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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
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Bills

Child Safety (Prohibited Persons) Bill

Committee Stage

In committee.

Clause 1.

The Hon. T.A. FRANKS: I start by observing that no answer was given in the second reading speech from government to my question, which is the subject of my amendment, Amendment No. 1 [Franks–1], in clause 44, which referred to why both SAPOL and AFP officers are in the exempted list. I now invite the government to present an answer to that question, which was raised, not just by myself, but by other members of this chamber.

The Hon. P. MALINAUSKAS: I will come to the Hon. Tammy Franks' question in just a moment. I might start with some information that has been sought by the Hon. Mr McLachlan. Yesterday, during the debate, the Hon. Mr McLachlan sought information about the liability of directors under this bill for offences committed by a body corporate. Many acts include provisions that hold each director criminally liable on proof of a company's offending, subject to a defence of due diligence that must be proven by each director. The bill does not contain such a provision. The approach taken by the bill is to rely on the normal principles of accessorial liability.

A corporation has a separate legal identity from its shareholders or members, directors and managers. A corporation can be convicted of an offence under this bill. If directors or others are personally involved in the commission of the offence or have aided, abetted, counselled or procured its commission by the corporation, they can be held liable as principal offenders or as accessories. In South Australia, this is generally done via section 267 of the Criminal Law Consolidation Act 1935. Further, where a corporation commits an offence as a result of directors breaching their fundamental duties as directors, they may be prosecuted under the commonwealth Corporations Act.

Regarding the Hon. Tammy Franks' concern, SAPOL has provided advice that the screening of SAPOL recruits at pre-employment is at a very high level. Applicants are required to disclose any criminal offending on their application and that of family and friends. Applicants are also screened by SAPOL, including criminal history, checking locally, nationally and, where necessary, internationally. Any issue identified is further assessed. Where an applicant has been identified as having been convicted of any offence or has been identified as a suspect for such a matter, the application would simply not progress.

Once employed, any suspected, alleged or detected offending by a police officer must be referred to SAPOL's Ethical and Professional Standards Branch, where decisions would be made regarding the employee's placement and work activity whilst investigations were undertaken. This process would apply regardless of whether the offending occurred on or off duty and would include referral to the Police Ombudsman and, depending on the circumstances, possibly the Independent Commissioner Against Corruption. The Police Code of Conduct, Police Act 1998, Police Regulations 2014 and the Police (Complaints and Disciplinary Proceedings) Act 1985 provide the framework. In this respect, an additional layer of behavioural control can be implemented in comparison to other sectors of the community.

The government and South Australia Police support the provision contained in the bill, unamended. This exemption reflects the current position, such that, in South Australia, a person appointed as a police officer is exempt from the current screening requirement in the Children's Protection Act. This amendment would result in all current and future police officers having to undertake a working with children check. As noted above, SAPOL has advised that recruits are already screened to the highest level as part of the recruitment process and it would be a duplication of the resources to rescreen them, resulting in added administrative burden which, in our assessment, would not deliver any additional security.

The Hon. T.A. FRANKS: This bill is actually all about added administrative burdens, and I note that at the same time that Shannon McCoole made the headlines, a South Australian police officer who worked in one of the most sensitive areas of SAPOL was charged for having repeated sex with an under-aged girl. That was reported in TheAdvertiser on 17 August 2014. The man, then 50, could not be identified for legal reasons, which would certainly give rise to concerns, and certainly any references of this situation to ICAC would not allow this information to be publicly available for those who are in organisations working with children.

It has been shown that those intense and supposedly guaranteed screening provisions that SAPOL currently employs have been found at fault. This officer, in recent times, has been charged with under-age sex offences with a South Australian girl. Why should this chamber take the guarantees of this government that everything will be fine, and why should SAPOL not be subject to the same administrative burdens that everyone else will be?

The Hon. P. MALINAUSKAS: I think the important point here, in response to the Hon. Tammy Franks' reasonable question, is that, even if a working with children check had been in place for the case that you refer to—and I have been advised that the offender involved has, indeed, been publicly identified—but even if this bill had been in place, inclusive of your amendment, where a working with children check would have been required upon that particular officer, even if that had been in place, my advice is that it would not have necessarily revealed that particular offender in any event, because the SAPOL checks that are in place, I understand, are of an, in essence, equal nature to a working with children check. So, while the case that you refer to is horrific and of enormous concern, there is no evidence that I am aware of that suggests that, had a working with children check occurred in that particular instance, that offending would have been prevented.

The Hon. T.A. FRANKS: While I concur with the minister that there are no guarantees, even under this legislation, I am not convinced that there is no reason to exempt SAPOL officers from this legislation, and I note that the state government does not even have jurisdiction over AFP officers.

The Hon. P. MALINAUSKAS: I appreciate the sentiments of the Hon. Tammy Franks' remarks regarding this amendment, and maybe we can discuss it further when the amendment comes up. Again, what I would say is that the premise on which the government opposes your amendment is that there is no suggestion, and we believe there is no evidence or reason to believe, that your amendment would enhance or add any additional layers of security to what otherwise already exists through SAPOL's processes in and around recruitment and the ongoing checking of police officers who are in the service of the South Australian police force.

The Hon. A.L. McLACHLAN: We are still on clause 1, are we? I want to get back to the directorship issue a little bit later but since we are on SAPOL, if the minister is amenable, I will stick to the SAPOL issue.

The Hon. P. MALINAUSKAS: Sure.

