Working With Vulnerable People (Background Checking) Amendment Bill 2019

The Canberra Liberals will be supporting this bill today in principle, though I will be raising a number of concerns to be noted by the Assembly.

Most of the amendments in this bill update the Working with Vulnerable People (Background Checking) Act to align with principles found in the ‘Intergovernmental Agreement on Nationally Consistent Worker Screening for the National Disability Insurance Scheme’, produced jointly by the Commonwealth Government and the government of each state and territory. Because each jurisdiction has its own background checking scheme, the Intergovernmental Agreement provides general principles that must be translated into specific legislative changes in each state or territory. This bill therefore includes amendments intended to make ACT law comply with agreed-upon national harmonisation around the screening of NDIS workers.

In addition, this bill also includes a handful of amendments that are not NDIS related. The explanatory statement notes that we should expect two more amendment bills designed to implement changes arising from the review of the territory’s Working with Vulnerable People Scheme undertaken during 2016 as well as the report of the Royal Commission into Institutional Responses to Child Sexual Abuse. When I asked why some of these amendments had been brought forward into this otherwise NDIS-focussed bill, I was told that the intention was to include some of the easier changes but also to try to be prospective regarding what are understood to be future consequential amendments.

The Canberra Liberals, of course, support efforts to protect vulnerable people, including those enrolled in the National Disability Insurance Scheme. We therefore support the Intergovernmental Agreement’s objective of reducing the potential for NDIS ‘providers to employ or engage individuals who pose an unacceptable risk of harm to people with a disability’. We also support the eight principles listed in the Agreement. For these reasons, we will be supporting this bill as drafted. At the same time, I wish to note the following concerns, in order:

First, clause 21 inserts a new requirement that all applications for registration must include ‘a written statement … about whether an allegation has been made … in relation to a regulated activity … and if so, the details of the allegation’. This is in addition to already requiring a written statement regarding whether the applicant has been convicted or found guilty of a relevant offence. Section 23 of the act then defines exactly what a relevant offence is. The problem is that ‘allegation’ is never defined in the same way. It is not, for example, specified as an allegation of having committed a relevant offence.

When I sought clarity from the minister’s office on this point, I was advised that the definition of allegation in the proposed amendment is just its ordinary dictionary meaning – in other words, ‘a statement made, without giving proof, that someone has done something wrong or illegal’. This is an awfully broad definition, Madam Speaker. Without further clarification, some applicants might understand this new requirement to include providing a list of every occasion when someone has suggested they were doing something wrong in the course of their duties, regardless of whether it has any relevance or not. I wish to go on record suggesting that this point can and probably should be made clearer.

Second, section 37 of the act currently states that a negative notice must include ‘the reasons for the negative risk assessment’ and what steps the applicant can take to seek a reconsideration of that decisions. Clause 37 in this bill, however, alters this requirement such that ‘the commissioner must not tell the person the reasons for the negative risk assessment if the information must not be given to the person under this Act or any other law in force in the ACT’. I fully understand the reasoning behind this inclusion. My concern is about what exactly an applicant in such a situation will be told.

When I raised this concern with the minister’s office, I was informed that the precise wording of such a notification has not been determined yet but will be before the act commences in July next year. I wish to suggest that great care be taken in preparing the wording for this correspondence. Merely telling people that they have failed a risk assessment without providing any reason or explanation is going to raise questions and, quite possibly, generate anger. If such a person were to contact my office, I would be compelled to explain the sole reason I know of for why explanations cannot be included in a negative notification: that an active investigation is underway and that disclosing reasons for a negative notification could compromise that investigation. That’s the sole reason given in the explanatory statement, and if that’s the reason, then I’m not sure it wouldn’t be better to figure out a way of letting a person know that, generally, than having a very angry constituent learn it from his or her local member.

I here note that in the updated explanatory statement, the minister did address the scrutiny committee’s concerns about such a person’s right to review by pointing out that application to the tribunal will still be an option and that the tribunal can request the relevant information. But this does not change the fact that a clear answer why reasons have not been provided directly to the applicant needs to be included in any notice where that is the case in order to avoid misunderstandings or complaints. Madam Speaker, I ask the Assembly to note this concern and recommendation.

Third, clause 43 requires an applicant, upon making a request for reconsideration of a conditional registration, to provide to the commissioner any new or corrected information. This is a wise amendment as it seeks to avoid an administrative loop wherein an applicant can endlessly apply for reconsideration without any additional information. Clause 44, however, removes the obligation of the commissioner to consider this new information. The updated explanatory statement states that this ‘allows the discretion of the Commissioner to determine the relevance of the information and whether or not to consider it’. This clarification is useful, but, at minimum, it would have been useful to include in the bill itself that any new information must be assessed for relevance. I again ask the Assembly to note this concern.

Fourth, clause 52 introduces the concept of interim conditional registration and lays out the regulations that govern it. The explanatory statement for this clause notes that ‘It is not the intention for an interim condition to be applied for activities involving working with children’. This intention, however, is not present in the proposed legislation. When I queried the minister’s office why, I was told that the risk assessment process itself may make this clear, but I have not received any clarification that that is the case. Again, I wish that this concern be noted.

Finally, Madam Speaker, clause 60 of the bill greatly expands the list of designated entities that the commissioner may give protected information to, roughly doubling the number. I understand that this information sharing is always to be ‘on reasonable grounds that the information is relevant to preventing harm or risk to harm to a vulnerable person or class of vulnerable people’, and I do not wish to argue against the importance of sharing relevant information. When I asked what guidelines were used in determining which new designated entities should be included, however, I was told that some of it arose from national harmonisation, but the Intergovernmental Agreement itself does not provide a recommended list of designated entities that should be receiving protected information. When this was pointed out, I was told that the guidelines used are not ‘publicly available’.

I note here that the scrutiny committee also raised concerns about the right to privacy and reputation in relation to this clause and asked that the minister consider revising the explanatory statement to provide justification for these changes using the framework set out in section 28 of the Human Rights Act. No such justification appears in the updated explanatory statement, however, and I ask the Assembly to here note my concern with this fact. As I stated above, no one wants there to be obstacles to the sharing of information necessary for the protection of vulnerable people, but this proposed amendment raises concerns that have not been satisfactorily addressed. The Canberra Liberals will certainly keep our eyes on how this section of the act operates once updated, and if necessary, we will return to this place with any resultant issues.

Now, Madam Speaker, as I said at the beginning, the Canberra Liberals will be supporting this bill in principle despite these five concerns – or five unanswered questions. We want the ACT to be able to perform its agreed-upon role when it comes to the background screening of NDIS workers. We want our Working with Vulnerable People Scheme to function at its very best. I do express my hope that the issues I raised today might be resolved going forward in the best possible way, and I look forward to hopefully having fewer unanswered questions with the two more amendment bills we have been told to expect in relation to the Working with Vulnerable People Act.

Thank you.

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