MS BURCH (Brindabella—Minister for Community Services, Minister for the Arts, Minister for Multicultural Affairs, Minister for Ageing, Minister for Women and Minister for Aboriginal and Torres Strait Islander Affairs) (12.05), by leave: I move amendments Nos 1 to 18, 20, 22 to 27, 29 to 39, 41 to 46, 48 to 50, 52, 54, 56 and 58 to 78 circulated in my name together with a table and explanatory statement to the government amendments [see schedule wwww at page wwww]. This landmark legislation underlinesthe Labor government’s strong commitment to ensuring vulnerable adults and children are receiving the best care at all times and they are as safe as possible.
If I may, Mr Assistant Speaker, just make some comments that was raised through Mrs Dunne’s motion to adjourn the debate and certainly earlier today. There was a late discussion with committee office to ensure that all government amendments had been through scrutiny committees at some point in time. We needed to provide urgent advice to the committee office regarding a small number of minor technical amendments as outlined below. This has been extremely complicated bill with multiple amendments arising over the course of the year.
Up until embargo yesterday, the directorate had—has believed that all material embargoed was cleared for debate. An issue was not raised by the secretarial until 8.45 this morning, and we have moved to rectify this as quickly as possible. I also understand that the committee is using this as an example due to the complexity of such amendments to talk to all Assembly liaison officers across government to ensure that appropriate processes are done in future for complex legislation.
The amendments were amendments 19, 21, 28, 40, 47, 51, 53, 55 and 57. The technical amendments related to working dates and were (a) a changing from one month to 20 working days and (b), 14 days to 10 working days. This change was made after the above first round of government amendments went to scrutiny committee for clearance prior to the debate first coming on in the March sitting and was a result of discussions with the ORS around their operational requirements. Unfortunately, Mr Speaker, they did not get back to the scrutiny committee with the latest round of government amendments provided around 14 October that were inadvertently missed during the timing of delay of the bill in March. So I do apologise to members here.
Mr Speaker, during the Assembly debate in March of this year, where in principle agreement to the bill was reached, I presented the definition of “vulnerable people”, that being “vulnerable people who are defined as children under the age of 18 and adults who experience disadvantage and as a result of disadvantage are accessing activities or services.” Regulated activities are those activities or services that will attract background checking from employers, employees and volunteers.
Staged implementation toff of the background checking system, cost of the employers of checking system and the amendments to the bill which would provide advisers being appointed that could provide the commissioner with advice on the potential risk posed by a particular applicant and any other aspects of registration and that the bill will comments 12 months after it is passed by the Assembly.
Mr Speaker, we have been on an extensive consultative process since that time. Comments were sought from over 1,300 stakeholders and members of the community. Vulnerable people government and non-government service providers, private counsellors and psychologists and representatives from the drug and alcohol sector, the mental health sector and the homelessness sector commented on these documents. I would like to that the organisation, agencies and individuals who have provided comment. They have been invaluable in improving the whole framework that we are debating here today.
The government has considered these comments received during the consulting including the Scrutiny of Bills Committee comments in reports 27 and 33 and the issues raised by my colleagues across the Chamber. The bill’s risk assessment guidelines and application form risk management assessment tool, government amendments and regulations have been amended, where appropriate. The community can be confident that the Bill and its supporting documents do not unnecessarily limit an applicant’s human rights.
I would like to thank the Standing Committee in report 42, on the Working With Vulnerable People (Consequential Amendments) Bill.
Mr Speaker, in March the government amendments to the bill were circulated and the Scrutiny of Bills Committee and these government amendments proposed to permit a person to voluntarily surrender their registration, to provide an applicant with the capacity to seek a review of a risk assessment decision based on new or corrected information, to clarify that all employers supporting students on school initiated work placements or practical training will require registration and change the phrase position based registration to role based registration and to remove the imprisonment penalty from strict liability offences.
Circulation of these amendments and additional government amendments to the bills were identified. In total 78 government amendments are proposed to the bill. 48 of these have been previously presented to Assembly members and considered by the Scrutiny Committee. I am presenting the Assembly with all proposed government amendments for debate today. The amendments add to the policy position of the bill and refine detailed aspects of the bill.
Of the 78 proposed amendments to the bill only one amendment significantly changes the working with vulnerable people policy. Previously new employees and volunteers were to be checked during the first three years of the background checking systems operation and existing employees were to be checked from years four to six of the checking systems operation. The community has told the government that they would prefer children up to the age of eighteen years to be afforded the protection of the checking scheme through the first year of operation. In response the government amendment will allow all new and existing employees and volunteers providing regulated services to children to be checked in the first year and all employees and volunteers providing services to both children and adults to be subject to checking from years two through to six of the scheme’s operation.
Mental Health and Drug and Alcohol sector had previously expressed concerns about how the Working with Vulnerable People (Background Checking) Bill 2010 would impact on their employees with life experience. These organisation’s employees working with vulnerable adults will be screened during the fifth year to allow sectors sufficient time to prepare for the reforms and this will occur over a review of the act in the fourth year of the implementation phase. Mr Speaker, no new background checks will occur during this year. The focus will be to identify what is working and how the background checking scheme can be improved during the implementation phase.