The Hon. A.L. McLACHLAN: We seem to be debating it at clause 1, so wherever we are going to debate it, that is fine. For the benefit of the minister's staff, I would like to tease out some of my other questions regarding budgets and some assurances that we have our ducks in a row before this bill launches. On the SAPOL issue, I understood the minister's answer on the initial check, and I suppose where the Liberal Party is coming from is that police officers are great contributors to the community in their volunteering, so they are not always police officers, and I accept the minister's assertions in relation to their initial checks.

I am a little unclear about the ongoing mechanisms in a police officer's life. So, let us say they have a 20-year life. They have been properly checked. I am looking for some comfort that if they committed an offence interstate or something like that, it is immediately recorded in police internal processes, and I think it is correct that it is. I would like a better understanding of how those risks are managed. I know the minister has given an explanation, but I was just trying to absorb it so that the Liberal Party can get some comfort that, for a police officer with a longstanding record, we mitigate that risk, particularly in relation to their community work.

Perhaps I could assist the minister. My understanding of what he has told the chamber is—and I am not challenging it, I am just trying to get it clearly on Hansard where we are sitting—an individual who is not in a command and control environment where they are checked has to have one every five years. In essence, the state is saying that the volunteer organisation which they are volunteering for revisits the issue every five years and checks whether they have any other complaints or criminal convictions. So, we have a level of risk between the five years.

In a police environment it is immediately alerted, from the ancillary agencies, whether that person is a police officer and whether or not they are volunteering. Therefore, that will impact their occupation and be alerted to the police commissioner. The risk is therefore being mitigated and does not require a review every five years since it is constant in the police force. Is that a fair summary of how the police are mitigating the risk of not having to check them formally every five years? There are ongoing mechanisms for it to be brought to the commissioner's attention and therefore we are not carrying the risk when they are volunteering for the football club.

The Hon. P. MALINAUSKAS: I thank the Hon. Mr McLachlan. Your question is a very good one. I am happy to repeat something that I said earlier. This will not necessarily be exactly what you have just stated. For the sake of clarity, SAPOL has advised us that once a police officer is employed, any suspected, alleged or detected offending by a police officer will be referred to SAPOL's Ethical and Professional Standards Branch. Where decisions would be made regarding the employee's placement and work actively whilst investigations were undertaken, that would take place.

As I said earlier, the process would apply regardless of whether the offending occurred on or off duty, and would include referral to the Police Ombudsman or possibly even the ICAC. I do not think anything I have just stated really directly answers your question about what SAPOL specifically do on a regular checking basis. Along the same lines that you refer to, I have to say my sense of it would be that SAPOL do have those processes and procedures in place. I am happy to go away and ask more questions of SAPOL directly to get some assuredness from them, but the information that I have read out is what we have been advised.

Notwithstanding the specifics of your question around the five-yearly checks, my advice is that we do not have any reason to believe that, by adding a working with children check upon SAPOL staff, you would get any additional confidence than what otherwise already exists through SAPOL's processes.

The Hon. T.A. FRANKS: I am just going to gently remind the minister that clause 9, when we get to it, also includes the Australian Federal Police. What power does he have to bring back an answer with regard to that?

The Hon. P. MALINAUSKAS: Your question was specifically in respect to power. My power over the Australian Federal Police is essentially non-existent. What I can commit to is trying to seek that information from the Australian Federal Police and I would hope for their cooperation. In terms of the jurisdictions and experience in working with the Australian Federal Police, there is a good working relationship, so I am happy to seek to acquire that information for which you ask. My advice is that what we see contained within the bill now reflects current practice, which in the government's view has worked well up until this point.

The Hon. K.L. VINCENT: If I may just add a couple of thoughts with regard to the Hon. Ms Franks' amendment. I do not want to labour the point, but I think it is important that we are clear. If I understand correctly, the minister's main point for opposing the amendment is that it would add, I suppose, what he sees as an unnecessary layer of bureaucracy and administration because the checks that police officers already undergo by virtue of being police officers are very similar to a working with children check. Is that correct?

The Hon. P. MALINAUSKAS: More or less, yes.

The Hon. K.L. VINCENT: I suppose you could argue, could you not, that no check is infallible? Any check, whether it is the check you undergo to become a police officer or a working with children check, cannot be infallible because it relies on current information which could change very quickly after that check was done. So, I am just not sure, given that no check is really infallible or 100 per cent guaranteed to be accurate, what damage there is in adding that additional check. Does the minister want to respond to that first?

The Hon. P. MALINAUSKAS: Your question, the Hon. Ms Vincent, is exactly the right one in our view in the context of the value of this particular amendment. Your question, quite rightly, is: why would you not agree to this check if it adds an additional layer of comfort or security? Our response to that is that our advice is that this check does not do that.

In light of the policies and procedures that are already in place that apply to members of the South Australian police force, and in light of those being already in existence, it is the government's view that the additional working with children check does not add anything in terms of comfort and security. Your point about no check being infallible is precisely right.

In the knowledge of that, does that mean that the procedures and policies that are currently in place within SAPOL are infallible? No, nothing is, but then the question is: does the working with children check add to it? The government's position is that that is not the case and therefore it would achieve little more than simply adding an additional administrative burden.

The Hon. K.L. VINCENT: In asking that question, I was aware that it could be interpreted almost either way, so I appreciate the minister clarifying his thoughts. Another point that I wanted to make is that I think we need to not pretend that police officers are the only workers who are subjected to somewhat annoying administrative procedures.

I think back to very recent times where there were some delays in the administration of DCSI checks, and where, for example, disability support workers (off the top of my head), who may have been returning even to the same agency or same department after parental leave, for example, had to go back through those checks and do them again, or do different ones for working with different people.

