Mr DAVID SHOEBRIDGE: On behalf of the Greens I indicate that we support the Child Protection (Working With Children) and Other Child Protection Legislation Amendment Bill 2016. This bill does a number of things. The objectives of the bill include:
(a)to amend the Child Protection (Working with Children) Act 2012 (the Working with Children Act) to make provision for the exchange of information relating to working with children clearance checks with relevant bodies in other jurisdictions and other miscellaneous matters relating to clearances and the disclosure and notification of certain information, and
(b)to amend the Children and Young Persons (Care and Protection) Act 1998 (the Care Act) to make provision for enforceable undertakings, entry without warrant into premises, the issue of penalty notices by certain employees of the Children’s Guardian and the production of certain information relating to the employment of children, and
(c)to amend the Teaching Service Act 1980 (the Teaching Act) and the Education (School Administrative and Support Staff) Act 1987 (the Education Act) to provide that a person whose clearance has been cancelled pending determination of proceedings against the person for an offence, may be suspended or placed on alternative duties, rather than being immediately dismissed.
The first part of this bill, which provides for the exchange of information between other jurisdictions—other State jurisdictions and the Commonwealth—covers one of the key recommendations from the Child Abuse Royal Commission, when it was looking at the Working With Children checks [WWCCs]. In the report that it delivered on Working With Children checks the royal commission noted that there were inconsistencies. Some of that inconsistency is explicable by each of the State jurisdictions trying to work out the best model. There is a bit of creative tension between the different jurisdictions, but the royal commission also noted that there were some difficulties and some real failings in terms of transmitting information between the different jurisdictions. In the executive summary of the royal commission the commissioners said:
We have determined that implementing a national approach to WWCCs is overdue. For too long, governments have favoured maintaining their own systems over working together to achieve a more nationally consistent approach. We have therefore recommended a national model for WWCCs, by introducing consistent standards and establishing a centralised WWCC database to facilitate cross-border information sharing.
I continue the quote from the executive summary:
Implementing these recommendations will improve the protection afforded to children by:
creating a standardised approach so that key aspects of WWCC schemes are dealt with in the same way (for example, who needs a check and how records are assessed)—
This is a work in progress. Different State jurisdictions are meeting, and hopefully will continue to meet, to try to find a standardised approach. We cannot have a lowest common denominator approach—
allowing WWCCs to be portable across jurisdictions
assisting organisations and people working across borders to comply with the schemes by reducing their complexity and duplication
eliminating the opportunity for forum shopping, whereby potential perpetrators can work in locations with less rigorous checking or where access to adverse records is limited
improving information sharing so that there is continuous monitoring of WWCC cardholders’ national criminal history records and visibility of WWCC decisions across all jurisdictions
The Greens support each of those recommendations. Indeed, we hope this is just the first part in implementing that kind of national scheme, which will go a long way towards protecting children. The provisions of the bill that amend the Children and Young Persons (Care and Protection) Act to provide for the enforcement of undertakings are found in proposed sections 226A and 226B. They provide that the Children’s Guardian may accept a written undertaking given by a person in connection with a matter in relation to which the Children’s Guardian has a function under the Act. In other words, they allow the Children’s Guardian to accept an undertaking that certain conduct will be engaged in, that certain information will be provided, or there could be a restorative justice activity.
If that undertaking is breached, the Children’s Guardian can apply to the Supreme Court to either enforce the undertaking in its terms or to direct the person who breached the undertaking to make a payment to the State equivalent to the financial benefit the person received from breaching the undertaking, or an order directing the person to compensate another person who suffered loss or damage as a result of the breach of the undertaking. This sensible set of enforcement procedures gives the Office of the Children’s Guardian some teeth when demanding undertakings in the course of its work. The Greens support this. However, amendments to the Teaching Service Act and some consequential amendments to the Child Protection (Working with Children) and Other Child Protection Act have gained some controversy. In proposed section 93R of the Teaching Service Act a “charged person”, which is a new class of person, is defined as:
charged person means a person whose working with children check clearance is cancelled pending determination of proceedings against the person for an offence specified in Schedule 2 to the Child Protection (Working with Children) Act 2012.
Two definitions are provided in section 93R. The first definition is:
a person whose working with children check clearance is cancelled under section 23 of the Child Protection (Working with Children) Act 2012, other than a charged person
The second definition is:
a charged person on the person being convicted …
Under section 93T of the Act an unauthorised person is automatically terminated. This new category of “charged person” has been proposed because there will now be a power to suspend the charged person under the Teaching Service Act rather than automatically terminating that person under 93T. Why is that an important distinction? Because once someone is charged, they have not as yet been found guilty. It is inappropriate to have someone automatically terminated on the basis of being charged. On a reading of schedule 2, these are very serious offences—starting with the manslaughter of a child. So if someone has been charged with one of those offences, it is entirely appropriate that they be suspended.
