Hansard debates

WORKING WITH CHILDREN AMENDMENT (MINISTERS OF RELIGION
AND OTHER MATTERS) BILL 2014 
Statement of compatibility
Hon.  E.  J.  O'DONOHUE  (Minister  for  Liquor  and Gaming  Regulation)  tabled
following   statement  in  accordance  with  Charter   of   Human   Rights   and
Responsibilities Act 2006:
  In   accordance  with  section  28   of  the  Charter   of  Human  Rights  and
  Responsibilities  Act  2006,  (charter  act),  I  make   this   statement   of
  compatibility  with  respect to the Working with Children Amendment (Ministers
  of Religion and Other Matters) Bill 2014.

  In my opinion, the Working with Children Amendment (Ministers of  Religion and
  Other  Matters) Bill  2014,  as introduced  to  the  Legislative  Council,  is
  compatible  with human rights as set out in the charter act. I base my opinion
  on the reasons outlined in this statement.
  Overview
  The Working  with Children Amendment (Ministers of Religion and Other Matters)
  Bill 2014 (the bill) makes a number of amendments to the Working with Children
  Act 2005 (the act), including:
    introducing an overarching principle that ensures the protection of children
    is to be  the paramount consideration when  the secretary or  the  Victorian
    Civil  and  Administrative Tribunal  (VCAT)  make a  decision  or perform an
    action under the act;

    requiring 'ministers of religion' who have contact with children to obtain a
    working-with-children check;
    changing  and  expanding   the  categories  of  offences,  including  making
    attempted murder  and  attempted rape category  A offences and  relocating a
    number of offences  in other categories, thereby affecting the test that the
    secretary applies to people  to determine whether  they  will be granted  an
    assessment notice on application or reassessment;
    adding  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  2006  to  the services, bodies and
    activities that comprise child-related work under the act;

    providing the secretary with a power to make inquiries or obtain information
    about an individual following the issuing of a negative notice and an appeal
    to VCAT;
    allowing the secretary to notify an organisation when an individual requests
    the secretary to remove this organisation from their record; and
    replacing the secretary's power to suspend an assessment notice with a power
    to revoke an assessment notice in situations where a request to an applicant
    for further information has been ignored.
  Charter act issues
  A number of charter act rights are relevant to the bill.

  However, it is my view that the provisions are compatible with the charter act
  for the reasons set out below.
  Privacy and reputation
  The right not  to have privacy unlawfully or arbitrarily interfered with under
  section 13(a) of  the  charter  act  and  the  right  not  to  have reputation
  unlawfully  attacked  under  section  13(b) is  potentially  relevant  to  the
  following provisions of the bill:

    clause 9(9) inserts  section  9(3)(fa)  into  the act, adding 'accommodation
    services'  specifically  provided  for  students  in  connection  with   the
    operation of the student  exchange program under part  4.5A of the Education
    and  Training Reform Act 2006 to the services, bodies, places and activities
    that  comprise child-related  work,  thereby expanding  the circumstances in
    which a person may need to apply  for and  obtain an assessment notice under
    the act and therefore to provide personal information to the government;

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    clauses 6(4), 9(12) and 9(13)  amend the act to provide that work engaged in
    as a 'minister of religion' is included in the definition of  'child-related
    work'  under  the  WWC  act  unless  any  direct  contact  with  children is
    incidental  to the  work, and  if the  minister is an appointed leader  of a
    local congregation, that the congregation does  not  contain  any  children.
    This expands  the circumstances in which a person may need to apply for  and
    obtain  an assessment notice  under the act  and  therefore provide personal
    information to the government;
    clauses  11  to  13  and  43  change  and expand the categories of offences,
    including making attempted murder and attempted rape category A offences and
    relocating  a number of  offences in other categories, thereby expanding the
    circumstances in  which a person  must provide personal  information  to the
    government and  in  which  they  may be refused an assessment notice or have
    their assessment notice revoked following a reassessment;

    clause 20 inserts section 20A(3) into the  act, providing the secretary with
    the authority to notify an organisation that an applicant for, or holder of,
    an assessment notice has  notified the secretary that they no longer  engage
    in child-related work with that organisation;
    clause  26  amends section 21B  of  the act,  which  currently  requires the
    secretary to suspend a person's assessment notice upon being made aware that
    the  person has been charged with  or been  convicted or  found guilty  of a
    category 1 or  category 2 offence.  Despite other provisions  expanding  the
    offences under these categories, the bill preserves the current situation by
    specifying  that the relevant offences for automatic  suspension  are  those
    contained  in  new schedule  3,  which  is comprised  of  offences that  are
    currently specified as category 1 and category 2 offences.