I appreciate the minister wanting to cut down administrative burden, but I do not think police officers are the only people subjected to that. Ultimately, if all it does is add a layer of comfort and security, as the minister says, and not necessarily achieve any additional safety, given the many troubles, to say the least, that we have had in the area of child protection in recent times, do we not owe it to the community to add that additional layer of security? Could the minister respond to that?

The Hon. P. MALINAUSKAS: Again, your questions are the right ones, and I come back to the same point: if the government was of the view that by making the working with children check apply to SAPOL, and was of the view that that check applying to SAPOL officers would provide an added degree of security or added degree of comfort around those officers not having any offending history or any problems that would otherwise appear, then the government would likely support it, but that is not the government's position.

The government's position is that, by adding the working with children check, it is not doing anything else, apart from replicating the process that is otherwise already occurring, which means that you will get all the additional burden and administrative red tape that comes with it, but not with any gain, so therefore why do it?

The other thing the chamber might do well to take into consideration is that we have a large number of men and women who are in service within SAPOL, indeed a number that is growing, as I have mentioned on other occasions. It is a large number of people. If the Tammy Franks' amendment were to succeed, which it may well, then of course that is an additional number of in excess of 4,000 people who will have to undertake a working with children check, which of course puts additional demand on the screening section that will have to undertake that work.

We would hate to see either additional costs being put in place or delays for other screening checks being put in place for not much gain. It is not a simple matter of saying, 'Hey, let's put the working with children check on top of SAPOL.' Sure, it may cost to have some administrative burden, and sure, it may not necessarily add to additional security, but what do we lose? We do not lose anything. I do not accept that argument.

It is not simply an issue of more administrative burden for SAPOL; it also has the consequence of having more work for the screening unit within DCSI which will be work that they would have to do without any particular gain, but could potentially be at the expense either of the requirement of additional resources and costs to the South Australian taxpayer or, alternatively, potentially other delays for those people undertaking the screening check.

The Hon. K.L. VINCENT: One last point if I may: thank you to the minister for those answers to what were not necessarily my thoughts but some sort of, I suppose, devil's advocate questions that I think people out there in the community would ask, and it is important that we understand the answers so that they can understand them. Can I summarise the issue by asking the minister to clarify whether my understanding is correct? My understanding is that the government's reasons for opposing these amendments are not because police officers, men or women, are viewed as some special category of persons who are infallible and automatically trustworthy; it is simply because of the administrative issue and the lack of proven outcome from the amendment. Is that correct?

The Hon. P. MALINAUSKAS: The tenet of your remarks is correct, yes. The government's position is not because we believe that somehow police officers are infallible just by nature of being a police officer, but rather because for someone to become a police officer and remain a police officer there is a high degree of scrutiny attached to that with and of itself. The government's position does not rely upon the fact that just because someone becomes a police officer we think that that automatically elevates them, but rather because being a police officer inherently has a whole range of checks that are already attached to it.

The Hon. T.A. FRANKS: I indicate that I am happy to have the debate at clause 9 with regard to the rest of this; I certainly have not finished some of the things that I have to add. My final question at clause 1 is: with the seven-day amount that has been set, how is that seven days defined? Is it seven contacts, which could be as little as 20 minutes over a period of seven times? Is it a working day of 7½ hours cumulative? How is the seven days defined?

The Hon. P. MALINAUSKAS: I am advised that if you have a single contact in a day then that is calculated as a day.

The Hon. A.L. McLACHLAN: I will touch upon the SAPOL issue and we may revisit that—

The Hon. T.A. Franks: I will definitely be revisiting it.

The Hon. A.L. McLACHLAN: We will definitely be revisiting it, according to the Hon. Tammy Franks. I have some other issues at clause 1, but just on SAPOL. I still have a problem, just to break it apart, with the Australian Federal Police. I would like some comfort that SAPOL or the government have spoken to the Australian Federal Police and have received comfort that their practices and procedures mitigate the risks, as the minister has given the assurances in relation to SAPOL.

I do that from a purely technical perspective because I know how these bills get drafted, and it is a reasonable assumption, but we are dealing with child protection, and this is not one of the bills that I really want to be legislating on the basis of an assumption. If the minister can give me some assurances or an answer, I am happy to report progress and within a couple of hours come back. I am very amenable to all of that, and then I will talk a bit about SAPOL.

The Hon. P. MALINAUSKAS: I am not in a position to provide you with a specific assurance that the government has spoken to the AFP specifically about this. I want to be clear about that. However, I am able to say that it would be an eminently reasonable assumption to say that, considering that each of the police jurisdictions around the country, including the AFP, do have an incredibly close working relationship and work collaboratively, the same sort of standards and procedures that apply within SAPOL also apply to the AFP.

That is a particularly reasonable assumption considering that officers within the AFP often come on secondment from organisations like SAPOL. If the Hon. Mr McLachlan and the opposition were looking for some comfort or assurance, they should take some from that fact itself. However, I want to be clear that I am not in a position—I wish I was—to say that the government has had a recent dialogue with the AFP about this issue specifically. I have also been advised that we would not reasonably be able to do that in two hours, in any event.

The Hon. A.L. McLACHLAN: I appreciate the minister's answer. It does cause me some concern, given the nature of the bill, and let's say, the community discussion, because these are quite symbolic exclusions. It is not that I am arguing back to the minister. I think it probably is a reasonable assumption, but a reasonable assumption with this type of bill is difficult. This chamber will not bathe itself in glory if a federal police officer at a community group in Adelaide commits an offence in the days after the passage of this bill.