The ACT community requested a background checking scheme be simple to understand and be equitable and fair for the applicant. Extensive conversations with the community has occurred on the guidelines and the application form for registration.
The National Operators Forum brings the commonwealth and states and territories together under the national framework for protecting Australia’s children, working with children checks and the forum works toward establishing a nationally consistent decision making framework that guide decisions about suitability for employment. I am advised that the Greens will be proposing an amendment to the Bill which will result in the risk assessment guidelines being notified as a disallowable instrument and the government supports this amendment.
Also, Mr Speaker, stakeholders have said to us that they were concerned some people working with or wanting to work with vulnerable people may leave the workforce. They may be deterred by applying, they may be deterred from applying for working with vulnerable people registration as their lived experience will result in a negative risk assessment. Stakeholders identified people who may experience difficulties in completing the application form due to poor literacy skills. The government has recognised and responded to these concerns by calling for champions to be identified across the ACT community.
These champions, Mr Speaker, will provide support to individuals throughout the working with vulnerable registration application process including, where necessary, advocating on behalf or alongside the applicant. Stakeholders have been asked whether they wish to be included in a list of champions provided on the Community Services Directorate’s website. Mr Speaker, the Office of Regulatory Services will engage a health professional officer level 4 to assist with refining the background checking implementation approach as well as provide guidance on the appropriate consideration of lived experiences.
The Office of Regulatory Services background screening unit will be responsible for implementing the background checking scheme and the bill’s proposed regulations oblige employers who engage with people with conditional registration including role based registration to provide certain documents to the background screening unit. These documents identify the organisation’s risk management strategies and policies and procedures for compliance with the act.
Mr Speaker, the government has listened to the concerns raised by employers and have made the amendments appropriate to their concerns. The majority of stakeholders and members of the community want the checking scheme implemented in the ACT as soon as possible and the implementation phase of the working with vulnerable people background checking scheme will commence twelve months after the bill is passed by the Assembly.
But the government has not finished talking with the community on this matter. During the first twelve months of the bill’s enactment an implementation working group will be established. The draft governance structure for the working group has been provided to members and will be finalised in consultation with stakeholders. One of the group’s first tasks will be to agree how the community will know about the implementation of the checking scheme across all regulated activities and services.
Mr Speaker, if I may now talk to the amendments that I have circulated? Government amendment number 1 proposes to add new clause to the bill which provides the timeline for completion of background of all employees, volunteers and self employed people providing regulated activities or services. This new clause will compel people working or volunteering in regulated activities or services provided exclusively to children to be subject to the background checking in the first year that the scheme commences. The most vulnerable people in our community will receive the protection of the bill during its first year of operation.
People working or volunteering in regulated activities and services which can be accessed by both children and vulnerable adults are to be subject to background checking during years two, three, five and six of the scheme. The fourth year of the implementation will be dedicated to review of the operation. Employers and self-employed people will continue to be responsible for maintaining police checks pending their staff or their own registration under the scheme.
Government amendment 2 and 3, the bill required clarification that the exemption of students on school initiated work placements or doing practical placements includes those students in college. Similarly the bill required classification, clarification that some employers supporting students on school initiated work placements or practical training may not be required to be registered or have contact with vulnerable people. Government amendments 2 and 3 clarify that high school and college students on school initiated work placements or doing a practical placement and their employers can be exempt from registration.
Government amendment 4, the government amendment 4 exempts sworn police officers from other jurisdictions and other AFP appointees from registration. The inclusion of sworn officers from other jurisdictions and other AFP appointees was an oversight during the development of the bill and this amendment addresses the concern raised by ACT Policing.
Government amendments 5 and 6, exempt from registration those employees and volunteers whose only contact with vulnerable people is providing a service at the public counter, giving or receiving information by telephone or working with a record. Where the inherent requirements of an employee or volunteers role does include face to face contact with vulnerable people there is a lower risk of vulnerable people being subjected to abuse or neglect. It is not the intent of the bill to unnecessarily regulate employment or volunteers where the risk to vulnerable people is low. This amendment addresses concerns raised during consultations.
Government amendment 8 and other similarly proposed amendments to the bill remove the imprisonment element from the strict liability offences in the bill. People who knowingly engage in regulated services and activities for which they are not registered pose a risk to safety and security of vulnerable people. Therefore, the strict liability offences in the bill must reflect the seriousness of the offence and act as a deterrent. However, imposing a term of imprisonment is unlikely to be a deterrent to a person who knowingly commits an offence under the bill or for breaching the Act.
These amendments address comments made by the Scrutiny of Bills Committee in Report 27. Government amendment 14 adds the term “supervised employment” in the heading of clause 14. This amendment clarifies that this clause is applicable to unregistered people who are intending to engage in a regulated activity or service and that employers have an obligation to provide appropriate supervision to an unregistered person while they are engaging in a regulated activity or service.
