Alert Digest 9 of 2005 - Parliament of Victoria · i Table of Contents Page Nos. Alert Digest No. 9...

No. 9 of 2005

Tuesday, 9 August 2005

On the

Accident Compensation (Amendment) Bill Accident Compensation (Further Amendment) Bill

Casino Control (Amendment) Bill Commonwealth Games Arrangements (Miscellaneous Amendments)

Bill House Contracts Guarantee (Amendment) Bill

Racing and Gaming (Police Powers) Bill Residential Tenancies (Further Amendment) Bill State Taxation Acts (General Amendment) Bill

Statute Law Revision Bill Vagrancy (Repeal) and Summary Offences (Amendment) Bill

Victoria State Emergency Services Bill Working with Children Bill

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Table o f Contents

Page Nos.

Alert Digest No. 9 of 2005 Accident Compensation (Further Amendment) Bill 5 Casino Control (Amendment) Bill 7 Residential Tenancies (Further Amendment) Bill 8 Vagrancy (Repeal) and Summary Offences (Amendments) Bill 10 Working with Children Bill 13

Ministerial Correspondence Accident Compensation (Amendment) Bill 21 Commonwealth Games Arrangements (Miscellaneous Amendment) Bill 24 House Contracts Guarantee (Amendment) Bill 27 Racing and Gaming (Police Powers) Bill 29 State Taxation Acts (General Amendment) Bill 31 Statute Law Revision Bill 33 Victoria State Emergency Services Bill 35

Appendices 1 – Index of Bills in 2005 37 2 –Committee Comments classified by Terms of Reference 39 3 – Ministerial Correspondence 41 4 – Submissions concerning the Working with Children Bill 43

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Section 35 (b)(iv) of the Interpretation of Legislation Act 1984 provides –

In the interpretation of a provision of an Act or subordinate instrument consideration may be given to any matter or document that is relevant including, but not limited to, reports of Parliamentary Committees.

ROLE OF THE COMMITTEE

The Scrutiny of Acts and Regulations Committee is an all-party Joint House Committee which examines all Bills and subordinate legislation (regulations) presented to the Parliament. The Committee does not make any comments on the policy aspects of the legislation. The Committee’s terms of reference contain principles of scrutiny that enable it to operate in the best traditions of non-partisan legislative scrutiny. These traditions have been developed since the first Australian scrutiny of bills committee of the Australian Senate commenced operation in 1982. They are precedents and traditions followed by all Australian scrutiny committees. Non-policy scrutiny within its terms of reference allows the Committee to alert the Parliament to the use of certain legislative practices and allows the Parliament to consider whether these practices are necessary, appropriate or desirable in all the circumstances.

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Terms o f Reference

Parliamentary Committees Act 2003, section 17

The functions of the Scrutiny of Acts and Regulations Committee are –

(a) to consider any Bill introduced into the Council or the Assembly and to report to the Parliament as to whether the Bill directly or indirectly – (i) trespasses unduly upon rights or freedoms; (ii) makes rights, freedoms or obligations dependent upon insufficiently defined

administrative powers; (iii) makes rights, freedoms or obligations dependent upon non-reviewable

administrative decisions; (iv) unduly requires or authorises acts or practices that may have an adverse effect

on personal privacy within the meaning of the Information Privacy Act 2000; (v) unduly requires or authorises acts or practices that may have an adverse effect

on privacy of health information within the meaning of the Health Records Act 2001;

(vi) inappropriately delegates legislative power; (vii) insufficiently subjects the exercise of legislative power to parliamentary

scrutiny;

(b) to consider any Bill introduced into the Council or the Assembly and to report to the Parliament – (i) as to whether the Bill directly or indirectly repeals, alters or varies section 85

of the Constitution Act 1975, or raises an issue as to the jurisdiction of the Supreme Court;

(ii) if a Bill repeals, alters or varies section 85 of the Constitution Act 1975, whether this is in all the circumstances appropriate and desirable;

(iii) if a Bill does not repeal, alter or vary section 85 of the Constitution Act 1975, but an issue is raised as to the jurisdiction of the Supreme Court, as to the full implications of that issue;

(c) to consider any Act that was not considered under paragraph (a) or (b) within 30 days immediately after the first appointment of members of the current Committee and to report to the Parliament with respect to that Act on any matter referred to in those paragraphs;

(d) the functions conferred on the Committee by the Subordinate Legislation Act 1994;

(e) the functions conferred on the Committee by the Environment Protection Act 1970;

(f) the functions conferred on the Committee by the Co-operative Schemes (Administrative Actions) Act 2001;

(g) to review any Act in accordance with the terms of reference under which the Act is referred to the Committee under this Act.

Scrutiny of Acts and Regulations Committee

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The Committee has considered the following Bills– Accident Compensation (Amendment) Bill Accident Compensation (Further Amendment) Bill Casino Control (Amendment) Bill Commonwealth Games Arrangements (Miscellaneous Amendments) Bill House Contracts Guarantee (Amendment) Bill Racing and Gaming (Police Powers) Bill Residential Tenancies (Further Amendment) Bill State Taxation Acts (General Amendment) Bill Statute Law Revision Bill Vagrancy (Repeal) and Summary Offences (Amendment) Bill Victoria State Emergency Services Bill Working with Children Bill

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Summary o f Comments

Vagrancy (Repeal) and Summary Offences (Amendment) Bill

[5]

Rights and freedoms – Reverse onus of proof – Presumption of innocence

The Committee notes that the offences in new sections 49D and 49F include reverse onus of proof provisions and that the sections essentially re-enact in the Summary Offences Act 1966 provisions existing in the Vagrancy Act 1966 (to be repealed).

The reverse onus provisions respectively provides that the defendant bears the burden of proving any lawful excuse for having custody or possession of any housebreaking implements, and any reasonable excuse for habitually consorting with a person found guilty of, or who is reasonably suspected of having committed, an organised crime offence.

The Committee notes that such reverse onus of proof provisions are ordinarily interpreted as imposing a standard of proof on the defendant (the evidential burden) based on the balance of probabilities.

Given that the sections re-enact existing provisions and the nature of the offences the Committee accepts that the reverse onus of proof provisions are reasonable and balance the need to protect the rights of a defendant with the need to meet other public interests in prosecuting such offences. The Committee accepts the provisions do not unduly trespass on the right of a defendant to be presumed innocent.

However, the Committee notes that where legislation includes a reverse onus of proof provision it expects that the explanatory memorandum should reasonably explain or justify this decision. In the present case the explanatory memorandum draws attention to the existence of the provisions but makes no comment as to the desirability to retain the reverse onus provision.

