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12 March 1991 - Current

 
WORKING WITH CHILDREN AMENDMENT (MINISTERS OF RELIGION AND OTHER MATTERS) BILL 2014
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26 June 2014
COUNCIL Statement of Compatibility O'DONOHUE

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.