It will not cover itself in glory if we cannot say to the community that the government has gone from government to government—which is not difficult, although I appreciate that in the time frame it might be—and the government, because of that dialogue, has the assurance and the minister can give the assurance to the chamber. That is what the opposition is looking for.

In any other bill, we may well take the reasonable assumption, but we are dealing with children. Certainly, the minister has given the assurance in relation to the SAPOL component but I know that they are linked. This bill concerns child protection, which is highly sensitive in the community, and we cannot feel comfortable with the exclusions on reasonable assumptions. I want to emphasise to the minister that I am not trying to be particularly difficult.

The Hon. P. MALINAUSKAS: Rest assured that I share the Hon. Mr McLachlan's high degree of consciousness around community expectations in this particular area. I think all of us share the endeavour of trying to protect our children as best we possibly can. People who have a commonality of interest around this important subject can reasonably arrive at different conclusions, so I genuinely appreciate the Hon. Mr McLachlan's position.

The Hon. Mr McLachlan mentioned the exemptions being symbolic. I accept that I could be wrong about this, but my assessment is that community confidence within our respective police forces is high and I think that is not without good reason. As I said before, in light of the interoperability that exists between SAPOL and the AFP, I think it is a reasonable assumption that the sorts of standards and checks that are in place within SAPOL also apply within the AFP.

Again, I come back to the threshold question regarding this particular amendment, and that, of course, goes back to your concern about children. You said that this house would not be covering itself in glory if an AFP officer somewhere did something wrong. We should be constantly reminding ourselves as a community that, even with the passing of this legislation, there is no 100 per cent certainty that people who have taken a working with children check are not at risk of doing something wrong. The threshold question as far as the government is concerned is: if this amendment were to succeed, does it make anyone any safer? Again, it is the government's position that that is not the case.

The Hon. A.L. McLACHLAN: I want to make some comments on SAPOL in a minute. The minister may well be completely accurate in relation to the Australian Federal Police. My issue is a question of process, rather than risk. What I would like to hear is that the government, or the government's agents, have made a conscious decision in relation to the federal police, have not made an assumption, have had some dialogue with the Australian Federal Police and have formed the view that they are comfortable.

If that view is then communicated to the chamber, I can say that the opposition would be in a position where it had sufficient comfort not to support the amendment. The minister has given me, I think, sufficient assurance in relation to SAPOL in relation to level of risk. It is a question of process, rather than arguing against the minister's assertions, but they are linked together, unfortunately, in the one clause, which is why I raise it at clause 1.

Listening to the minister, in relation to SAPOL, it is my view that volunteer organisations are not the police. They are effectively innocents in the community, and that is why we are imposing checks to give them and the people they employ comfort, thereby reducing risk. Police officers are living in a command and control environment where they are constantly under scrutiny and there is a series of mechanisms in place when they commit an offence, whether in a civilian capacity or on duty. Therefore the nature of the check, even if they were checked, does not heighten the risk. They are simply checking whether they have anything on their records and, when a police officer has something on a record or incurs an offence, the commissioner is immediately alerted.

I am comfortable that, for a SAPOL officer, the risk is not heightened by having a check. The minister may want to correct my understanding there, but that is generally how I see it. I thank the minister for giving us the comfort on SAPOL. It is really a question of process in relation to the Australian Federal Police because, regarding legislating on reasonable assumptions, as an old lawyer, I can tell him that assumptions are dangerous. We would be happy to report progress and give the minister the opportunity to check whether there has been communication between the Australian Federal Police, the South Australian police and the government. If that assurance can be given, we will probably be minded not to support Tammy Franks' amendment.

The Hon. P. MALINAUSKAS: Again, I understand the sentiments of the Hon. Mr McLachlan. A crucial piece of information has been brought to my attention, which I hope may go a long way to satisfying his concern. I have just been advised that the commonwealth Royal Commission into Institutional Responses to Child Sexual Abuse, as part of its final recommendations regarding working with children checks, actually recommended that the exemption that applies to all police officers, including the AFP, should apply.

I hope that this recommendation of the commonwealth royal commission might be something that the opposition would take into account in contemplating this bill. My advice is that that commonwealth royal commission recommended this course of action in regard to providing exemptions to police, including the AFP.

The Hon. A.L. McLACHLAN: I thank the honourable minister for that information. I am going to need an opportunity—not necessarily during the course of this debate—to read that part of the royal commission, if I could get the references from the staff. We can proceed the debate before we move the amendment, and if I could get a chance to read it in the break, before this afternoon. I put that option on the table.

The Hon. R.L. BROKENSHIRE: Just following on, relevant to clause 1, but specific to clause 9 and the mover of the amendment, I would like a little bit of clarification as to the meaning of 'excluded persons' and 'for the purposes of the act the following persons are excluded.' It is not only a member of the South Australia Police or the Australian Federal Police, there are actually five subsets of people that are excluded.

As someone, on behalf of Family First, who has always been proactive with generally supporting police matters, I think there is another question that we have not had explained properly or, if we have, then I have missed it, and that is: how was this developed; what was the work that was done behind it to come up with these five sets of groups—if I can put it that way—that have been excluded, when we do have the alternatives about child safety? The chamber needs an explanation.

Like my colleague the Hon. Andrew McLachlan said, if the minister wants to take a little time and come back later on this week—because this has been quite quick, the way this bill has been brought upon the chamber. We have to be careful of unintended consequences. My history in this parliament tells me that when we rush through things we often do not get them right. I think it is fair to say that all members of parliament, from all parties, want this right. There is not one member of parliament that I have ever spoken to that does not want the absolute best protection for children.