The Committee reiterates that it will continue to point out deficiencies in an explanatory memoranda particularly where the provision in question tests or infringes the Committee’s terms of reference.

The Committee draws attention to the provisions.

Working with Children Bill

[14]

The Committee reports to Parliament pursuant to a term of reference provided in section 17(a)(vi) of the Parliamentary Committees Act 2003, – ‘inappropriately delegates legislative power’.

The Committee notes that category 3 applications may result in either a negative or interim negative assessment and that this may occur on the basis of ‘findings of a prescribed kind’ provided to the Secretary from a ‘prescribed body’.


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The Committee notes that there appears to be no legislative guidance or limitation upon what are to be the ‘prescribed bodies’ and what may be findings of a prescribed kind made by such bodies.

The Committee is of the opinion that this may be a very wide power that would enable legislation to be made by regulations. For example, whether a ‘prescribed body’ is one that is a tribunal or disciplinary board established under an Act of Parliament and what kind of relevant disciplinary offences would constitute ‘a finding of a prescribed kind’.

The Committee will seek further advice from the Attorney-General whether it is appropriate or possible to define or limit the definition of ‘prescribed body’ and ‘finding of a prescribed kind’ for the purposes of the Act.

Pending the Attorney-General’s response the Committee draws attention to the provision.

[28]

The Committee reports to Parliament pursuant to a term of reference provided in section 17(a)(i) of the Parliamentary Committees Act 2003, – ‘trespasses unduly on rights and freedoms’ – ‘right to family relations’

The Committee notes Article 17 of the International Covenant on Civil and Political Rights which provides –

‘No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

The Committee will seek further information concerning the operation of section 28, whether a ‘person who is closely related to a child’ and who is otherwise issued with a negative assessment notice (for example in respect to work outside the family environment) commits any offence pursuant to section 34.

Example: A person engages in family child-related work within the meaning of section 28 of the Act and subsequently applies for an assessment notice to work in child-related work at a child care centre. The person receives a negative notice. Does the person commit an offence under section 34 for engaging in child-related work when they have received a negative assessment? Can the person continue to rely on the section 28 exemption notwithstanding the negative notice?

Pending further advice from the Attorney-General the Committee draws attention to the provision.

[34]

The Committee reports to Parliament pursuant to a term of reference provided in section 17(a)(i) of the Parliamentary Committees Act 2003, – ‘trespasses unduly on rights and freedoms’ – strict liability offence element of offence.

The Committee notes that the offence in section 34 (unlike sections 33 and 35) appears not to require a mental element of intent or recklessness. Rather, the offence is proven where a person, who has at any time been given a negative notice, and who does not have a current notice, either applies for or engages in ‘child-related work’. The strict liability element appears to cast a duty on every applicant, who is ultimately given a negative assessment, to know the negative outcome of their application.

Alert Digest No. 9 of 2005

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Currently, the only defence to the charge under section 34 is that the person may prove that they did not know that the work was ‘child-related work’.

There may be rare cases where the person makes an application for an assessment and then abandons the application without formally withdrawing it and is oblivious to the fact that a negative assessment has been made.

It appears to the Committee that without an appropriate defence of due diligence in knowing that a negative assessment had been made it may, in some rare cases in an unintended duty on the part of an applicant to ensure they know the outcome of their application.

The Committee will seek further advice from the Attorney-General whether an appropriate due diligence defence should be available in the circumstances.


[43]

The Committee reports to Parliament pursuant to a term of reference provided in section 17(a)(ii) of the Parliamentary Committees Act 2003, – ‘makes rights, freedoms or obligations dependant on insufficiently defined administrative powers’.

The Committee notes that under clause 43(b) the Secretary, by instrument, may delegate to another prescribed person or body. The term ‘prescribed person or body’ is not defined or limited in any way by the other provisions of the Act.

The Committee expects that where a provision seeks to include a wide or un-defined delegation provision that background material would be provided in the explanatory memorandum or the second reading speech sufficient to enable the Committee to assess the need for such a provision.

The Committee also draws attention to the incomplete description of the delegation provision as being one only to be exercised by public servants when subparagraph (b) of section 43 may permit ‘another prescribed person or body’ to be delegated powers.

The Committee will write to the Minister to seek further advice concerning the necessity or desirability to include a wide delegation provision. The Committee will also draw attention to the inadequate explanatory memorandum.

Pending receipt of this advice the Committee draws attention to the provision.


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Aler t D igest No . 9 o f 2005

Accident Compensation (Further Amendment) Bill

Introduced 20 July 2005 Second Reading Speech 20 July 2005 House Legislative Council Private Member’s Bill Hon. Bill Forward MLC Portfolio responsibility Treasurer and Minister for WorkCover

Purpose

The Bill amends the Accident Compensation Act 1985 (the ‘Act’) to provide that the Minister must determine which cases to pursue a legal liability from a third party to pay damages; the prevention of delegation of that power and the reporting of such cases annually to the Parliament.

The Committee notes this extract from the Second Reading Speech –

The Bill before the house today preserves the principle of third party recoveries where there has been negligence, but raises the bar in relation to the use of this action.

The Bill proposes to amend section 138 by adding the requirement that all third party recovery actions be authorised by the Minister for WorkCover, that this power cannot be delegated, and that the VWA report on the details of recoveries in its annual report each year. In essence, the capacity remains for recoveries to take place, but the Minister is accountable for its use.

While the VWA is an independent authority, section 20C states that the Authority is subject to the general direction and control of the minister, and also subject to specific written directions. It is appropriate, therefore, that the Minister takes the responsibility of ensuring that unpaid, voluntary carers are not inappropriately subjected to third party recoveries by the Authority.

Content and Committee comment

[Clauses]

[2]. The amendments come into operation on the day after Royal Assent.

[3]. Inserts new section 138 AA into the Act and provides –

(1) An action to recover any amount from a third party under the indemnity in section 138(1) cannot be commenced without the prior written approval of the Minister.

(2) The Minister cannot delegate his or her power of approval under sub-section (1).


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(3) The Authority must include in its report of operations under Part 7 of the Financial Management Act 1994 in respect of each financial year full details of any approvals given by the Minister under sub-section (1) during that year.

(4) The Minister must give the Authority any information the Authority reasonably requires in order to comply with its reporting obligation under sub-section (3).

The Committee makes no further comment.