Government amendment 16 proposes the addition of a new clause in the bill, which will ensure that unregistered eligible kinship carers and significant persons are able to take children into their care in an emergency situation without inadvertently breaching the law. At present, the bill does not permit emergency placements of children into the care of unregistered kinship carers or other persons who are significant to children or the child. The government is proposing this amendment to remedy this unintended consequence of regulating specific activities and services provided under the Children and Young People Act 2008. The proposed new clause does not compel the Office for Children, Youth and Family Support to place a child or children in the care of a relative or significant person when an emergency placement is required if they are not satisfied that the person is an eligible kinship carer. This amendment addresses concerns raised during consultations.
Government amendment 18 removes the requirement for an applicant to provide a statutory declaration with their application form when arising from convictions or relative offences which have occurred outside of Australia. Information regarding these offences will be able to be provided via a written statement. Government amendment 19 and other similarly proposed amendments to the bill clarify that where timeframes are imposed on an applicant or the Commissioner in the bill, these days are stated working days and not sequential calendar days. These amendments provide consistency between the bill and the Legislation Act 2001.
Government amendments 23 and 34 provide for the appointment of independent advisors. The Commissioner will be compelled to seek advice from a minimum of three independent advisors when considering the issuing of a role-based registration or when faced with a risk assessment decision where the complexities involved require the advice of experts in the field. There is no limit to the number of independent advisors who can be appointed. However, at least one of the independent advisors is to be an Aboriginal or Torres Strait Islander background.
Other independent advisors must have experience or expertise in relation to migrants and refugees; forensic or clinical psychology; children and young people; people with a disability; people with mental illness; drug and alcohol dependencies; or any other field necessary. The appointment of the independent advisors will be notified. Independent advisors to the Commissioner will not be convened as a group. The Commissioner will remain the final decision-maker and an applicant may still seek a review of the Commissioner’s decision.
The method for the Commissioner to seek advice from independent advisors and the method of providing advice to the Commissioner will be determined by the Implementation Working Group. The Implementation Working Group is to be established following the notification of the Working With Vulnerable People legislation. This amendment addresses comments made during consultation and the Human Rights and Discrimination Commissioner.
Government amendment 26, clause 33 provides the steps that must be taken by a person seeking a reconsideration of a proposed negative notice. Government amendment 26 changes the grounds on which a person can seek a review of the proposed negative notice. The person will ask the Commissioner in writing to reconsider the decision, rather than provide evidence of incomplete or incorrect information. This amendment addresses comments made by the Scrutiny of Bills Committee.
On government amendment 32, consultations with key stakeholders identified the meaning of “position-based” registration needed to be clarified. Key stakeholders agreed that the use of role-based registration was preferable. Role-based registration refers to a person’s role in a regulated activity or service, where the person can be registered to work in a role and whether the person can be registered to perform a set of activities. The use of the word “position” was considered a limited definition. Government amendment 32 proposes to substitute “position-based” with “role-based” in the bill and addresses comments made from the community.
Government amendment 38, clause 39 provides that steps must be taken by a person seeking reconsideration of a proposed conditional registration. Government amendment 38 changes the grounds, provided in the bill on which a person can seek a review of a proposed conditional registration. The person will ask the Commissioner in writing to consider the decision, rather than provide evidence of incomplete or incorrect information. The proposed amendment also compels the Commissioner to undertake a revised risk assessment as soon as practical on receipt of a person’s request for review. This amendment addresses comments made by the Scrutiny of Bills Committee.
Government amendment 44 proposes to add a new clause to the bill, which provides for a registered person to seek amendment of their conditional registration. A person holding a conditional registration, including role-based registration, may apply in writing to the Commissioner to seek the removal or amendment of a condition of the registration. If the Commissioner amends a person’s registration or refuses to amend a person’s registration, the Commissioner must tell the person in writing of the reasons supporting the decision.
Where the person seeking amendment of their registration has named an employer and the Commissioner has amended the person’s registration, the Commissioner will tell the named employer, in writing, that the person’s registration has been amended and the details of the amendment. The Commissioner will not tell the named employer of the reasons for the amendment and the amendment addresses comments made during consultation.
Government amendment 59. The bill does not provide for surrendering of registration. The government amendment 59 remedies this by creating a new division, which provides the registered person with the process for surrendering their registration. This amendment also compels the Commissioner to tell the employer, if any, that the person’s registration has been surrendered and this amendment addresses comments made by the Scrutiny of Bills Committee.
Government amendment 65 is to ensure that children remain a paramount consideration during implementation of the checking scheme and this amendment ensures that the checking of employees and volunteers working in youth justice facilities will occur during the first year of the implementation. Government amendment 66 ensures that employees and volunteers working in justice facilities for adults will be checked during the last year of the checking scheme. This amendment addresses the concerns and comments made during the consultation process. Finally, Mr Speaker, government amendment 69 ensures that no references to peer support programs in the bill. This amendment addresses comments made during the consultation.
Debate interrupted in accordance with standing order 74 and the resumption of the debate made an order of the day for a later hour.
