General in the other place that the regulations will come after the clauses of the bill are settled. In this instance, I do not accept this assertion. Good practice in bills like this is to have draft regulations, especially when the opposition is supportive of the initiative. It indicates to me that there is a continued cultural resistance by this government to properly acknowledge the gravity of its failure in protecting the children in its care during its long term in office.

It is a disappointing thing, the tired old games being played with draft regulations being veiled to prevent what should be a serious debate about legislative structures to protect our children. The neglect of our children by this government will be a perpetual stain on all those who have served in this cabinet in the years that Labor has been in office. I note that the Law Society submission, dated 7 October 2016, welcomes the reform in this area, particularly that the bill adopts a number of the Nyland and commonwealth recommendations. It is particularly supportive of the provision that paramount consideration in relation to the enforcement of the bill is in the best interests of the children in regard to their safety and protection.

I have a number of questions for the minister, which I request be answered in the second reading summing up. I ask the minister:

What communication has the government engaged in so far, or does it intend to engage in, given both individuals and employers will be committing an offence if they fail to adequately comply with the legislation?

What is the government doing, or intending to do, to ensure that people, and especially employers, are educated about their obligations under the act?

Has appropriate budget been allocated?

Given that the people cannot commence employment until they have obtained the check, is the government ensuring that the responsible departments will be adequately funded and staffed so that backlogs can be avoided? The DCSI Screening Unit faced many challenges when the previous screening checks were introduced, as they struggled to keep up with a high volume of applications;

Given that people will not be permitted to begin employment until checks are completed, how will the government ensure that the unit does not encounter the same problems which left significant amounts of people unable to work for extended periods of time?

Are different practices and procedures anticipated?

Whilst the Liberal opposition is supportive of this bill, there is still much more this government needs to do to protect our most vulnerable children. This represents but one important tool that is required to fix the child protection systems in our state. I commend the bill to the chamber.

The Hon. P. MALINAUSKAS (Minister for Police, Minister for Correctional Services, Minister for Emergency Services, Minister for Road Safety) (15:45): I thank those members who have contributed to the debate on this bill. The bill creates a new regime that can prohibit a person from working to children if they are assessed as posing an unacceptable risk to children. The bill reflects the recommendation of Commissioner Nyland of the South Australian Child Protection Systems Royal Commission, as well as recommendations made by the commonwealth Royal Commission into Institutional Responses to Child Sexual Abuse, as set out in its final recommendations on working with children checks.

Under the bill, any person wanting to work with children will be required to have a working with children check and not be prohibited from working with children. This working with children check must have been done by the central assessment unit, with the results recorded in a records management system. The Hon. Tammy Franks sought some reassurance from the government as to the time frame for these checks, given that people are unable to commence working with children until the check is completed.

We have consulted with the DCSI Screening Unit on this issue, who have advised that the current time frames for screening are as follows. In 2015-16, the Screening Unit processed and finalised 98 per cent of applications within 30 business days; importantly, noting that over 85 per cent of applications were processed and finalised within 15 business days.

The number of outstanding applications over 30 business days has reduced from more than 7,000 applications in early 2015 to around 200 in October 2016. These applications are less than 1 per cent of the total volume of applications processed and finalised. This streak continues in 2016-17. In addition, section 4 of the bill also mandates the making of guidelines to include benchmarks for periods within which certain applications for checks are to be processed.

The Hon. Mr Darley has posed a series of questions using examples as to who will need to undertake a working with children check. In response, I must firstly point out that this bill will be supported by regulations to be released for public consultation. These will be developed upon passage of the bill and will provide definitions for key terms, such as the terms used to define 'working with children'. The regulations will also spell out exemptions, such as the parental exemption, so as to ensure parents will remain able to volunteer in activities that involve their children.

Both the Hon. Mr Darley and the Hon. Tammy Franks have questioned the exemption contained in clause 9(3) whereby if a person does not intend to work with children for more than seven days in a calendar year, they are exempt from requiring a working with children check. This provision reflects a recommendation of the commonwealth royal commission. In their final recommendations on working with children checks, the commonwealth royal commission recommended this exemption on the following basis:

People who engage in child-related work for short periods should be exempt. We note:

that the risks to children are comparatively low, as the short-term nature of the contact means there are fewer opportunities to establish and abuse a relationship of trust

the need to accommodate emergency situations requiring urgent work with children.