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Casino Control (Amendment) Bill

Introduced 19 July 2005 Second Reading Speech 21 July 2005 House Legislative Assembly Minister introducing Bill Hon. John Pandazopoulos MLA Portfolio responsibility Minister for Gaming

Purpose

The Bill amends the Casino Control Act 1991 and the Casino (Management Agreement) Act 1993 to –

• vary the interval for the periodic review of a casino operator;

• vary the matters that the Victorian Commission for Gambling Regulation must consider in the periodic review of a casino operator;

• provide for amendment or variation of certain agreements;

• ratify an eighth Deed of Variation to the management agreement for the Melbourne Casino between the Minister for Gaming and Crown Limited;

• make minor amendments of a statute law revision nature.


[Clauses]

[2]. The provisions in the Bill come into operation on the day after Royal Assent.

[3]. Substitutes a new section 25(1) in the Casino Control Act 1991 to vary the periodic review of the casino operator that is required to be undertaken by the Victorian Commission for Gambling Regulation from not later than every 3 years to intervals not exceeding 5 years. The clause also provides for new additional matters the Commission is required to consider in the course of a periodic review.

[8 to 11]. Ratifies an eighth deed of variation to the casino management agreement. The deed of variation between the State and Crown is contained in the Schedule. The variation removes from the management agreement the requirement (the single purpose restriction) that Crown obtain the consent of the State prior to acquiring assets that are not related to running a casino. The variation will effectively enable Crown to carry on businesses in addition to the casino.



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Residential Tenancies (Further Amendment) Bill

Introduced 19 July 2005 Second Reading Speech 21 July 2005 House Legislative Assembly Minister introducing Bill Hon. Bronwyn Pike MLA Minister responsible Hon. Candy Broad MLC Portfolio responsibility Minister for Housing

Purpose

The Bill amends the Residential Tenancies Act 1997 (the ‘Act’) (RTA) to introduce protections for residents sharing rooms in rooming houses, and to apply the caravan park provisions of the Act to residents after sixty days, rather than ninety days.

The Committee notes these extracts from the Minister’s Second Reading Speech –

The legal coverage of residents in shared rooms in rooming houses has been in question since the decision in Kirkland Fisher v. Aboriginal Hostels [1998] VSCA 130 (Fisher), which determined that the provisions in the Rooming Houses Act 1990 only applied to residents with exclusive occupation of a room. As the provisions referred to in Fisher have been re-enacted without substantive change in the RTA, there has been some doubt as to whether the provisions of the RTA extend to cover residents in shared rooms in rooming houses.

As a consequence, many residents of shared rooms in rooming houses have found themselves without any rights or safeguards under the RTA and without the same statutory rights that are enjoyed by residents of other forms of residential properties.

…

Currently, a person who does not have prior written consent from the caravan park owner to occupy a site in a caravan park as his or her only or main residence, must have occupied a site for a minimum of 90 consecutive days before he or she is regarded as a resident and eligible for protection under the Act. Under the new provisions, this period will be reduced to 60 days. This will afford longer term occupiers of caravan park sites rights and protections under the Act sooner than is currently the case, without interfering with the provision of accommodation for tourism.


[Clauses]

[2]. Other than sections 7, 9, 10, 11, 12 and 13, the provisions in the Bill come into effect on Royal Assent. The remaining sections come into effect on proclamation but not later than by 1 December 2005.

[4]. Amends section 3 of the Act to insert new definitions of "exclusive occupancy right", "room capacity", "shared room", "shared room right", and amends the definition of "resident" as it applies to caravan parks and makes a minor amendment to the definition of "rent".

[5]. Inserts new sub-clauses (2) and (3) into section 92 of the Act, and provides that a residency right may be either an exclusive occupancy right or a shared room right.


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[6]. Inserts new sections 92A and 92B into the Act.

Section 92A confirms that an exclusive occupancy right entitles a resident to occupy a room to the exclusion of others, and clarifies that a resident may enjoy an exclusive possession right jointly with others. The example given is of members of a domestic partnership occupying a room with an exclusive occupancy right.

Section 92B provides for a shared room right, under which a resident of a room occupies the room with one or more other residents selected by the rooming house owner.

[7]. Inserts a new section 92C into the Act requiring the rooming house owner to give each resident a notice setting out his or her rights before the occupancy commences.

[9]. Inserts a new Division 1A of Part 3 of the Act relevant to shared room rights.

[10]. Inserts new sub-clauses (1A) and (2A) into section 102 of the Act to allow a person in a shared room to refer a matter to the Director of Consumer Affairs for investigation where there has been a reduction of rent following a change in room capacity, but where the resident believes the rent reduction is insufficient, and the rent is excessive.

[17]. Amends section 113 of the Act and declares that, by simply sharing a room, a resident does not breach his or her duty to preserve the quiet enjoyment of the premises.

[18]. Inserts new sub-clauses (2) and (3) at the end of section 122 of the Act to impose an obligation on a rooming house owner to take all reasonable steps to ensure that a resident of a shared room does not do, or permit to be done, anything which interferes with the privacy, peace and quiet of, or the proper use and enjoyment of the room by, other residents of the room; and to clarify that, by simply permitting the sharing of a room, a rooming house owner does not breach a duty to preserve the quiet enjoyment of the premises.

[20 and 21]. Amends sections 136 and 137 of the Act to ensure that a rooming house owner can gain access to a shared room in the circumstances permitted by that section and clarifies the grounds for entry into a shared room by a rooming house owner, where a resident of the room has failed to comply with duties under the Act.

[22]. Amends section 145 to require caravan park owners to notify caravan park residents of the residency rights that are conferred on them after 60 days of continuous occupation in the caravan park as their main residence.

[27]. Amends section 284 to permit a rooming house owner to give a resident of a shared room notice to vacate based on use of the room for an illegal purpose.

[28]. Amends section 355 to ensure that a warrant of possession can be directed to a particular person in a shared room.



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Vagrancy (Repeal) and Summary Offences (Amendment) Bill

Introduced 19 July 2005 Second Reading Speech 21 July 2005 House Legislative Assembly Minister introducing Bill Hon. Rob. Hulls MLA Portfolio responsibility Attorney-General

Purpose

The Bill repeals the Vagrancy Act 1966 and re-enacts certain provisions in the Summary Offences Act 1966 and the Crimes Act 1958.


[Clauses]

[2]. The provisions in the Bill commence on the day after Royal Assent.

[3]. The Vagrancy Act 1966 is repealed.

[4]. Inserts new section 19 into the Summary Offences Act 1966 which re-enacts the offence of obscene exposure in a public place. The offence is currently in section 7(1)(c) of the Vagrancy Act 1966.

