MS TIERNEY (Minister for Training and Skills) — I rise to sum up on the matter that was before the house before the dinner break, which is the Working with Children Amendment Bill 2016. As previous speakers have mentioned, the Working with Children Act 2005 was passed by the Victorian Parliament in 2005 under former Attorney-General Rob Hulls. Since 2006 people who work or volunteer in child-related work as defined by the Working with Children Act have been required to undergo a check of their criminal history, criminal information and relevant professional disciplinary findings. The check scheme is designed to minimise the risk of harm to children by ensuring that people who work with or care for children are subject to a screening process.
Support for the working with children (WWC) check in Victoria has far exceeded expectations. As of 30 September 2016 there have been almost 2 million working with children check applications received in the 10 years since the scheme’s commencement, so it is well subscribed, to say the least. What we have before the house tonight are five amendments that deal with recommendations from the royal commission. Of the items that were recommended, 13 represent a status quo for the Victorian scheme, 11 are contingent on commonwealth support and require interjurisdictional agreement for the WWC check regulators to amend their laws, 4 represent a diminution of the current Victorian protections, 3 require further work in other jurisdictions and 5 — the 5 I am talking about — are here with us today.
There have been a number of speakers, all of which have indicated general support for the bill before the house. There have been some questions or clarifications sought. One of the first has been in relation to what constitutes child-related work. What the government says here is that the bill before the house today needs to be read in conjunction with the act. Under these circumstances these amendments provide that it is work that is at or for a service, body or place that involves an activity specified in section 9(3) of the Working with Children Act 2005 that usually involves direct contact with a child.
Section 9(1A) of the Working with Children Act specifies that work is not child-related by reason only of occasional direct contact with a child that is incidental to that work. So it is quite clear in terms of what is child-related and what is incidental, and I will give examples in a moment.
The occupational fields that fall under section 9(3) of the Working with Children Act are: child protection services; childcare services mentioned in section 194(1) of the A New Tax System (Family Assistance) (Administration) Act of 1999 of the commonwealth; children’s services within the meaning of the Children’s Services Act of 1996; education and care services within the meaning of the Education and Care Services National Law (Victoria); educational institutions; out-of-home care services, remand centres, youth residential centres, youth supervision units or youth justice centres within the meaning of the Children, Youth and Families Act of 2005 or probation services under that act; refuges or other residential facilities used by children; accommodation services specifically provided for students in connection with the operation of a student exchange program under part 4.5A of the Education and Training Reform Act of 2006, including the provision by a person of accommodation in the person’s home; paediatric wards of public hospitals within the meaning of the Health Services Act of 1988 or of denominational or private hospitals within the meaning of that act; clubs, associations or movements, including of a cultural, recreational or sporting nature, that provide services or conduct activities for, or directed at, children or whose membership is mainly comprised of children; religious organisations; babysitting or childminding services arranged by a commercial agency; fostering children; providing on a publicly funded or commercial basis a transport service specifically for children; coaching or tuition services of any kind specifically for children; counselling or other support services for children; overnight camps for children regardless of the type of accommodation or of how many children are involved; school crossing services, being services provided by people employed to assist children to cross roads on their way to and from school; providing on a commercial basis and not merely incidentally to or in support of other business activities an entertainment or party service specifically for children; providing on a commercial basis and not merely incidentally to or in support of business activities gym or play facilities specifically for children; providing on a commercial basis and not merely incidentally to or in support of other business activities photography services specifically for children; and talent or beauty competitions held for children on a commercial basis and not merely incidentally to or in support of other business activities.
In addition to these, despite any other provision in section 9, work engaged in as a minister of religion is child-related work unless any other direct contact with children during the work engaged in as a minister of religion is only occasional direct contact that is incidental to that work, and if a minister of religion is the appointed leader of a local religious congregation in an organised religious institution and the congregation contains any children, work engaged in as a minister of religion is child-related work. I think that deals with what is child-related work as opposed to incidental work.