While the specific period of time may benefit from discussion among the state and territory governments, we feel that a period of seven days or fewer in a calendar year would strike an appropriate balance between child safety and other concerns. The exemption should not apply to child-related work in connection with overnight excursions, due to the heightened risks to child safety inherent in this work.

We have adopted this approach in addition to the limitation for overnight stays or excursions. A person who has been prohibited from working with children cannot rely on the exemption.

Turning to another question of the Hon. Mr Darley as to whether this means that businesses or individuals who host a work experience student will not have to be screened as long as the work experience period does not exceed seven days: that is correct. However, it must be noted that during the development of regulations we will be consulting on whether individuals or businesses taking work experience students who are children should need to undertake a WWCC in any case.

The Hon. Mr Darley also asked whether a high school student, who elects to undertake work experience at a primary school, will be required to have screening undertaken. At a glance, because the student themselves is actually working with children, a check should be required, but again this type of detail will be in the regulations and subject to consultation. If the student was required to be screened, they could seek to rely on the seven-day exemption, subject to its limitations. It should be noted that anyone relying on the seven-day exemption can only do so if they are not working with any children for more than seven days in a 12-month period.

The Hon. Mr Darley asked whether a person working in a children's clothing retailer that sells exclusively kids' clothes, or a person working in a toy section at Target, or employees of bowling alleys and gaming arcades, will require a working with children check. Again, such matters will be dealt with by the regulations and will be subject to public consultation.

In addition, the Hon. Tammy Franks also sought clarification on what would be incidental contact with a child. This term, too, will be defined in the regulations and therefore subject to public consultation. In considering these types of questions, though, I ask all honourable members to look beyond the question of whether a person in certain employment, such as behind the counter at the children's clothing store, should undertake a working with children check. I ask honourable members to consider whether as a community we are comfortable with not requiring working with children checks in given circumstances, knowing that in the example given this would mean that a person who is a convicted child sex offender can obtain work in that store, unbeknown to the owner, who has not sought a working with children check.

The Hon. Mr Darley has also sought clarification on other exclusions, such as the bill excluding people from requiring a check if they work in child-related work in the same capacity as the child to whom the work relates. First, there seems to be some confusion about this provision. It is clause 9(1)(b). This exemption applies in cases where the work is not child related. If work is child related, then this exemption does not apply.

This exemption applies where people working in the business or shop do not require a working with children check, for example, a retail store that sells furniture. Under this exemption, just because the store then employs a 16 or 17 year old, this should not mean that anyone else working there now needs a working with children check. This exemption is specifically designed to address the employment of persons under the age of 18.

Employing a young person should not mean that fellow staff, the manager or supervisor, should undertake a working with children check if it is otherwise not needed, so, yes, this exemption is designed to apply in these cases where a child is employed, for example, as a waitress in a restaurant or as a clerk in a furniture store.

I now turn to a question from the Hon. Tammy Franks concerning the requirement that the central assessment unit screen applications that are withdrawn. She was correct in her assertion that this is important, as it allows for the assessment to continue and the person, despite withdrawing their application, to be a prohibited person. My understanding is that in some cases the screening unit may interview an applicant to seek further information. Naturally, this would occur if the unit is considering not clearing the person. At this stage a person could withdraw their application.

It is in these circumstances that, under the bill, the working with children check could still be undertaken. This is an important provision, because it stops a person who should be prohibited from withdrawing their application and thereby stopping themselves from being prohibited. When asked about this provision, the DCSI screening unit explained that there is some evidence that applicants are deterred during the assessment process. They stated that this is particularly after the stage where applicants are contacted regarding information that is being assessed and that, based on current processes, the number of applications withdrawn at this stage is minimal.

This provision also reflects a recommendation of Commissioner Nyland of the South Australian royal commission. Commissioner Nyland, in her report, gave the following reasons for her recommendation 238(e), which the government supports:

The reasons for withdrawing an application are no doubt many and varied. However, the possibility that a person may seek to withdraw their application to avoid a refusal based on their history should be enough to prohibit the withdrawal of applications.