[5]. Inserts new Division 8 into Part I of the Summary Offences Act 1966 (new sections 49A to 49F) containing the following offences –

• 49A – begging or gathering alms re-enacts, with amendments, the offence (currently in section 6(1)(d) of the Vagrancy Act 1966) of begging or gathering alms, or causing, procuring or encouraging a child to beg or gather alms. The offence is split into 2 offences.

49A(1) A person must not beg or gather alms. Penalty 12 months imprisonment.

49A(2) A person must not cause, procure or encourage a child to beg or gather alms. Penalty 12 months imprisonment.

The current section in the Vagrancy Act 1966 provides –

6(1)(d) Any person who begs or gathers alms or causes or procures or encourages a child to beg or gather alms shall be guilty of an offence. Penalty: For a first offence – imprisonment for one year; For a second or subsequent offence against this section imprisonment for two years.

The Committee notes this extract from the Minister’s Second Reading Speech –

The government has decided to retain the offence of begging and the related offence of encouraging or procuring a child to beg. The government is committed to poverty law reform and, in a fairer Victoria, has undertaken to monitor the impact of the offence of begging on people who suffer genuine hardship.


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The government, in partnership with police, welfare, local government and advocacy groups, will continue to explore means to support people who resort to begging when faced with extreme poverty.

• 49B – loitering with intent re-enacts in an amended form the offence (currently in section 7(1)(f) of the Vagrancy Act 1966) of being a known or reputed thief or a drug related offender loiters in a public place with intent to commit an indictable offence. The new provision now includes persons who are known or reputed to have committee drug offences but also qualifies the offence by adding that the requirement that while such person loiters they must engage in conduct in furtherance of the commission of an indictable offence.

• 49C – being disguised with unlawful intent re-enacts the offences (currently in sections 6(1)(f) and 7(1)(h) of the Vagrancy Act 1966) of being disguised or having an article of disguise with unlawful intent.

• 49D – possessing housebreaking implements re-enacts the offence (currently in section 7(1)(g) of the Vagrancy Act 1966) of having housebreaking implements in possession or custody without lawful excuse. As with the current offence, the defendant has the burden of proving a lawful excuse.

The current section in the Vagrancy Act 1966 provides –

7(1)(g) Any person who has in his custody or possession without lawful excuse (the proof of which excuse shall be on such person) any picklock-key crow jack bit or other implement of housebreaking shall be guilty of an offence.

• 49E – escaping from lawful custody re-enacts the offence (currently in section 8(b) of the Vagrancy Act 1966) of escaping or attempting to escape from lawful custody. However the new provision reduces the maximum penalty from 5 years to 2 years.

• 49F – consorting re-enacts the offence (currently in section 6(1)(c) of the Vagrancy Act 1966) of habitually consorting without reasonable excuse. However, whereas the current offence refers to habitually consorting with reputed thieves, the new offence refers to habitually consorting with persons found guilty or reasonably suspected of an organised crime offence. ‘Organised crime offence’ is defined in the same way as in the Major Crime (Investigatory Powers) Act 2004. As with the current offence, the defendant has the burden of proving a reasonable excuse.

The current section in the Vagrancy act 1966 provides –

6(1)(c) Any person who habitually consorts with reputed thieves unless such person, on being thereto required by the court, gives to the satisfaction of the court a good account of his so consorting shall be guilty of an offence.


The Bill also provides for a new consorting offence to target activities that may be a prelude to organised crime. It will be an offence, without reasonable excuse, to habitually consort with a person convicted or suspected of an organised crime offence.

While the original consorting offences targeted thieves, the new offence is directed at people involved in organised crime and is designed to assist police in creating a hostile environment for organised crime.


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Rights and freedoms – Reverse onus of proof – Presumption of innocence

The Committee notes that the offences in new sections 49D and 49F include reverse onus of proof provisions and that the sections essentially re-enact in the Summary Offences Act 1966 provisions existing in the Vagrancy Act 1966 (to be repealed).

The reverse onus provisions respectively provides that the defendant bears the burden of proving any lawful excuse for having custody or possession of any housebreaking implements, and any reasonable excuse for habitually consorting with a person found guilty of, or who is reasonably suspected of having committed, an organised crime offence.

The Committee notes that such reverse onus of proof provisions are ordinarily interpreted as imposing a standard of proof on the defendant (the evidential burden) based on the balance of probabilities.

Given that the sections re-enact existing provisions and the nature of the offences the Committee accepts that the reverse onus of proof provisions are reasonable and balance the need to protect the rights of a defendant with the need to meet other public interests in prosecuting such offences. The Committee accepts the provisions do not unduly trespass on the right of a defendant to be presumed innocent.

However, the Committee notes that where legislation includes a reverse onus of proof provision it expects that the explanatory memorandum should reasonably explain or justify this decision. In the present case the explanatory memorandum draws attention to the existence of the provisions but makes no comment as to the desirability to retain the reverse onus provision.

The Committee reiterates that it will continue to point out deficiencies in an explanatory memoranda particularly where the provision in question tests or infringes the Committee’s terms of reference.

The Committee draws attention to the provisions.

[6]. Inserts new section 31B into the Crimes Act 1958. This section re-enacts the offence of being armed with criminal intent which is currently in section 8(a) of the Vagrancy Act 1966.

[7]. Makes a consequential amendment to section 60B(2) of the Crimes Act 1958, so that the re-enacted offence of obscene exposure (see [4] above) is included as a "sexual offence" for the purposes of that section. Section 60(B) of the Crimes Act 1958 deals with offences related to loitering near schools.



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Working with Children Bill

Introduced 20 July 2005 Second Reading Speech 21 July 2005 House Legislative Assembly Minister introducing Bill Hon. Rob. Hulls MLA Portfolio responsibility Attorney-General

Purpose

The main purpose of this Act is to assist in protecting children from sexual or physical harm by ensuring that people who work with, or care for them have their suitability to do so checked by the Secretary of the Department of Justice.

This Bill also amends the Sentencing Act 1991 to prevent sentencing courts from having regard to any consequences that may arise under this Act and amends Schedule 1 to that Act to broaden the range of sexual offences which may cause an offender to be treated as a serious sexual offender under that Act.

This Act also makes necessary consequential amendments to the –

• Sex Offenders Registration Act 2004,

• Victorian Civil and Administrative Tribunal Act 1998 with respect to the procedure of VCAT on applications made to it under this Act; and

• Victorian Institute of Teaching Act 2001 to make further provision for certain notification requirements for the purposes of this Act.

