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1 Nov 2016

Child Safety (Prohibited Persons) Bill

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.

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