In the briefings I have had with the Government, which I understand have been made broadly available, it is very clear that the current policy is that when an officer or temporary employee for the purposes of the Teaching Service Act is charged with a schedule 2 offence it is automatic policy now that they will be suspended.
Of course suspension rather than termination is the correct response until the charge has been determined. Quite rightly, the bill draws that distinction. But it was infelicity in the initial drafting that had the definition of an unauthorised person and the automatic termination provisions applying to someone who had been charged but not yet found guilty. That is the way I read it. I think it was a gap in the original drafting. This legislation is an attempt to put the bill in the position in which it should have been in the first place.
The Opposition has some amendments to put in place a very clear statutory requirement that the secretary must ensure that a charged person who has not been suspended does not carry out duties at a school and is not present at a school at any time when children are at the school. The shadow Minister has sought to create a political issue when in practice none exists. All parties in this Parliament agree that when someone has been charged with a schedule 2 offence, they should be suspended from teaching, which is the state of play in New South Wales. If a person is charged with the schedule 2 offence, that person is suspended. The Government’s position is that it is sufficient that they are suspended under the policy, but the Opposition wants a statutory provision that requires the suspension and that the person who has been suspended not carry out duties at a school. Again I note for the record that the briefing The Greens received from the Government indicated that it is a very clear policy. If someone is charged with a schedule 2 offence, they cannot carry out duties at a school.
I think a real difficulty with the Opposition’s amendments is that they include not only that a person cannot carry out duties at a school but also that that person cannot be present at a school when children are at the school. People have lives outside of their employment. On a plain reading of that amendment, it would prohibit somebody from taking their own child to school. I am pretty sure that that would not be what the Opposition intended. I am pretty sure that the Opposition intended the restriction to be applied to their employment-related duties. Unfortunately, the drafting by the Opposition is so broad that it would require the secretary to put in place measures to prevent a teacher from even bringing their own children to a school and from being present when they bring their own children to school as well as when they are attending a child-teacher interview. The Greens at this stage are considering amendments to delete the words stated in parentheses in the Opposition’s amendment. I will endeavour to find common ground, but of course I will leave discussion on that point to the Committee stage.
This bill is a genuine and positive step forward. It is the first step towards implementing recommendations from the royal commission to try to get different jurisdictions talking and to get an exchange of information on working with children checks. I commend the Minister and the department for the work involved in bringing forward this legislation. It is a pity that there has been a great deal of rancour over form rather than the reality of child protection when it comes to the amendments of the Teaching Service Act. I hope that consensus will be reached so that we can legislate the policy in terms that will not be harmful.
The Hon. ERNEST WONG: I am pleased to participate in debate on the Child Protection (Working with Children) and Other Child Protection Legislation Amendment Bill 2016. As my colleagues have noted, Labor will not oppose this bill but does propose to move some common sense amendments. Indeed, the Labor Opposition is pleased that the Government is finally moving to close a potential loophole in our child protection system. We all know the Government’s position has not been reached without some significant pressure being applied by the Opposition and the New South Wales media. But even if the Minister Hazzard is late to the party, at least he finally has arrived.
There is no doubt that all members of this Parliament are deeply concerned with the health and safety of our children, but it was Labor that established the important protections—such as the creation of the Office of the Children’s Guardian in 1998 by the Carr Government—that are sought to be strengthened today.
That is a very proud achievement, and one that we have continued to build on both in government and in opposition. Indeed, the last significant changes to this important protection regime occurred last year and followed a concerted campaign by Labor to highlight examples of clearances granted on appeal to individuals who had committed serious crimes against children. I am pleased to say that those changes have ensured that people convicted and imprisoned for murder, indecent assault, sexual assault, pornography or incest where a child is the victim will never be able to appeal or have overturned a ban on their working with children.
I acknowledge that this is an unusual step in the normal course of a justice system. The usual view is that the punishment of crimes should allow for the prospect of rehabilitation. The usual view is that once someone has served their time their opportunities to participate in society should not be limited. So restrictions such as the ones we debate today are an exception. I acknowledge that—we all acknowledge that—and it is, I believe, a most justifiable exception given the circumstances at play. These are extraordinary provisions because our children deserve extraordinary protection; they are entitled to anticipate that their school and care environments are the safest and most trusted spaces in their young lives, and nothing should compromise that. With this in mind, we welcome the Government’s decision to further review, tighten and strengthen New South Wales’ working with children regime.