I think there needs to be some sort of detailed explanation as to the science behind how this actually came up in the first place. I ask the minister to take that on notice and to report back to the house, or to report now to the house, on how this was developed.

The Hon. P. MALINAUSKAS: I thank the Hon. Mr Brokenshire for his question. The Hon. Mr Brokenshire may not have been in the chamber yesterday when I gave a rather lengthy second reading speech that dealt exactly with some of the questions that he has referred to.

The Hon. R.L. Brokenshire: I was not here for all of it.

The Hon. P. MALINAUSKAS: It was pretty lengthy. I would probably avoid reading it all out again, but what I am happy to do is to provide the particular section that I am referring to to the Hon. Mr Brokenshire so he can have some time to reflect upon that.

The Hon. R.L. BROKENSHIRE: I will accept that and I would like to see a copy so that I can actually digest that as soon as possible.

The Hon. K.L. VINCENT: To follow on from what my other parliamentary colleagues have said, we are walking a bit of a difficult tightrope here because, on the one hand, we want to get this bill through to make sure that children and young people do not unnecessarily fall through any gaps that currently exist in child protection law, but, on the other hand, we do not want to rush it and we want to make sure that what we do put in place, in law, is comprehensive and effective.

If I could return to the first part of the Hon. Mr McLachlan's question, because I do not feel that was particularly answered directly. Does the minister intend to make contact with the Australian Federal Police to clarify their procedures? I appreciate that he is reasonably confident that their procedures would mirror ours with respect to this issue. As has already been said, I do not think we want to work on assumptions in this area. Will he make contact with the Australian Federal Police to clarify that, and, if necessary, would the government support reporting progress to allow him the time to do that?

The Hon. P. MALINAUSKAS: The government is currently working on extracting the specific recommendations from the federal royal commission report that I referred to, which in themselves, I hope, might provide some clarity around the answer. That work is being undertaken, so we are able to share it with the chamber. The answer to your question about whether there is an intention on my part to rush out of the room and call the AFP is no. The reason for that is that the government's objective is to get this bill in place as quickly as it can, so that those people who might be falling through the cracks now get picked up.

So, there is a degree of urgency that underpins the government's desire to get this bill through. It principally rests upon, we think, the legislation representing a positive reform that can provide a substantial benefit to the current existing arrangements. To delay would be to delay their implementation, which would in and of itself carry some risk. We are all about trying to minimise risk. We are working on getting that commonwealth royal commission recommendation, which hopefully will reveal some detail behind why the recommendation was put in place and which hopefully will satisfy honourable members' legitimate curiosity. As it stands, there is not an intention to delay this process of getting the bill through in order to pursue that information.

The Hon. T.A. FRANKS: Just for the information of members of this chamber, I note that even should my amendment to clause 9 get up, that (e) would still stand under that clause:

any other person of a class declared by the regulations to be included in the ambit of this subsection.

I assume that then there would be a reference to both members of SAPOL and the AFP in a form that is perhaps more nuanced and that gives the ability for the appropriate consultations to be undertaken. I will debate the rest of it when we get to clause 9.

The Hon. A.L. McLACHLAN: Just to come back to the directors' liability: I am trying to tease out the policy objectives. We are not seeking to amend the clause. One of the great incentives of corporate life is director liability. I am just interested in the policy decisions—

The Hon. P. Malinauskas interjecting:

The Hon. A.L. McLACHLAN: Now that I am in parliament, maybe my view has changed, minister. These checks are extremely significant. In context, I am thinking of directors of volunteer organisations—so we are really driving behaviours. There is a significant financial penalty for a corporation, and most charities are companies limited by guarantee, so they will be covered by it. I am interested in why the government decided not to—and this is not a criticism, because they can be done for accessory, so I accept the other mechanisms—go the extra yard and put in provisions that crystallise the minds of the directors.

The reason I am asking is that, having spent a lot of time volunteering on not-for-profit boards, I know that often directors are very hands-on; they are active in the body of the organisation. At the same time, they may carry significant financial reserves. I suppose I am querying whether we have created a sufficient incentive for ensuring that checks are in place and why we decided not to go the full extent. It may be that the government takes the view that it is a sufficient incentive for compliance.

The Hon. P. MALINAUSKAS: The government is very conscious of the fact that this legislation, once passed, will apply to organisations all and sundry, including tiny little sporting clubs and so forth. Again, it is all about trying to make sure we are getting the balance right. We believe that the checks that are currently in place in the current regime can provide some assuredness but not add additional liability to some ordinary mums and dads who are just trying to volunteer for the local soccer club. It is about trying to get that balance right, and we think that the current arrangement is the appropriate one.

The Hon. A.L. McLACHLAN: I do not think, given that answer, that I am challenging the minister's answer. That is really what I want to get on Hansard, that parliament is going to strike the balance between small and large organisations. Vicarious liability might be too heavy, but I think it is worth having the discussion, because if there is continued non-compliance, then the government of the day is going to have to think about other actions to create the necessary behaviour. For the best checking system in the world, you need to have the checks, and there is always an anxiety to get people employed, which is a great segue to the other questions I raised in my second reading.

Could the minister give a bit of a summary of how we go forward in an administrative sense now? We have the office. How far are we advanced in setting up this office and the resourcing of the office? This legislation, leaving aside the one issue, is something the opposition strongly supports, but it is all going to fall in a heap if we have a backlog of checks. Given that we have increased the penalties, there will be a lot of anxiety in the community to get moving, so I am really looking to close off that issue that has been expressed in the community.