    The bill also  clarifies that becoming subject  to reporting obligations  or
    supervision  or  detention  orders  under  sex  offender  legislation  is  a
    circumstance requiring automatic suspension;
    clause 41  inserts  section 42A  into  the  act, giving  the  secretary  the
    authority  to  request information in relation to individuals whose  matters
    are going to be heard by VCAT.
  In my  opinion, any interference  with a person's privacy  or reputation which
  may arise from  these provisions will  be neither unlawful nor  arbitrary. The
  ability of the secretary to require, disclose  and request information in  the
  above circumstances will be specifically authorised by the act.

  This  is necessary to  ensure  that government  agencies  and VCAT can  assess
  whether,  and  people who engage individuals, including ministers of religion,
  in child-related work  can  be assured  that,  these individuals who  wish  to
  engage  in child-related work have  been subject to  a  criminal history check
  which does not suggest  they  pose  an  unjustifiable  risk  to  the safety of
  children. Consequently, in my view the bill does not result in an arbitrary or
  unlawful interference with the right to privacy.
  Presumption of innocence; right not to be tried or punished more than once and
  right  not to  have a penalty imposed for a criminal offence, which is greater
  than that which applied at the time of commission of the offence
  The bill  amends the application  categories  under the act  and increases the
  range of offences under the act:

    clauses 11  and 43  add to new category A the offences of attempted  murder,
    rape and attempted rape as well as pending charges  for all  offences in the
    new category A. This means that only  VCAT can grant an assessment notice to
    people  who  have  been convicted  of  or  have pending  charges  for  these
    offences;
    clauses 12 and 43 add a number of offences to  the new category B, including
    'armed  robbery',  'upskirting' offences,  'child  stealing',  'leave  child
    unattended',  'fail  to protect child  from harm' and  offences  relating to
    'installing, using or maintaining optical surveillance devices' as  well  as
    pending  charges for all offences in category B. This means  that  the  test
    that the secretary applies to these people to determine whether they will be
    granted an  assessment notice on  application or reassessment  will  be more
    restrictive than is currently the case.

  These provisions do not limit the rights set out in section 26  of the charter
  act (right  not to be tried or  punished more than once)  or section 27 (right
  not to have a penalty imposed for a criminal  offence, which  is greater  than
  that which applied at the time of  commission of the offence), because they do
  not impose  punishment  or  penalties on  offenders  for a  criminal  offence.
  Preventing  a  person from engaging  in child-related work  cannot properly be
  called  a  punishment  or  penalty  for  a criminal offence as the purpose and
  effect of the working-with-children provisions  is not to punish persons for a
  criminal offence but to protect children.
  Adding pending charges to the list of offences  in category A and more pending
  charges  to  category  B  will  mean that a person  charged  with  an  offence
  specified in those categories may not  be able to engage in child-related work
  in circumstances where they have not had  their  guilt  or  innocence  of  the
  charge determined by the relevant court.

  This  does  not  limit  the  right  set  out  in  section  25(1) because these
  provisions do  not alter  the fact  that the person is innocent of any offence
  charged until judged guilty by a court.
  Protection of families and children
  The introduction  of an overarching  principle that ensures  the protection of
  children is to be the paramount consideration when making a decision or acting
  pursuant to the act (clause  5)  and  the  introduction  of  a requirement for
  ministers of religion engaged in child-related work as defined by the  act  to
  apply  for  and  obtain an  assessment  notice  (clauses  9(12)  and  (13)) is
  consistent with and promotes the rights set out in section  17 of  the charter
  act.
  Edward O'Donohue, MP

 Minister for Liquor and Gaming Regulation
 Minister for Corrections
 Minister for Crime Prevention

WORKING WITH CHILDREN AMENDMENT (MINISTERS OF RELIGION
AND OTHER MATTERS) BILL 2014 
Second reading
Ordered that  second-reading  speech be incorporated  into Hansard on  motion of
Hon. E. J. O'DONOHUE (Minister for Liquor and Gaming Regulation).