While most of the matters outlined by Minister Hazzard in his speech in the other place are fairly straightforward and administrative, Labor has proposed some common-sense amendments, which my colleague in the other place Ms Tania Mihailuk outlined. These amendments go to striking the correct balance between protecting the rights of children and protecting the rights of an accused person when an allegation is made that would affect their ability to work with children under this legislation. In its current form, the bill provides for a charged person to be suspended or to be given other non child related work until a decision is made. I understand, of course, that a person who is charged may end up not being convicted, and there are examples of charges having been withdrawn by the police. If the person has already been dismissed they will be unable to continue in their previous employment. Therefore, while it may be more reasonable for the charged person to be given alternative duties rather than being dismissed or suspended, we must ensure that they are not put in a position where they could pose a risk to the ongoing safety of schoolchildren.
It should therefore be clear that if a member of staff under either the Teaching Service Act or the education Act were to be charged, they should not be allowed to perform any duties on a school site. Labor has proposed an amendment to reflect this common-sense approach. A charged teacher could continue working from home on administrative matters for the school or could be transferred to the department for a time. I trust that those opposite will support this simple, common-sense amendment to ensure that the bill will have its full practical, protective effect in the difficult scenario where a teacher or other carer is subject to a charge that is pending a full hearing. Beyond this, as I outlined, Labor will support the bill. The working with children system has provided an excellent protection framework for our children in their education environments for some 18 years now. But it is a framework that we must constantly review and renew to ensure that it is as strong as it can be. I thank members for their attention.
The Hon . PAUL GREEN: On behalf of the Christian Democratic Party I make a contribution to debate on the Child Protection (Working with Children) and Other Child Protection Legislation Amendment Bill 2016. This legislation is part of our core business and is certainly a passion of mine. We must ensure that we do everything we can to protect our children and to give them the very best opportunities to live their dreams and achieve their goals in life. The main object of the bill is to make provision for the exchange of information relating to working with children clearance checks in other jurisdictions. The bill also legislates for enforceable undertakings, entry without warrants into premises, the issuing of penalty notices by the Children’s Guardian and the production of information relating to the employment of children. Finally, the bill aims to allow a person to be suspended or placed on alternative duties instead of being dismissed pending the determination of proceedings.
The Working with Children Check involving pre-employment screening for child-related work commenced in Australia in 2000, when the New South Wales Government introduced its Working with Children Check scheme. Since then, every jurisdiction has established some form of Working with Children Check scheme. The Office of the Children’s Guardian defines a Working with Children Check as:
A requirement for people who work or volunteer in child-related work. It involves a national criminal history check and a review of findings of workplace misconduct.
The result of a Working With Children Check is either clearance to work with children for five years, or a bar against working with children. The applicants are subject to ongoing monitoring and relevant new records may lead to clearance being revoked.
The Working With Children Check is fully portable so it can be used for any paid or unpaid child-related work in NSW for as long as the worker remains cleared.
The Royal Commission into Institutional Responses to Child Sexual Abuse examined what makes an organisation child safe. The Working with Children Check is one tool that helps to ensure the right people are selected to work with our children. The final recommendation of the royal commission’s report aims to strengthen the protection that our children receive through the Working with Children Check. The royal commission found:
Each state and territory has its own scheme, and each of the eight schemes operates independently of the others. They are inconsistent and complex, and there is unnecessary duplication across the schemes. There is no integration of the schemes, and there is inadequate information sharing and monitoring of WWCC cardholders. These problems create a number of weaknesses:
Each scheme defines who needs a check differently, such that you might require a WWCC in one jurisdiction but not in another despite engaging in the same type of work.
Aside from criminal history, there are no mechanisms to share information between jurisdictions for the purposes of assessing WWCC applications.
People are able to ‘forum shop’, whereby a person with adverse records in one jurisdiction may be able to obtain clearance in another jurisdiction where the adverse records are not available.
Screening agencies do not have the capacity to access WWCC decisions or the status of WWCC cardholders from other jurisdictions.
Once a person holds a WWCC, the continuous monitoring does not include monitoring of national criminal history records.
WWCCs are not portable across jurisdictional borders.
People and organisations working across jurisdictional borders find it challenging to comply with the varied and complex schemes.