The Hon. P. MALINAUSKAS: I have been advised that a new and enhanced unit is being built upon the existing DCSI Screening Unit as we speak. The DCSI Screening Unit is currently in discussions with decision and policymakers within government regarding what additional resources will be required in order to beef it up to be able to do the expected additional work. The DCSI Screening Unit is already funded for continuous monitoring by mid-2017. Once this legislation is passed, I am advised that a further bill with consequential and transitional arrangements for existing checks will need to be introduced.

Once the regulations have been consulted on—and it is the government's intention to have wide consultation regarding the regulations—then of course there is the intention to have a significant communications strategy put in place to ensure that members of the public understand what the new rules and obligations are as a result of those new regulations in the new bill.

The Hon. A.L. McLACHLAN: I thank the minister for his answer. Making the assumption that this bill passes the chamber this week and the Governor is minded to sign assent to it and a communication plan, when are we looking at—and I am not looking to commit the minister—this being active and live in the community in its new form?

The Hon. P. MALINAUSKAS: As soon as reasonably possible.

The Hon. A.L. McLACHLAN: Taking a guess, I suppose we are looking at the first quarter of next year. That is not unreasonable? I am not looking to bind the government.

The Hon. P. MALINAUSKAS: I appreciate the Hon. Mr McLachlan's understandable attempts to put a time line in place. I do not think you are seeking to bind us to any sort of time line that I would outline here, but I am very conscious of the fact that if I articulate a time line on the record, that may unnecessarily or unintentionally create an expectation around a specific time line. The government's priority is to get it right, as is yours, I know.

We acknowledge that it is going to take time to do that consultation around the regulations. I am not trying to be flippant or cute; we do want to try to get this in place as soon as we reasonably can, but acknowledge that, yes, it will take some time to do the regulations and get it right, as you reasonably understand.

The Hon. A.L. McLACHLAN: That is probably all I have at clause 1. I thank the minister for his responses. On behalf of the Liberal Party, we are really looking for that understanding of the recommendation and the reasoning behind it. I would anticipate that, if that is sufficiently comprehensive, the Liberal Party could probably make its decision.

Clause passed.

Clauses 2 to 8 passed.

Clause 9.

The Hon. T.A. FRANKS: I have some questions around this clause. As I noted earlier, in section 9(1)(e), 'any other person of a class declared by the regulations to be included in the ambit of this subsection' will, through regulation, become part of this category of 'Meaning of excluded person'. At the moment, what are the government's intentions in terms of these categories of excluded persons?

The Hon. P. MALINAUSKAS: The answer to the Hon. Ms Franks' question is yes. It is the government's intention that, through the consultation phase of the regulations, we will be exploring a mechanism or regulation that would provide for a parental exemption for a parent who is involved in a volunteering activity relating to their own child.

The Hon. T.A. FRANKS: So, that is the only category that the government is currently considering? Will it be open to further categories being added?

The Hon. P. MALINAUSKAS: Of course it is open to it, that is the nature of the words that are written there, but, as it stands, the government does not have any specific intention.

The Hon. T.A. FRANKS: With 1(c), which is the subject of the amendment that I shall shortly move, a member of South Australia Police or the Australian Federal Police is here outlined as being within the definition of the meaning of an excluded person. What is the meaning of 'member'? Is it a sworn officer? Is it a community constable? Is it a police prosecutor? How broad or narrow is this definition of 'member'?

The Hon. P. MALINAUSKAS: My advice is, it is sworn officers.

The Hon. T.A. FRANKS: Why then did the government not ensure that in this bill it said 'sworn officers'?

The Hon. P. MALINAUSKAS: It is my understanding that this is the standard terminology used for a person who is a sworn officer within a police force. If you are a member of South Australia Police, you are a sworn officer of South Australia Police. That is what I understand is the usual terminology.

The Hon. T.A. FRANKS: Does that mean that a community constable is not a member of the South Australian police force?

The Hon. P. MALINAUSKAS: My advice is that a community constable is a member of the South Australian police force, but someone working in SAPOL bureaucracy, for instance, is not.

The Hon. T.A. FRANKS: Is a police prosecutor a member of the South Australian police force?

The Hon. P. MALINAUSKAS: A police prosecutor is a sworn police officer, so, yes, they are a member of the South Australian police force; that is my advice.

The Hon. T.A. FRANKS: So, in 2009, Andrew Robert Macdonald Storr—who was a former police prosecutor who was convicted of multiple sex offences against a girl aged 15 in Whyalla and Taperoo, and in 2004 a 13-year-old girl in Whyalla, for offences that had happened in 2007—would fit in this definition of a member of the South Australian police force; is that correct?

The Hon. P. MALINAUSKAS: I do not enjoy being familiar with the detail of that particular case in the same way as the Hon. Ms Franks, but I note that in your question, you referred to the offender as a former police prosecutor. Were they a police officer at the time of offending?

The Hon. T.A. FRANKS: Indeed, he was.

The Hon. P. MALINAUSKAS: Again, we come back to the threshold question, which is: if this legislation passes with your amendment, would that have prevented the offending that you are referring to? You raised a specific example, which is always useful. The question is: had that check been in place, would it have prevented the offending that you are referring to? I have not been presented with any evidence to suggest that that is the case.

The Hon. T.A. FRANKS: The minister has outlined the extensive—which I do not doubt for a second—screening processes that take place within South Australia Police upon entry into the force. Do these processes occur every five years, or periodically, and at what period do they occur?

The Hon. P. MALINAUSKAS: Again, I refer back to the remarks I gave earlier, which is that SAPOL has in place, obviously, substantial checks prior to someone entering the police force. Regarding their ongoing monitoring, if there is ever any suggestion or allegation that a police officer has done the wrong thing, then that is something that is reviewed through internal police mechanisms as they occur. So, it is real-time reporting that occurs within SAPOL, is my advice. If a police officer had any allegations made against them that they did anything wrong during the course of their tenure as a member of the South Australian police force, then their position would be actively reviewed.