Submissions

The Committee received submissions from the Office of the Victorian Privacy Commissioner and Victoria Legal Aid. These submissions are reproduced as Appendix 4.

Summary

• The Act will establish a regime for a government agency to issue assessment notices (vetted employment checks) based on criminal records and professional body records, for persons applying for ‘child-related work’. The work may be for profit or gain or be performed in a voluntary capacity. The agency will issue assessment notices to those persons who are not judged unsuitable and negative notices to those considered unsuitable to work with children.

• ‘Child-related work’ (section 9(1)) is work that usually involves, or is likely to involve, regular direct contact (section 3) with a child in connection with a service, body, place or activity (section 9(3)) in circumstances where the contact is not directly supervised by another person. Direct supervision does not mean constant physical presence (section 9(2)).

• It will be a criminal offence for an employer or organisation to engage a person to work with children if that person does not have as assessment notice. A person who has a negative assessment must not even apply to work with children.

• Where a person is given a negative assessment notice the Bill includes a right of appeal to VCAT. Appeal rights are limited in the case of category 1 applicants.


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• Professional bodies may provide relevant information to the Secretary, such as a serious and relevant disciplinary finding.

• Certain exemptions from the assessment regime apply they are – (a) Parent volunteers whose child is participating in the same activity with other children (section 27), (b) persons closely related to child (defined in section 28), (c) a child (under 18) and students at an institution who are under the age of 20, (d) registered teachers, (e) sworn police officers, (f) visiting workers not ordinarily resident in Victoria and who do not ordinarily work in Victoria.

• The new assessment regime will be implemented over a 5 year period and will be reviewed 3 years after commencement.

• There are 3 categories of applications where a negative assessment must or may be made (sections 12, 13 and 14). There are appeal rights to the Victorian Civil and Administrative Tribunal (VCAT) in cases where a negative assessment is made. However, there are very limited appeal rights (e.g. mistaken identity) where an application involves a person who is subject to certain sex offender reporting and or serious sex offender monitoring Acts. Applicants that do not fall within one of the prescribed categories will qualify for an assessment notice. Assessment notices will be valid for 5 years (unless a prior specified disqualifying event occurs). Where a person holding an assessment is charged with a relevant offence an ‘interim negative notice’ may be issued.

• In sentencing a person a court may not have regard to any consequence a sentence may have on an assessment notice or application made under the Act.


[Clauses]

[2]. The provisions in the Bill come into operation on proclamation but not later than by 1 July 2006.

The commencement of working with children checks will be set by Orders in Council made under clause 9(5) of the Bill, which may be made up until 1 July 2011.


There will be a five year implementation phase, during which the legislation will be progressively rolled out across all fields of child related work. There will be ample time and assistance for all those who need to comply with this Bill to do so.

[3]. Provides definitions for the purposes of the Act.

“child” means a person under 18 years of age.

[9]. Defines child-related work broadly and captures paid employment, work as part of a religious vocation, work in connection with a corporation, unincorporated body or a partnership and volunteering. Part 3 (clauses 27 to 32) provides for exemptions from the check.

Application for assessment (non-category 1, 2 or 3)

[10]. Sets out the requirements for an application for a working with children check. The application must authorise the conduct of a police record check, and the making of enquiries to a relevant prescribed body, such as a professional registration board.


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Category 1 – Secretary must refuse assessment – limited appeal rights to VCAT

[12]. The Secretary must refuse to give an assessment where a person is on the Sex Offender Register or is subject to an extended supervision order under the Serious Sex Offenders Monitoring Act 2005; or as an adult, has been convicted or found guilty of an offence specified in clause 1 of Schedule 1 to the Sentencing Act 1991 (sexual offences) against a child or who has been convicted or found guilty of child pornography offence.

Category 2 – presumption against positive assessment unless no unjustifiable risk

[13]. Provides for applications from persons who have been convicted or found guilty of certain categories of offences or have charges pending in respect to those categories of offences. There is a presumption that an application in this category will be refused unless the Secretary is satisfied that the giving of an assessment notice would not pose an unjustifiable risk to the safety of children. In exercising this discretion the Secretary must have regard to certain criteria prescribed in section 13(2)(a) to (j).

Category 3 – Presumption to grant assessment with discretion to refuse where appropriate

[14]. In category 3 there is a presumption that the Secretary will grant the application. The Secretary has a discretion to refuse an application if he or she thinks appropriate, having regard to the prescribed criteria. The category involves applications from persons who have been subject to a finding of a prescribed kind (such as a cancellation of a practitioner's registration) made by a prescribed body (such as the Medical Practitioners Board of Victoria) or who has been convicted or found guilty of an offence against Part 4 of the Act (failing to comply with the Act, for example, engaging in child-related work without an assessment notice) or has such a charge pending.

The Committee reports to Parliament pursuant to a term of reference provided in section 17(a)(vi) of the Parliamentary Committees Act 2003, – ‘inappropriately delegates legislative power’.

The Committee notes that category 3 applications may result in either a negative or interim negative assessment and that this may occur on the basis of ‘findings of a prescribed kind’ provided to the Secretary from a ‘prescribed body’.

The Committee notes that there appears to be no legislative guidance or limitation upon what are to be the ‘prescribed bodies’ and what may be findings of a prescribed kind made by such bodies.

The Committee is of the opinion that this may be a very wide power that would enable legislation to be made by regulations. For example, whether a ‘prescribed body’ is one that is a tribunal or disciplinary board established under an Act of Parliament and what kind of relevant disciplinary offences would constitute ‘a finding of a prescribed kind’.

The Committee will seek further advice from the Attorney-General whether it is appropriate or possible to define or limit the definition of ‘prescribed body’ and ‘finding of a prescribed kind’ for the purposes of the Act.



16

Applicant’s right to make submission before final negative determination is made

[16]. If the Secretary intends to issue a negative notice, before making a final decision (other than on a category 1 application), he or she must give the applicant an opportunity to make a submission.

Non-category application must be granted

[17]. The Secretary must grant an assessment notice to all applications that fall outside categories 1, 2 and 3 (i.e. persons with no relevant criminal record or relevant disciplinary findings must be given a favourable assessment notice). Where the Secretary exercises a discretion in favour of an applicant in category 2 and 3 applications an assessment notice must also be given.

The Secretary must give a negative notice to all category 1 applicants. In cases where a negative notice is issued, it must be accompanied by a written notice giving reasons for the decision and information about the applicant's right to appeal to VCAT.

[18]. If the Secretary is aware of the applicants prospective employer or employer agency he or she must give that employer a copy of the positive, negative or interim negative assessment notice.