Child protection is paramount and, as outlined, there are obvious opportunities to strengthen this regime to contribute better to making organisations child safe. The bill aims to address those obvious issues by ensuring that the exchange of information relating to the Working with Children Check with corresponding bodies in other jurisdictions. This will assist in keeping our children safe from people who may move to other jurisdictions as a mode of escape
The second part of the amendments relates to the Children and Young Persons (Care and Protection) Act and is aimed at strengthening the enforcement options available to the Children’s Guardian for the protection of children. It relates to the employment of children. It allows the Office of the Children’s Guardian permission to enter and inspect premises if there is reasonable suspicion that a child is employed contrary to provisions regarding children’s employment. It will also authorise Office of the Children’s Guardian’s employees to issue penalty notices.
The final amendments relate to the Teaching Services Act 1980 and the Education (School Administrative and Support Staff) Act 1987. These changes will allow a person whose clearance has been cancelled because of a pending charge to be suspended and placed on alternative duties rather than being dismissed immediately. The Christian Democratic Party did have hesitations regarding this amendment. However, we have been assured by the Government that the person whose clearance has been cancelled pending charge will either be suspended or placed on alternative duties with no contact with any children.
We have been advised that the Executive Director of Employment Performance and Conduct in the Department of Education will make the decision as to whether a person whose clearance has been cancelled will either be suspended or placed on alternative duties pending charge. The Opposition’s amendment to ensure charged persons must not be on school grounds when children are present is already consistent with Department of Education policy. The Christian Democratic Party is all about the family and ensuring children are protected in all ways at all times. We are supportive of the implementation of the royal commission’s recommendations regarding Working With Children Checks to ensure the cohesive screening across all jurisdictions.
We support the provisions regarding the new enforcement mechanisms afforded to the Office of the Children’s Guardian. We support the Government’s amendment to allow a person pending charge to be suspended or placed on alternative duties only if the person has no contact with any children at any time pending charge. The Christian Democratic Party has a great commitment to ensure that New South Wales is the safest place for a child to be raised and to enjoy his or her future. The Christian Democratic Party commends the bill to the House.
The Hon. SARAH MITCHELL: On behalf of the Hon. John Ajaka, in reply: I thank members for their valuable contributions to this debate. While we are confident that this bill proposes some necessary and important amendments, it is always reassuring to know that it has withstood the test of energetic debate in this House, thereby ensuring that it is robust and capable of meeting its objectives. I refer to a couple of comments made by Mr David Shoebridge in his contribution. First, Mr David Shoebridge stated that no consequential amendments to the Child Protection (Working With Children) Act 2012 will be part of this. Secondly, he said that the definition of a “charged person” is not a new addition to the legislation. It is to clarify that a person charged with an offence under schedule 2 of the Child Protection (Working With Children) Act is to be suspended rather than dismissed, as is the case in relation to all other offences.
All decision-making in child protection should be driven by what is in the best interests of children, their safety and their wellbeing. This principle is at the heart of our child protection legislation and it drives our policymaking and practice. It also drives the need to be vigilant and attentive to the issues, and to constantly be looking at ways and means of improving protections for our children. The objects of the bill are to make various clarifying amendments to the Child Protection (Working With Children) Act removing inconsistencies and ambiguities, formalising processes, and including royal commission recommendations relating to information sharing; to amend the Children and Young Persons (Care and Protection) Act to enhance the Children’s Guardian’s enforcement powers; and to make certain amendments to legislation within the Education portfolio.
The majority of amendments to the Child Protection (Working With Children) Act clarify provisions in the Act such that applicants for and holders of Working With Children Check clearances are treated alike when surrendering a clearance, providing information on request or even for appeals when they have a pending charge. Similarly, the formalising provisions in relation to the processes for disclosing probity information to specified employers and the modification of the requirements to report misconduct information to the Children’s Guardian have been formulated following considerable consultation so as to ensure safety to children while not imposing overly onerous and unrealistic obligations on employers.
New South Wales is again taking the lead in implementing the royal commission recommendations, this time with regard to information exchange. The amendments make provision for information exchange between corresponding State and Territory Working With Children Check agencies, subject to ministerial protocols, which is likely to make it difficult for offenders to take cover under jurisdictional boundaries. The bill also makes it an offence to provide false and misleading information—again a recommendation of the royal commission. Enhancing the Children’s Guardian’s enforcement powers is an important step towards providing protection for children employed in the entertainment industry. The enhanced enforcement powers will allow the Children’s Guardian to make provision for enforceable undertakings, entry without warrant into premises where the employer is not but should be authorised, the issue of penalty notices by authorised officers of the Children’s Guardian, and the production of information pertaining to employment of children.