The Hon. T.A. FRANKS: I move:

Amendment No 1 [Franks–1]—

Page 10, line 28 [clause 9(1)(c)]—Delete paragraph (c)

I so move because, under the meaning of 'excluded person' for the purposes of the Child Safety (Prohibited Persons) Bill, we have seen the government take a decision to exclude in their entirety any member of South Australia Police or the Australian Federal Police—the Australian Federal Police, of course, not even falling within the jurisdiction of this government, as has been admitted in this committee process.

I move this amendment because it is a blunt, ill thought-through and ill-considered blanket exclusion. This is a category of person who is highly respected and trusted in our community. However, this bill we have before us is because categories of people who have been highly trusted and highly respected have been shown to be guilty or have slipped through the net and have been able to abuse children.

We know that it is those in these positions of trust who should not be beyond reproach, and with the measures we will see come into place in this government—and I welcome these measures—we will see regular five-yearly checks, not a single check and not anybody who, by virtue of their employed position, is not subject to the scrutiny as it should be.

The government does not, here in its exemption, have a member of the South Australia Police or Australian Federal Police who has complied with a screening check in the past five years; it simply has a blanket statement of 'any member of the South Australia Police or the Australian Federal Police'. It is actually a lesser standard being applied here to that category of person than will be applied to all people captured by these working with children checks.

I note that the government has stated that this may lead to undue administrative burden. While I would say that that is part of the whole reason for our having this bill, the streamlining of the checks is the relief of the undue administrative burden, the fact that we will have them every five years, the fact that somebody in a position does not have to go and get them at lesser intervals or for different positions. Taxi drivers who go months without being able to continue their work as a taxi driver, having been caught out by the lack of administrative support for previous police checks in this state and who have been literally unable to pay the bills, will not be caught in the future, we hope, by these changes because the government is finally streamlining these processes and putting in, I hope, the resources they need.

I would say that, yes, this will be a taxpayer burden, and the mum of that under-age girl is a taxpayer who is probably welcoming this burden being placed on those in positions of trust. I think the government has not thought out (c) with the level of detail that it should have. I note that there was not even a response, with regard to second reading speech questions, as to why this category—a member of South Australia Police or the Australian Federal Police—was included in the bill. We had to wheedle it out of the government through a painful clause 1 questioning process. It should have been up-front, and examples should have been provided readily by the government as to why they have sought a blanket exemption for an entire category of person because of their profession.

I note that (e) will still stand, 'any other person of a class declared by the regulations to be included in the ambit of this subsection.' I know that the police and the AFP, in a proper and thoughtful manner, can likely be put in through regulation, with the due diligence done by government and the community consultation that should be required, to make sure that we do not just get this passed quickly but that we get it passed correctly. We do not want to just rush through child protection measures; we want to get them right.

The Hon. P. MALINAUSKAS: I am working through not just the recommendations for the Hon. Mr McLachlan but also the detail provided, which I am aiming to get to him as soon as I can. In the meantime, I will filibuster, but with a degree of passion because there are a few things regarding the Hon. Ms Franks' remarks that need to be checked. The first one is this: it is not the suggestion on behalf of the government that someone in the profession of an officer within SAPOL should automatically be precluded from having a level of scrutiny attached to working with children—quite the opposite.

It is the government's position that the fact that they are a police officer necessarily means that an enormous amount of scrutiny is already applied to their work. The object of the government is not to avoid additional administrative burden; the object of the government is not to avoid additional costs associated with making over 4,000 police officers have a working with children check. That is not the object of the government's opposition. It is a bit more nuanced than that. I know the Hon. Ms Franks is more than capable of understanding this.

The government's position is that, by having the working with children check, it does not add anything more in terms of comfort or security than what already exists within SAPOL's processes. It is not as if the government is saying, 'Oh look, let's try and find a group of people who we can exempt so as to avoid an administrative burden or cost.' Not at all. That is not an arbitrary cause on behalf of the government. Rather, what the government acknowledges is that for those men and women who find themselves in the service of the South Australian police force, that means they are already subject to enormous amounts of scrutiny and checking, not just at the commencement of their employ, but throughout their career.

Therefore, what would be the gain, what would be improved as a result of someone in that position having the working with children check applied, bearing in mind that it is the government's position and SAPOL's advice that it does not add anything? There is an important distinction from saying that the government is somehow trying to relieve itself of a cost or an administrative burden, versus saying the government has at its heart the objective of ensuring that those people who are subject to a working with children check are able to have that check dealt with diligently in the knowledge that there are not a swathe of people going through the process, that it is doing nothing more apart from duplicating what has already occurred within SAPOL's processes.

That is our objective, so the sort of rhetoric and tone that implies the government is somehow trying to avoid a bit of scrutiny for South Australia Police is simply not true. It is our view that that scrutiny is already in place for men and women in the service of the South Australian police force and therefore there is no added benefit of duplicating the process.

The Hon. A.L. McLACHLAN: I am seeking from the government, prior to the motion being put to a vote, additional information of which the minister appears to have just been delivered. It is critical to allow the Liberal opposition to formulate its view on how it is going to vote in relation to the motion.