  Hon. E. J. O'DONOHUE (Minister for Liquor and Gaming Regulation) -- I move:
  That the bill be now read a second time.
Incorporated speech as follows:
  Children should be safe from harm.

  The sexual and violent  abuse of innocent and vulnerable victims can inflict a
  lifetime of pain  and suffering. Protecting  children  from the risk  of  harm
  requires constant vigilance. Parents and family, the  government  and employer
  and volunteer organisations all have important roles to play.
  Working-with-children checks are an important element of this protection.  The
  checks seek to provide an independent assurance that persons who work with our
  children do not have criminal  convictions or face criminal charges that would
  create an unacceptable risk to the children entrusted to their care.
  The Working with Children Amendment (Ministers of Religion and Other  Matters)
  Bill strengthens the existing  mechanisms under the  Working with Children Act
  2005 (the act) to ensure  that the  safety and  wellbeing of  children is  and
  remains paramount.

  Purposes of the act amendments
  The main purposes of these amendments are to:
    set  out  in  legislation  that  the  protection of children is  to  be  the
    paramount consideration when administering the act;
    make it clear that a working-with-children check provides a  'minimum' check
    rather  than  a 'suitability'  check,  so  as to  avoid  any suggestion that
    requiring   working-with-children  checks   means  an   employer  or   other
    organisation  has  no  further  responsibility  to  assess  or  monitor  the
    suitability of their staff or volunteers;
    clarify the definition of 'child-related work';

    require all ministers of religion who have contact with children to obtain a
    working-with-children check;
    revise the working-with-children check assessment procedures; and
    make a range of other improvements to the operation of the act.
  Protection of children is paramount
  The High Court has made clear that where legislation is intended to prioritise
  one  right above another, this must be explicit in the legislation.  The  bill
  introduces an overarching principle that  specifies  that  the  protection  of
  children  is to be the paramount consideration when a decision-maker under the
  act (namely, the secretary or VCAT) is assessing an application or reassessing
  an individual.

  The introduction of this principle  will put beyond doubt  that the protection
  of children  is a more important  consideration than any  other consideration,
  such as the individual's right to work.
  This  will bring  the  act  into line  with  other  legislation that  protects
  children, such as the Children, Youth and Families Act  2005,  which states at
  section 10 that 'for the  purposes of this act the best interests of the child
  must always be paramount'.
  A 'minimum' check
  The bill makes clear that a working-with-children check is in fact a 'minimum'
  check that screens  individuals in relation to their criminal history, so that
  persons  convicted of or  charged  with certain  offences  are not granted  an
  assessment notice allowing them to work with children.

  The bill makes clear the working-with-children check is a minimum requirement,
  it does  not replace appropriate assessment and monitoring by  the employer or
  organisation of an  individual's 'suitability' in other respects to work  with
  children.
  Clarify the definition of 'child-related work'
  A  working-with-children   check  is  only  required  when  an  individual  is
  undertaking  'child-related  work'   as  defined  in  the  act.  This  current
  definition,  however, is  unnecessarily  lengthy  and  complex,  and  requires
  simplification.
  The bill amends the act to:

    split the term 'child-related work' and define 'child-related' and 'work' as
    two distinct concepts;
    remove  redundant  provisions that were  included  in the act  to assist the
    introduction and implementation of the scheme;
    simplify  the  concept  of  'direct  contact',  refine   the  definition  of
    'supervision' and remove the term 'regular'.
  Ministers of religion
  In  November 2013, the Family and Community Development Committee released the
  report of the parliamentary inquiry into the handling of child sexual abuse by
  religious and  other  non-government  organisations  (the  inquiry),  entitled
  Betrayal of Trust.

  The  inquiry,  amongst other  things,  recommended  the  Victorian  government
  clarify the requirements for  religious  organisations  to ensure ministers of
  religion  have a current working-with-children check in view  of the broad and
  unspecified nature of their work, work which involves contact with children in
  their communities.
  The government accepts that ministers of religion occupy a unique place within
  the  community  that  places  them  in  a  role  of  trust  and authority  and
  accordingly,  is  amending  the act  to  provide for  a  specific  requirement
  relating to ministers of religion.
  The  amendments will apply to persons who  are  ordained  or  appointed  as  a
  recognised religious leader  in an organised  religious institution or who are
  the appointed leader of,  and have general  authority over, a local  religious
  congregation, such as a church, mosque, synagogue or temple.