There was also an issue in relation to the non-conviction charges and how this would affect a person who was wrongly charged. There was a question about how this interacts with the expungement of historical homosexual offences, as I understand it. Sections 11(1)c and 21AA(1)(b) of the Working with Children Act 2005 allow the secretary to make inquiries or seek information from any person or source that the secretary thinks fit. These sections are utilised to gather information from law enforcement agencies such as Victoria Police and the Office of Public Prosecutions.
If information is provided to the secretary in relation to a non-conviction charge that a person was wrongly charged, this information will be used to assess whether a person poses an unjustifiable risk to the safety of children. Under these amendments non-conviction charges will be limited to only the most serious offences, being those of serious sexual, violent and drug offences listed in clause 2 of schedule 3 to the Working with Children Act.
Given the nature of a non-conviction charge, the assessment of this type of information will need to carefully balance the protection of children from harm against an individual’s right to work. Accordingly, as a category C assessment, there is a presumption that a person will receive a working with children check unless the Secretary of the Department of Justice and Regulation is satisfied that they pose an unjustifiable risk to the safety of children, having regard to the risk assessment criteria in the Working with Children Act.
Non-conviction charges do not interact with the expungement of historical homosexual offences as only a finding of guilt or conviction can be expunged. I think that is the key point in that. Should an individual apply for a working with children check who has successfully had a finding of guilt or conviction for a historical homosexual offence expunged, the expunged conviction will not appear in a criminal history provided to the secretary. Further to this, Victoria Police have confirmed that this information will not be disclosed to the secretary for the purposes of working with children check assessments pursuant to clauses 28 and 29 of the bill before us this evening.
There was also a question in relation to data-sharing powers between the departments. The purpose of these amendments is to assist with the implementation and ongoing operation of the new kinship carer requirements by making it explicit that the Department of Justice and Regulation and the Department of Health and Human Services can exchange information in respect of kinship carers. Because kinship care is an arrangement that is private and domestic in character, it represents a unique cohort in contrast to other occupational categories under the Working with Children Act and had previously been excluded from the scheme.
Accordingly, it was identified that specific information-sharing provisions were required to ensure that there was no legislative impediment to the disclosure by departments to each other with respect to the working with children checks held by kinship carers. In practice these provisions will be used to share information between the Department of Justice and Regulation and the Department of Health and Human Services about whether or not kinship carers have a working with children check. As the Department of Health and Human Services may not be listed by the applicant as an employer, it will allow the Department of Justice and Regulation to provide the necessary information to the Department of Health and Human Services as the kinship carer’s employer.
This will enable the Department of Justice and Regulation to notify the Department of Health and Human Services of the status of the kinship carer’s working with children check, such as if it is suspended, revoked or withdrawn or when assessment notices, interim negative notices or negative notices are issued. The Department of Health and Human Services has noted that these information exchange provisions are necessary to ensure that it can continue to effectively manage its out-of-home care placements.
It is also important to note that these provisions do not alter the current arrangements in respect of the exchange of information for the purposes of working with children check assessments. The Secretary of the Department of Justice and Regulation is currently able to request child protection information from the Department of Health and Human Services under section 11(1)(c) and section 21AA(1)(a) of the Working with Children Act to assist with the assessment of a person’s eligibility to hold a working with children check.
I also wanted to cover off on the issue of acknowledging and recognising the important role of kinship carers because they are often in very difficult situations, including even dealing with how the child was placed in kinship care. The bill allows kinship carers to receive voluntary WWC checks which are free of charge. Existing kinship carers will have a further three months from the commencement of the new provisions in which to apply for the check, and kinship carers will routinely have 21 days to apply for a WWC check.
I have almost run out of time. I hope I have covered all the issues that have been raised during the second-reading debate and that we will be able to move this bill through the house in a fairly speedy fashion.
Motion agreed to.
Read second time.
Committed.
