Working with Children Amendment Bill 2016


Debate resumed from 10 November; motion of Ms PULFORD (Minister for Agriculture).

Mr RICH-PHILLIPS (South Eastern Metropolitan) — I am pleased to have this unexpected opportunity to speak on the Working with Children Amendment Bill 2016 this afternoon, a bill that makes some important amendments to the current working with children regime. The history to these amendments goes back to the work that was done at the Parliament of Victoria, in particular the work that was done by my shadow ministerial colleague Ms Georgie Crozier in her role as the chair of the Betrayal of Trust inquiry, which was an initiative of the previous coalition government responding to the widespread concern in the community about the perceived or believed cover-up of sexual abuse in certain institutions, particularly religious institutions.

Under the previous government and with that broad concern in the community Ms Crozier and her committee were commissioned to undertake a review into institutional responses to child abuse, and that committee excelled itself in producing the Betrayal of Trust report, which set out the extent and the scope of the betrayal of trust which had occurred in institutions in Victoria over many decades. In religious institutions and other institutions young Victorians had been subject to sexual abuse, and that sexual abuse had been covered up in a systemic way, in an institutional way and in a way that was to the great shame of those organisations involved and to the great detriment of hundreds, possibly thousands, of children through the decades. It was that work and that leadership shown by Ms Crozier and her committee that led to the establishment by the commonwealth government of the Royal Commission into Institutional Responses to Child Sexual Abuse.

This is something that should be kept in context; it was resisted over a long period of time. The establishment of Ms Crozier's inquiry was resisted over a long period of time, and it was only the leadership that was shown by Ms Crozier and her committee in producing the Betrayal of Trustreport — in raising the veil on what had been a longstanding systemic issue of covering up  child abuse in this state in institutions that had long been respected in the Victorian community — that led to the royal commission and led to the raft of recommendations that have followed from that royal commission. That was a royal commission for which letters patent were issued not only on a commonwealth level but also in parallel in all of the state jurisdictions, and all of the states have committed to working with the commonwealth to adopt many of the recommendations arising from the commission.

I think something that the Parliament of Victoria can be proud of is the role this Parliament played in raising that veil of institutional abuse and in setting the scene that led to that royal commission and the subsequent actions and recommendations that have followed from it. Members of the previous Parliament will recognise the resistance that existed at the time to an inquiry into that type of institutional abuse, and that resistance was substantial. It was only through that work leading to the Betrayal of Trust report and now the royal commission that we have moved to this situation where those problems have started to be addressed.

The bill we are considering this afternoon, the Working with Children Amendment Bill 2016, seeks to make some amendments to the working with children framework which exists in Victoria arising from recommendations of the royal commission. To provide a little bit of context, I note that it was in 2005 that the Parliament first passed the Working With Children Act. It was quite radical at the time to establish a framework which required people who were to be working unsupervised in the proximity of children to have background checks which basically assessed whether they had a criminal record, particularly a criminal record related to sexual offences or child abuse-related offences, to ensure that those people did not have ready access to young people in this state.

It was a platform of legislation, a statutory framework, which was quite radical at the time. It was an approach which had not been seen in Victoria before — to set up a regime through the then Department of Justice which required people to have background checks before they came into unsupervised contact with children — and it was something that met with some resistance because it was a radical departure from the way in which the community had operated.

In Victoria we have and have always had a vibrant volunteer sector, where people volunteer in scout groups, in school communities, in mothers clubs, doing reading at primary school et cetera. Victoria is very proud of its volunteer background and the willingness of the Victorian community to volunteer and make a contribution, often working with young people. To put in place a regime, as was done a decade ago, which required those volunteers to undertake a background check — effectively a police check — to be signed off by the Department of Justice was a radical step. There were concerns certainly at the time that that would lead to volunteers not wishing to continue in a volunteering role or indeed not volunteering in the first instance, because the hurdle — the barriers to entry — to becoming a person working in a school environment or working with a scout group would be onerous.

The decision was made to put in place that legislation in 2005 to require those background checks of people working with and in the proximity of children. Today we see, as a consequence of the royal commission, the intent of this legislation to further strengthen that regime.

One of the interesting things in reflecting on the working with children regime and attempting to understand whether it has been effective or not is that there is reporting on the number of working with children checks that are granted and reporting on the number of working with children checks that are rejected. It is a while since I have looked at the statistics on the working with children checks, but certainly the last ones I looked at suggested only a very small proportion of working with children checks were rejected. The vast majority of applicants were successful in receiving those permits to work in environments with children, which on the face of it could suggest the working with children check regime was not adding value because very few people were being screened out.

Of course that ignores, in considering the statistics in that way, the deterrent effect of having a regime which requires somebody to have a check prior to engaging with young people. And of course we will never know how many people — how many unsuitable people — were deterred from seeking to work in environments with children because they knew that from 2005 they would need to have a working with children check. That is that element of legislation. That success, if you like, of the legislation is something we are never going to be able to quantify by virtue of the fact of it being a deterrent effect, but it is reasonable to assume that there were people who had sought to gain access to children through activities in schools and scout groups and the like who were deterred from doing so because of the need to obtain a working with children check.