  The bill requires all ministers of religion to apply for and obtain a 

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 working-with-children check  unless  any   direct  contact  with   children  is
incidental and, if the minister  is an appointed leader of a local congregation,
that congregation does not contain any children.
  Revise the category application process
  Currently under the act, an individual  found  to have a criminal history that
  may present a  risk to  the safety  of children  is assessed  according to the
  severity of this  criminal history. This assessment is categorised as either a
  category 1, 2, 3, or as an exceptional circumstances application.
  The  bill  amends  and  simplifies   the   current  category  and  exceptional
  circumstances  provisions  by replacing  them  with  a  revised three-category
  classification system.

  The key change to these categories is that pending charges for serious  sexual
  or  violent  crimes will also be included in the assessments for an assessment
  notice.
  The revised system will consist of three categories, A, B and C. Each category
  will be assessed  against  the  current  'unjustifiable  risk' and 'reasonable
  person' tests.
  Category A will  consist of applicants  who  have committed the  most  serious
  offences.  This  will  include   applicants   who  are  subject  to  reporting
  obligations under the  various sex offenders  legislation, and adults who have
  on their record sex offences against children or child pornography offences.

  This  category will also  include  applicants with  pending  charges for these
  offences and applicants  who have been convicted  of the offences  of  murder,
  attempted murder, rape and  attempted rape and those  who have pending charges
  for  these  offences.  The Secretary  to  the  Department of  Justice  will be
  required to refuse applicants a working-with-children check.
  Category B will consist of applicants who have committed serious sexual,  drug
  and  violent offences not  coming within category  A. This includes applicants
  who have committed serious offences including  armed  robbery,  upskirting and
  child stealing as well as pending charges for an offence in this category. The
  test   used   in   category   B   requires   the   secretary   to   refuse   a
  working-with-children check unless satisfied that giving it would not  pose an
  unjustifiable risk to the safety of children.

  The bill adds a final category, C, which consists of applicants with  relevant
  disciplinary findings as well as charges, convictions or findings of guilt for
  any other offences   that the secretary  has  notified to Victoria  Police  as
  offences relevant to the working-with-children check.
  Jurisdiction of VCAT
  A  person who has been  given  a  negative  notice  on a category A,  B  or  C
  application or reassessment  may apply to VCAT for the giving of an assessment
  notice.  In making  an order for the giving of an assessment notice, VCAT must
  have regard to the current 'unjustifiable risk' and 'reasonable person' tests.
  If VCAT is satisfied that giving  an  assessment  notice  would  not  pose  an
  unjustifiable  risk  to the safety of children, VCAT may, by order, direct the
  secretary to give  the assessment  notice if  it is satisfied that, in all the
  circumstances, it is in the public interest to give the notice.

  General improvements to the operation of the act
  The bill also makes a number  of  amendments  aimed at generally improving the
  operation  of  the act, including grouping  all  the  reassessment  provisions
  together to enable an easier reading of the legislation.
  The bill removes the  three-month grace period following  the expiration of an
  individual's working-with-children check. This will prevent an individual from
  engaging in 'child-related work' during  this  three-month  period,  given the
  risk that during this time they  may commit  an offence  that the secretary is
  unable  to  act  upon.  The  bill,  however,  will  retain the ability for  an
  individual  to renew  their working-with-children  check  during this  period,
  thereby avoiding the more complex new application process.

  The bill  provides  that  an  applicant  or  cardholder  who has been issued a
  negative notice cannot avail themselves of any exemptions set  out in the act.
  Provisions under part 3 of the act exempt people such as parents, teachers and
  police officers from obtaining a working-with-children check.  The  bill makes
  it clear  that if  an exempt  person  chooses  to  make an  application for  a
  working-with-children  check  and that application is refused and  the  person
  receives  a  negative  notice  the person cannot then seek to rely on  his/her
  exempt status.
  The  working-with-children check has strong public acceptance and  support  by
  the Victorian community.  The amendments made  by this bill further strengthen
  and improve the operation of the scheme to enhance the  protection of children
  from  physical  and  sexual  harm,  in  line  with  the  government's  ongoing
  commitment to protect children, support their  families  and  build  stronger,
  safer communities.

  I commend the bill to the house.
Debate adjourned on motion of Mr TEE (Eastern Metropolitan).
Debate adjourned until later this day.