[19] An assessment notice is valid for 5 years but may be revoked or surrendered earlier.

[20]. Requires the holder of an assessment notice, or a person who has applied for an assessment notice and is waiting on the outcome, to notify the Secretary, any person who has engaged him or her in child-related work or any agency with whom he or she is listed of any relevant change (defined in the section) to their circumstances.

[21]. Deals with re-assessment of a person’s eligibility to have an assessment notice where the Secretary is notified of a change of circumstances (by the person, a prescribed body or the Chief Commissioner of Police).

[22]. Requires a person who receives a negative notice or an interim negative notice to inform any person by whom he or she is engaged in child-related work, or any agency where they are listed as being available to perform child-related work.

[25]. A person who has received a negative assessment may only re-apply after 5 years have passed or where there has been a relevant change in their circumstances such as the quashing of a finding of guilt.

[26]. Sets out VCAT's jurisdiction is respect to category 1 applicants.

Exemptions from the working with children check

[27]. A parent (volunteer) (includes a domestic partner of the parent) will not be required to get an assessment notice to volunteer in relation to an activity in which their child ordinarily participates.

[28]. A person who is closely related (defined by the section as including ‘domestic partners’) to a child (children) will not require an assessment notice to engage in child-related work when all the children with whom he or she has direct contact during the work are closely related to him or her.


17

The Committee reports to Parliament pursuant to a term of reference provided in section 17(a)(i) of the Parliamentary Committees Act 2003, – ‘trespasses unduly on rights and freedoms’ – ‘right to family relations’

The Committee notes Article 17 of the International Covenant on Civil and Political Rights which provides –

‘No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

The Committee will seek further information concerning the operation of section 28, whether a ‘person who is closely related to a child’ and who is otherwise issued with a negative assessment notice (for example in respect to work outside the family environment) commits any offence pursuant to section 34.

Example: A person engages in family child-related work within the meaning of section 28 of the Act and subsequently applies for an assessment notice to work in child-related work at a child care centre. The person receives a negative notice. Does the person commit an offence under section 34 for engaging in child-related work when they have received a negative assessment? Can the person continue to rely on the section 28 exemption notwithstanding the negative notice?

Pending further advice from the Attorney-General the Committee draws attention to the provision.

[29]. A child will not be required to get an assessment notice to work in child-related work. Further a school student who has not attained the age of 20 years (that is an 18 or 19 year old) and who undertakes voluntary work at their school, or as organised by their school, will not be required to get an assessment notice to work in child-related work.

[30]. Registered teachers will not need a separate assessment under the Act. (The registration scheme for teachers is similar to the scheme proposed by the Act).

[31]. Police Officers who are neither suspended nor dismissed from the police force will not be required to get an assessment notice to work in child-related work.

[32]. Visiting workers who do not live in Victoria and who do not ordinarily perform child-related work in Victoria are not required to get an assessment notice.

Offences related to child-related work

[33]. It is an offence to engage in child-related work without an assessment notice.

[34]. A person who has ever been issued a negative assessment notice and does not have a current assessment notice must not apply for child-related work. For the purposes of this offence a person who holds a negative notice will be considered to have applied for child-related work even if that work was directly supervised by another person.

The Committee reports to Parliament pursuant to a term of reference provided in section 17(a)(i) of the Parliamentary Committees Act 2003, – ‘trespasses unduly on rights and freedoms’ – strict liability offence element of offence.

The Committee notes that the offence in section 34 (unlike sections 33 and 35)


18

appears not to require a mental element of intent or recklessness. Rather, the offence is proven where a person, who has at any time been given a negative notice, and who does not have a current notice, either applies for or engages in ‘child-related work’. The strict liability element appears to cast a duty on every applicant, who is ultimately given a negative assessment, to know the negative outcome of their application.

Currently, the only defence to the charge under section 34 is that the person may prove that they did not know that the work was ‘child-related work’.

There may be rare cases where the person makes an application for an assessment and then abandons the application without formally withdrawing it and is oblivious to the fact that a negative assessment has been made.

It appears to the Committee that without an appropriate defence of due diligence in knowing that a negative assessment had been made it may, in some rare cases in an unintended duty on the part of an applicant to ensure they know the outcome of their application.

The Committee will seek further advice from the Attorney-General whether an appropriate due diligence defence should be available in the circumstances.


[35]. A person must not engage a person who does not have an assessment notice in child-related work. A person is only guilty of this offence if they know that the work they are engaging a person in is child-related work and they know that the worker does not have an assessment notice or are reckless about whether the worker has an assessment notice.

[36]. It is an offence for an agency to offer the services of a person in child-related work if that person does not have an assessment notice.

[37]. It is an offence to use a volunteer assessment notice in order to engage in child-related work for profit or gain. It is an offence for an employer to engage a person with a volunteer assessment notice to perform work for profit or gain.

[38]. It is an offence to use a false assessment notice or another person's assessment notice.

[39]. It is an offence to provide false or misleading information in or in relation to a working with children check, or on a reassessment.

[40]. It is an offence to give confidential information (other than in the prescribed circumstances) acquired through the working with children check or under other relevant provisions of the Act.

[43]. Provides the Secretary with delegation powers –

The Secretary, by instrument, may delegate to –

(a) any person or class of person employed under Part 3 of the Public Administration Act 2004 in the administration of this Act; or

(b) another prescribed person or body –

any of the Secretary's powers under this Act, other than this power of delegation.


19

The Committee reports to Parliament pursuant to a term of reference provided in section 17(a)(ii) of the Parliamentary Committees Act 2003, – ‘makes rights, freedoms or obligations dependant on insufficiently defined administrative powers’.

The Committee notes that under clause 43(b) the Secretary, by instrument, may delegate to another prescribed person or body. The term ‘prescribed person or body’ is not defined or limited in any way by the other provisions of the Act.

The Committee expects that where a provision seeks to include a wide or un-defined delegation provision that background material would be provided in the explanatory memorandum or the second reading speech sufficient to enable the Committee to assess the need for such a provision.

The Committee also draws attention to the incomplete description of the delegation provision as being one only to be exercised by public servants when subparagraph (b) of section 43 may permit ‘another prescribed person or body’ to be delegated powers.

The Committee will write to the Minister to seek further advice concerning the necessity or desirability to include a wide delegation provision. The Committee will also draw attention to the inadequate explanatory memorandum.

Pending receipt of this advice the Committee draws attention to the provision.

Personal immunity

[48]. The Secretary and public servants performing functions under the Act are not personally liable in the performance of a function under the Act if they act in good faith. Any liability resulting from the act or omission attaches to the State.