All of these amendments have been widely consulted on with the NSW Police Force and industry peak groups, all of whom support such measures being implemented. The amendments provide the Children’s Guardian with enforcement options that other agency regulators already have at their disposal. Further, the powers of entry provision is simply an extension of powers that the Children’s Guardian already has in relation to entering premises where employment is authorised. All appropriate safeguards will be in place for Children’s Guardian staff utilising the powers this bill enables. The bill also makes amendments to the Teaching Services Act and the Education (School Administrative and Support Staff) Act so as to suspend and place on alternative duties employees who have been refused a Working With Children Check clearance because of a pending charge for an offence under schedule 2 of the Child Protection (Working With Children) Act instead of being immediately dismissed, as is currently the requirement.
This will maintain the safety of children because employees will not be able to participate in child-related work, and it will be fairer to employees.
While I am confident that this bill is yet another step towards keeping our children and young people safe, as I mentioned earlier the best legislation cannot guarantee that they will be 100 per cent safe. That is why all employers must implement strong child‑safe policies, practices and strategies to complement the Working With Children Check regime to provide the optimum protection for our children. I thank all of those involved in the reform process and in the preparation of this bill, especially the Minister, who is present in the President’s gallery this evening. I thank members for their support of the passage of this bill through the House, and I commend the bill to the House.
DEPUTY PRESIDENT (The Hon. Paul Green): The question is that this bill be now read a second time.
Motion agreed to.
The TEMPORARY CHAIR (The Hon. Shayne Mallard): There being no objection, the Committee will deal with the bill as a whole.
The Hon. ADAM SEARLE: By leave: I move Opposition amendment Nos 1 and 2 on sheet C2016-101 in globo:
No. 1 Charged persons must not be on school grounds when children present
Page 9, Schedule 3. Insert after line 30:
 Section 93ZAB
Insert after section 93ZA:
93ZAB Charged person must not be on school grounds with children
The Secretary must ensure that a charged person who has not been suspended does not carry out duties at a school (and is not present at a school) at any time when children are at the school.
No. 2 Charged persons must not be on school grounds when children present
Page 11, Schedule 4. Insert after line 31:
 Section 32RA
Insert after section 32R:
32RA Charged person must not be on school grounds with children
The Secretary must ensure that a charged person who has not been suspended does not carry out duties at a school (and is not present at a school) at any time when children are at the school.
The rationale of the amendments was comprehensively articulated by the relevant shadow Minister in the other place and touched on by m e in my second reading contribution here. The Parliamentary Secretary and other contributors to the debate have said that the amendments are not necessary because they are covered by existing policy and according to some views they may even be covered by ex isting legislative provisions. We say let us take the precautionary principle and put it beyond any doubt .
The amendments are clear and directly to the point. The Minister indicated that he thought they were a bit restrictive. We take the view that we would rather err on the side of caution. We understand the Government is acting in good faith, as are all members in this place, but of course school halls and playgrounds are increasingly open to users other than people who are at school for purposes of work or picking up or dropping off children. We understand that in many cases—we would hope in all cases—where a charged person is attending to other duties that they would not be permitted to do so at a school premises. It is such an important matter of protection using first principles that it should be put beyond any doubt and be in black and white. That is why I have moved these amendments, and I ask all members to join with us and support them.
Mr DAVID SHOEBRIDGE: I indicate that The Greens will not be supporting these amendments . During the second reading debate, The Greens suggested an amendment to the amendment which might draw us closer, but I do not think it will get majority support in this House. More fundamentally, and I have had the benefit of some further discussion with staff of the Office of the Children’s Guardian, these amendments are not only unnecessary but would create potential complexity for school administrative officers and principals.
Section 9 of the Child Protection (Working with Children) Act provides that an employer must not commence employing or continue to employ a worker in child-related work if the employer knows or has reasonable cause to believe the worker is not the holder of a Working With Children Check clearance. In the current circumstances, if teachers or officers are charged under the Teaching Services Act with a schedule 2 offence they automatically lose their Working With Children Check clearance and that would automatically introduce section 9 of the Child Protection (Working with Children) Act that states the secretary, the employer, must not continue to employ that worker in child-related work.
As soon as a teacher loses the Working With Children Check clearance there is an obligation under section 9 for the secretary not to continue to employ that teacher in child-related work. The definition of child-related work explicitly includes work in an educational institution or a school. The Child Protection (Working with Children) Act already has a provision similar to that in the Opposition’s amendments. Having parallel but marginally dissimilar obligations directed to the secretary, one in the Teaching Services Act and one in the Child Protection (Working with Children) Act, will not be helpful. It will create confusion and it will not achieve the desired aim of ensuring that children are protected. The obligation of the employer under section 9 of the Child Protection (Working with Children) Act is mirrored by an obligation on the individual teacher under section 8, who would be committing an offence if he or she sought to work at a school without a Working With Children Check clearance. On those grounds these amendments are unnecessary and unhelpful.