Certainly the evidence came through in the Betrayal of Trust report and subsequently the royal commission that there were people who actively engaged as volunteers in community groups, community institutions and the like to be in the proximity of children so that they could then abuse children, so it is fair to assume, given that that evidence emerged through the royal commission and the Betrayal of Trust report, that a number of people with that disposition have been deterred from seeking to be in that environment by virtue of the need of having a working with children check.

What the legislation this afternoon seeks to do to that framework is to implement five of the recommendations of the royal commission, which came out of the Working with Children Checks Report of the royal commission. Clause 4 of the bill seeks to implement recommendation 7 to broaden the definition of 'direct contact' with children. It is the 'direct contact' definition that determines in what circumstance somebody is required to hold a working with children check. Clause 6 implements recommendation 9 to remove the exemptions from the working with children check scheme for supervised contact with children, and this is the current distinction I talked about before between a person who is supervised as opposed to one who has unsupervised contact with children requiring a check. Clause 6 of the bill will seek to remove that exemption.

Clause 13 of the bill gives revocation powers to the Secretary of the Department of Justice and Regulation if a person fails to provide certain information, having successfully obtained a working with children check, and it is important to note that reference in clause 13 that this scheme is administered by the Secretary of the Department of Justice and Regulation. The principal act vests the power in the secretary of that department for the oversight of the scheme.

Clause 18 implements recommendation 33 of the royal commission to confer a new power on the Secretary of the Department of Justice and Regulation to compel the production of relevant information for compliance monitoring.

Part 3 of the bill implements recommendation 12 by requiring kinship carers, who are essentially family members, to make applications for volunteer checks if they are in circumstances where the Department of Health and Human Services has given care to them of a child under the Children, Youth and Families Act 2005. I will come back to that provision shortly.

Part 4 of the bill implements recommendation 17 of the royal commission by expanding the definition of category C applications to include non-conviction findings.

So the coalition will not oppose this legislation. We believe that the work that was done on the Betrayal of Trust report and subsequently through the royal commission is overwhelmingly positive and that the recommendations from both those inquiries are very important in ensuring that we can avoid the type of institutionalised and systemic abuse that has occurred in previously well respected institutions in this state, indeed around Australia, over many decades.

We do, however, have a couple of concerns with the possible implementation of the provisions in the bill today, and the first I will touch on is that one in relation to part 3 of the bill, which is implementing recommendation 12 of the royal commission with respect to kinship carers. This is the provision which will mean that where the Department of Health and Human Services seeks to vest the care of a child in a family member other than the parent of a child, such as an aunt, an uncle or other relative — for whatever reason, a child may be under the care of the department under the provisions of the Children, Youth and Families Act where the department seeks to have a child looked after by a relative — that person will be required to have a working with children check, which does arise from recommendation 12 of the royal commission.

The concern with this provision is its potential to be a disincentive for a family member with an appropriate background to take on the care of a relative's child. That is something we see. We understand the need for the department to be confident when it is vesting the care of a child in a third party, even if they are a relative of the child, but there is the risk that imposing this requirement on a relative by virtue of a volunteer check, by virtue of recommendation 12 of the royal commission, may act as a disincentive — albeit a fairly low disincentive — for extended family to take on that responsibility.

Having heard in this place over an extended period of time of many of the challenges and problems which exist within the child protection sector — children in government care — we know it is inevitable that in the vast majority of cases children who are under the supervision of the department would be best served to be in the care of their extended family, where they are likely to come to less harm than from what seem to be recurring problems in departmental institutionalised care. We would hope that this provision does not become a disincentive to extended family members taking on responsibility for young people.

The other provision where we have some questions is in respect of part 4 of the bill, which seeks to implement recommendation 17 of the royal commission relating to category C applications, which I understand is the lowest level of application, and the consideration of non-conviction findings. This is basically a provision that will require a person who has been subject to criminal charges to have those charges, even in the event of no conviction or no finding of guilt, taken into consideration by the secretary in granting a working with children check. It is not clear how the provision will work — how matters which were dismissed on a technicality or how matters which were of a trifling nature will be dealt with by the secretary. Of course the fact that they exist in an environment where there is no conviction and there is no finding of guilt means that they would need to be considered in a very careful and judicious way by the secretary and their delegates in making decisions around their relevance to the granting of a working with children check.

The coalition does not oppose this legislation. We certainly think the work of the Family and Community Development Committee's Betrayal of Trust inquiry of this Parliament was outstanding; it was groundbreaking and really lifted a veil which had existed for many decades. That inquiry led to the work of the royal commission, which has subsequently led to further exposure of this type of unsavoury conduct in the community.

The recommendations from both inquiries are welcome. This bill seeks to implement a number of those recommendations. We do have some reservations or, if you like, seek some clarification from the minister as to how those two provisions in particular will be implemented in a practical sense by the Secretary of the Department of Justice and Regulation, but on the whole we do not oppose this bill. 
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