[49]. Regulations may be made to give effect to the purposes of the Act.

[50] Amends section 5(2BC) of the Sentencing Act 1991 to provide that a Court may not, in sentencing an offender, have regard to any consequence that may arise under the Act.



20

21

Min is ter ia l Cor respondence

Accident Compensation (Amendment) Bill

The Bill was introduced into the Legislative Assembly on 17 May 2005, by the Hon. Rob Hulls MLA. The Committee considered the Bill on 30 May 2005 and made the following comments in Alert Digest No. 7 of 2005 tabled in the Parliament on 14 June 2005.

Committee’s Comment

[2], [17 to 20] and [32]

The Committee reports to Parliament pursuant to a term of reference provided in section 17(a)(i) of the Parliamentary Committees Act 2003 – ‘trespasses unduly to rights and freedoms’.

Clauses 17 to 20

The Committee notes that there is no explanation provided in either the second reading speech or the explanatory memorandum regarding the retrospective operation of theses provisions.

In respect to the retrospective application of the amendments made by clauses 17 to 21 the Committee will seek further advice whether the amendments may adversely effect any persons hearing loss claim.

Clause 32

In respect to clause 32 concerning the amendment to the Accident Compensation and Transport Acts (Amendment) Act 2003, whilst the Committee considers the amendment does no more than correct an incorrect reference to an Act with a reference to the correct Act, the Committee nevertheless considers the Parliament should be provided an explanation for the reason why retrospective application is necessary.

Pending the Minister’s response the Committee draws attention to the provisions.

Minister’s Response

I refer to your letter dated 14 June 2005 in relation to the Accident Compensation (Amendment) Bill 2005 (“the Bill”).

You have requested further information in relation to two aspects of the Bill.

The first issue is the retrospective application of the amendments at clauses 17 to 20 of the Bill relating to further hearing loss, and whether this may have any adverse effect on any person’s claim for further hearing loss. These clauses are deemed to have commenced on 18 November 2004, the date of the Second Reading speech of the Accident Compensation Legislation (Amendment) Act 2004.


22

In 2004, following a Court of Appeal decision in the matter of VWA v del Borgo, amendments were made to the further hearing loss provisions in the Accident Compensation Act 1985. Further hearing loss is a claim for hearing loss where the worker has previously received a settlement or award for a prior hearing loss.

Until the del Borgo decision, the VWA had interpreted the provisions in relation to hearing loss to provide that the worker was only compensated per percentage point of hearing loss. However, in del Borgo the Court held that in assessing further hearing loss, it is not appropriate to deduct the prior percentage loss from the current percentage loss. This would result in windfall gains to the worker arising from indexation of the dollar value of each percentage point.

The 2004 amendments, which took effect on 18 November 2004, were intended to rectify this situation. However, these 2004 amendments inadvertently failed to give effect to this intention, and instead actually provided workers with claims for further hearing loss with an even greater amount of compensation than they would have received under the del Borgo decision.

As this was not the intention of the amendments, and as the over-riding intention of the Accident Compensation Act 1985 is to provide fair and equitable compensation, the amendment was made retrospective to 18 November 2004, the date on which the impact of the del Borgo decision should have been corrected by the 2004 amendments.

Since 18 November 2004, approximately 60 claims for a further deterioration in hearing have been lodged with the VWA. Of these, about two-thirds of them have been resolved, and will therefore not be affected by the retrospective nature of these amendments as the VWA will not re-open resolved claims and apply the legislation retrospectively to them.

Of the remaining claims, the VWA is not aware of any proceedings that have been issued in relation to claims lodged since that time. As such, no worker should be disadvantaged by incurring legal costs. However, in the event that:

• a worker has lodged a claim between 18 November 2004 and 19 May 2005 (the date of the Second Reading speech on the Bill); and

• that claim is not resolved; and

• the worker issues proceedings

the VWA will consider bearing the worker’s legal costs in relation to the proceedings, to ensure that the worker is not disadvantaged.

The second issue raised in your letter is the retrospective application of Clause 32 of the Bill. As the Committee has noted, this clause corrects an incorrect reference to an Act in amendments made to the Transport Accident Act 1986 (“the TA Act”) by section 27 of the Accident Compensation and Transport Accident Acts (Amendment) Act 2003 (“the amending Act”).

Section 27 of the amending Act intended to repeal sections 46A(8) and (9) of the TA Act, but inadvertently referred to the Transport Act 1983 instead of the TA Act. As passed, section 27 had no effect, as there have never been sections 46A(8) and (9) of the Transport Act 1983.

Section 32 of the amending Act inserts a new section 177 in the TA Act, which is a transitional provision that re-enacts section 46A, including sub-sections (8) and (9).


23

The correction of the incorrect reference is retrospective so as to give effect to the intention that these provisions would be repealed from the time that these provisions were re-enacted in the new section 177, thus avoiding a duplication and any possible ambiguity. No rights are in any way affected.

JOHN LENDERS MP Minister for WorkCover

20 June 2005

The Committee thanks the Minister for this response.


24

Commonwealth Games Arrangements (Miscellaneous Amendments) Bill

The Bill was introduced into the Legislative Assembly on 20 April 2005, by the Hon. John Thwaites MLA. The Committee considered the Bill on 2 May 2005 and made the following comments in Alert Digest No. 5 of 2005 tabled in the Parliament on 3 May 2005.


[23]

1. The Committee reports to Parliament pursuant to a term of reference provided in section 17(a)(i) of the Parliamentary Committees Act 2003, – trespasses unduly on rights and freedoms’.

The Committee will seek further information from the Minister concerning the nature of the mechanism contained in the Bill that may redress any adverse impact on businesses in the relevant areas during the Games period.

2. The Committee reports to Parliament pursuant to a term of reference provided in section 17(b)(iii) of the Parliamentary Committees Act 2003, – ‘where a Bill does not repeal, alter or vary section 85 of the Constitution Act 1975, but where an issue is raised as to the jurisdiction of the Supreme Court, as to the full implications of that issue’.

The Committee will also seek further advice why in the particular circumstances a section 85 Constitution Act 1975 declaratory provision and statement is not deemed appropriate.

Pending the Minister’s response the Committee draws attention to the provision.


Thank you for your letter of 3 May 2005 requesting clarification of two matters associated with the Commonwealth Games Arrangements (Miscellaneous Amendments) Bill.

The first matter on which you seek clarification is the nature of the mechanism contained in the Bill that may redress any adverse impact on businesses in the relevant areas during the games period.