The Hon. P. MALINAUSKAS: I understand and appreciate the opposition's position as articulated by the Hon. Mr McLachlan. I am currently referring to the federal Royal Commission into Institutional Responses to Child Sexual Abuse, Working with Children Checks Report. I note that page 79 of the report refers to the exemption that applies to police officers, including Australian Federal Police members. It would be wise for me to put on the record exactly what it says here at point 5:

Police officers, including Australian Federal Police members, should be exempt. We note that police are already subject to rigorous screening practices in all states and territories, and most jurisdictions already exempt police officers. Further discussion is needed among the state and territory governments as to whether this exemption should be limited to work in an official capacity as a police officer.

It specifically states that police officers, including AFP members, should be exempt on the basis that those police are already subjected to rigorous screening practices.

The Hon. T.A. FRANKS: Does the minister have sympathy for the royal commission recommendation which said that the category of exemption should be limited to their professional work and not, for example, their volunteering and working with children?

The Hon. P. MALINAUSKAS: My advice to the Hon. Ms Franks is that the context of that remark was recommending that states and territories get together to ensure a degree of consistency across the country around what applies. That is indeed why the government has adopted the position that it has. It also goes in part to achieving that consistency, which is in the interests of all.

The Hon. T.A. FRANKS: Outside a COAG process, has the South Australian government decided that it is a blanket approach for all SAPOL officers and AFP, regardless of whether it is an overnight camp with a school, volunteering at a sports club or some other volunteering activity, and that this exemption will apply across the board and not just in the professional lives of these particular members of SAPOL and AFP? Is that the case?

The Hon. P. MALINAUSKAS: That is—

The Hon. T.A. FRANKS: I note that the minister has many times—

The CHAIR: Order!

The Hon. T.A. FRANKS: —claimed an amount of 4,000 which to me says that he is saying that it applies across the board and not to those officers who, outside of their working lives, seek to volunteer to work with children.

The Hon. P. MALINAUSKAS: I am simply stating through you, Mr Chair, that the federal Royal Commission into Institutional Responses to Child Sexual Abuse, in its Working with Children Checks Report recommended that the exemption apply. As I understand it and as I am advised, the recommendation is that the exemption apply to members of the police, including the AFP.

The Hon. T.A. FRANKS: I am simply inviting the minister to read the entirety of the paragraph again and recognise that there were still some decisions to be made as to whether or not that exemption would apply only in the working life of these particular members of the police forces or in their private lives, if you like, and in their volunteering activities.

The CHAIR: Minister, do you have anything more to say?

The Hon. P. MALINAUSKAS: I have nothing further to say.

The Hon. A.L. McLACHLAN: I thank the minister and his advisers, particularly, for their diligence. I know it is not easy bringing material to the chamber at the last minute. Whilst the Liberal opposition has great sympathy for the position articulated by the Hon. Tammy Franks, it has given a very public commitment that it will support the government in the progression of these bills. We will keep a watchful eye on this in relation to these exemptions.

The Liberal opposition, during the course of this debate, has formed the view that, given that there is no heightened risk because of this exemption at this time, and given that the commonwealth report has recommended the exemption be in place, the government has followed, I assume, that advice and has also made its own risk assessment that no child is placed at greater risk because of the exemption, given the nature of police service. On that basis, we will not be supporting this amendment.

The Hon. R.L. BROKENSHIRE: I acknowledge the good work that the Hon. Tammy Franks has done in basically flushing out further for the chamber an issue of concern that I think needed to be very carefully debated. I have now had a chance to read the minister's responses to some of the queries raised during the second reading. With my own knowledge of SAPOL being fairly extensive, and with the minister's further explanations, we will be supporting the government and not supporting the amendment of the Hon. Tammy Franks, notwithstanding that I think she has done a good job in making sure that it has been considered the way it should have been. It is on the record now for future consideration if things change.

The Hon. J.A. DARLEY: I will be supporting the Hon Tammy Franks' amendment because, if the ongoing record of the police is so good, I would have thought it was a simple matter to transport that information into the database that involves everyone else. It would not be too costly at all.

Amendment negatived; clause passed.

Clauses 10 to 43 passed.

Clause 44.

The Hon. P. MALINAUSKAS: I move:

Amendment No 1 [Police–1]—

Page 24, lines 31 and 32 [clause 44(1)]—Delete ', date of birth'

This amendment makes a change to the bill at the request of the Hon. Mr Darley. Clause 44 of the bill gives a parent the right to request certain information from a person who is performing child-related work in relation to that parent's child. Clause 44 reflects a current right, whereby a parent can request that a person provide evidence, for example, a letter from DCSI's Screening Unit, of a screening. Clause 44 allows the parent to request a full name, date of birth and a unique identifier. This information allows them to verify that a working with children check has been undertaken using the records management system.

The Hon. Mr Darley expressed concerns for a person's privacy in handing over this information, as opposed to the current provisions whereby the parent is shown a letter that contains the same information, but the parent can simply view the information, not take it away. This amendment removes the need for the person to provide their date of birth. We have been advised that it will be possible for a parent to check the records management system using a full name and the unique identifier to verify that a working with children check has been undertaken.

Please note, however, that an employer, or organisation engaging a person to volunteer to do child-related work, will still be required to obtain from the person their full name, date of birth, address and unique identifier and to use this information to verify, using the records management system, that the person has had a working with children check. The collection of this information would be part of the usual employment process in any respect. The date of birth needs to be captured in the records management system, as it is a key field in the checking process to match information such as criminal convictions that are continuously monitored.

Amendment carried; clause as amended passed.

Remaining clauses (45 to 53) and title passed.

Bill reported with amendment.

Third Reading

The Hon. P. MALINAUSKAS (Minister for Police, Minister for Correctional Services, Minister for Emergency Services, Minister for Road Safety) (12:29): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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