Once an application is submitted, it should be assessed and a screening outcome determined. All refusals should be systematically recorded. Efforts should be made to develop information sharing practices with interstate screening units so that assessments in this state can benefit from knowing about refusals in other jurisdictions.

Honourable members are asked to note that a further bill will be developed upon passage of this one that provides for transitional arrangements that will make the necessary consequential amendments to support this new regime. For example, it will be necessary to enact provisions so that people who have already been subject to a screen for working with children by the DCSI screening unit will be able to rely upon that screening to continue to work with children until its expiry. It is intended that the existing Department for Communities and Social Inclusion screening unit be appointed as the central assessment unit.

Under this bill, the working with children check will remain valid for five years. It will be portable between employers and any organisation where a person is working or volunteering with children. However, the person's criminal history will be continuously monitored, with criminal history data being matched daily against the records management system.

The Hon. Mr Darley has asked why, given the system is dynamic, it is necessary for a working with children check to be undertaken every five years. Consultation was undertaken on this query with the DCSI screening unit, which provided us with the following information:

The reason behind five yearly checks even though there is continuous monitoring are as follows:

Continuous Monitoring will look at South Australian criminal history, child protection and care concern information that is relevant to whether a person should be a prohibited person, that is only SA information and only relevant offences and child protection/care concern reports. It is therefore not a full assessment of all available relevant history information.

Every five years, a full check is undertaken of expanded criminal history information for people working with children across all jurisdictions, and South Australian child protection and care concern database checked in full. This full set of information is not continuously monitored and that is why a full assessment needs to be undertaken periodically.

This is the same process as in other jurisdictions, noting that SA is the first jurisdiction to continuously monitor child protection information.

The criminal justice systems in each jurisdiction run independently. The Commonwealth Royal Commission has made numerous recommendations regarding standardising policy and checks across the jurisdictions. This includes joining up the criminal systems to enable continuously monitoring across jurisdictions rather than it being state based. These recommendations are to be actioned by the Commonwealth.

Hence the need to undertake a full assessment every five years.

Continuous monitoring, together with any other assessable information that comes to the attention of the central assessment unit, can trigger a reassessment and could result in a person being prohibited. The Hon. Mr Darley mentioned during debate that he had sought information from the government concerning reasons being given for a decision to prohibit a person. The Attorney-General has informed the Hon. Mr Darley that although there is no requirement under the legislation to provide anything to the person except for a prohibition notice, as part of implementation of the new regime proposed under the bill, the DCSI screening unit is working towards a new framework of decision-making that includes providing reasons for a decision to issue a prohibition notice.

This work is being done as part of developing the guidelines for decision-making as required under section 4 of the bill and as part of developing information to inform the drafting of regulations as to how a person is to be afforded procedural fairness, as per section 11 of the bill. The intention is that any requirement to provide reasons for a prohibition notice is not a matter for the bill but rather a matter to be included in the draft regulations. These will be the subject of public consultation.

The bill contains multiple offences linked to providing information and not misleading the central assessment unit and also places obligations on the central assessment unit to notify employers or community organisations if a person becomes prohibited. Section 3 of the bill very clearly establishes the objects and principles behind the legislation, and provides for a more transparent system than currently exists.

Section 3 provides that the primary objective is to minimise the risk to children posed by persons who work with them. Section 3 also states that to further this primary objective, it is a further object of the legislation to provide a framework for the prohibition of persons who pose an unacceptable risk to children from working with them. The paramount consideration in respect of the administration, operation and enforcement of the legislation must always be the best interests of children, having regard to their safety and protection.

It is important that this new system of working with children checks does not lull people into a false sense of security. The bill clearly articulates that a working with children check is an assessment of that person's prior conduct. Therefore, the fact that working with children checks are conducted in relation to employees does not of itself satisfy an employer's obligation to ensure that a workplace is safe for children. Organisations and employers must have in place comprehensive strategies to ensure child safe environments. For example, even if a person is not prohibited from working with children, the employer should still undertake their own assessment as to whether the person is a fit and proper person to work with children.

The bill also makes it clear that a working with children check is not a determination of a person's suitability to work with children and cannot be relied on as such; a working with children check is not proof of good character; and a working with children check is not proof that the person does not pose a risk to children. I again thank those members who have contributed to the debate on this bill.

Bill read a second time.

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