A new section 56AC is to be inserted in the Commonwealth Games Arrangements Act 2001. Section 56AC provides that during a Games period, the powers of a person who has a pre-existing right to carry on a business in premises in a Games management area must not be exercised except:

a) With the consent of the Secretary; or

b) in accordance with any agreement or arrangement entered into with the Secretary or with the Corporation.


25

In addition, a person who has a pre-existing right to carry on a business in premises in a Games management area, being premises in respect of which the person has a right of occupation, may, during a Games period, carry on that business:

(1) to the extent, and in accordance with the conditions, that the Secretary, after consultation with the committee of management or other land manager (as the case requires), approves; or

(2) in the case where an agreement or arrangement has been entered into with the Corporation, to the extent, and in accordance with the agreement or arrangement and any conditions, that the Corporation, after consultation with the committee of management or other land manager (as the case requires), approves; or

(3) in the event of a dispute, to the extent, and in accordance with the conditions, that the Minister approves.

The Corporation refers to the Melbourne 2006 Commonwealth Games Corporation and the Secretary refers to the Secretary of the Department of Victorian Communities, both statutory authorities set up under the Act.

Therefore under the Bill, a person with a business in a Games Management area has the opportunity and the right to negotiate with the Corporation or the Secretary in relation to the operation of the business during the Games Period.

The person is required to enter into an agreement to formalise those arrangements. If a person does not enter into such an agreement then the new section provides that during a Games period the person may only operate the business to the extent and in accordance with the conditions that the Secretary approves, after consultation with committees of management or the land manager.

This reflects the practical situation that during the Games, it is likely that some businesses in Games management areas will have some restrictions placed on the operating hours and conditions. It is expected that any interruption will be for a relatively short period of time during the Games.

In some cases it is possible that the Secretary or the Corporation would be prepared to hire the premises to use them for the delivery of the Games.

If this is the case then the operators have the opportunity to reach an agreement with either the Corporation or the Secretary so that the operators of the businesses are not out of pocket.

It may also be possible for the operators of sporting clubs to have costs associated with the relocation of the club or the use of alternative premises for the duration of the time when the Games will affect there activities.

If an operator is not able to reach an agreement on this basis with either the Corporation or the Secretary then the Secretary will consult with the relevant committee of management or the land manager and develop a reduced set of hours of operation at the premises during the Games period.

The hours of operation will only be reduced and conditions will only be imposed to the extent necessary to ensure that the standard of the presentation of the Games is not affected.


26

The second matter on which you seek clarification is “… why in the particular circumstances a section 85 Constitution Act 1975 declaratory provision and statement is not deemed appropriate.”.

As you are aware, section 85(5) of the Constitution Act 1975 states that a provision of an Act, other than a provision which directly repeals or directly amends any part of section 85, is not to be taken to repeal, alter or vary section 85, unless it follows the processes set out in section 85.

In this instance the jurisdiction of the Supreme Court of Victoria is not being repealed, altered or varied. A person may still bring an action in the Supreme Court. However the new section 57AL will mean that the remedy of an award of compensation is not a remedy available to be granted by the Court.

I trust that the above information satisfactorily addresses the issues raised by you.

Justin Madden MLC Minister for the Commonwealth Games

21 June 2005



27

House Contracts Guarantee (Amendment) Bill

The Bill was introduced into the Legislative Assembly on 4 May 2005, by the Hon. Rob Hulls MLA. The Committee considered the Bill on 16 May 2005 and made the following comments in Alert Digest No. 6 of 2005 tabled in the Parliament on 17 May 2005.


[2]

The Committee notes the delayed commencement provision and notes than no explanation is provided in either the explanatory memorandum or the second reading speech for the necessity or desirability for a delay in commencement of more than 2 years.

The Committee will seek further advice from the Minister.

Pending the response of the Minister the Committee draws attention to the provision.


House Contracts Guarantee (Amendment) Bill: Commencement Date

I refer to your letter of 17 May 2005 addressed to the Attorney-General regarding the above. Your letter was redirected to me for my response, and was received on 31 May 2005.

The House Contracts Guarantee (Amendment) Bill 2005 provides for the whole of the Act to commence on the “appointed day” which is defined as the date on which the Act is to be proclaimed, with a default date of 1 July 2007.

It is proposed that the transfer occur in an orderly fashion at a time acceptable to both the Housing Guarantee Fund Limited ("HGFL") and the Victorian Managed Insurance Authority ("VMIA"). Prior to the transfer, HGFL will need to settle its final accounts for a final audit, and VMIA will need to perform a due diligence investigation of HGFL's financial assets and liabilities.

It is anticipated that the parties will be able to complete these processes in time for the transfer to take place in late 2005 or early 2006. However, neither party is able to guarantee this timing because of unforeseen circumstances.

Therefore, in order to ensure that both entities have sufficient time to complete the tasks, and also to ensure that any unforseen contingencies prior to the transfer could also be dealt with by either entity, a final date of 1 July 2007 was chosen.

This was selected balancing the need to ensure that the transfer does occur, with the need to ensure that the transfer is not premature or disorderly.

If therefore, the transfer does not occur in the 2005-06 financial year, it must occur in the 2006-07 financial year.


28

Please do not hesitate to contact me if you have any further queries. The departmental contact is Ms Malvena Braw who can be contacted on 9627 6087.

MARSHA THOMSON MP Minister for Consumer Affairs

17 June 2005



29

Racing and Gaming (Police Powers) Bill

The Bill was introduced into the Legislative Assembly on 17 May 2005, by Mr John Pandazopoulos MLA. The Committee considered the Bill on 30 May 2005 and made the following comments in Alert Digest No. 7 of 2005 tabled in the Parliament on 14 June 2005.


[12]

The Committee reports to Parliament pursuant to a term of reference provided in section 17(a)(vi) of the Parliamentary Committees Act 2003 – ‘makes rights, freedoms or obligations dependent upon non-reviewable administrative decisions’

1. Casino Control Act 1991

The Committee notes that the provisions in the Act currently provide powers to prohibit persons entry to certain racing and gaming venues by means of an exclusion order issued by a casino operator, the Commission or the Chief Commissioner of Police (respectively sections 72 and 74).

The Committee further notes that the Act provides for an appeal to the Commission from a decision of a casino operator or a single Commissioner of the Victorian Commission for Gambling Regulation (s.73) and that no appeal lies from a decision of the Chief Commissioner of Police (s.74).

The Committee will seek further information from the Minister for the policy reasons for not providing an appeal against such a decision.

2. Racing Act 1958

The Committee notes that the exclusion powers by the Chief Commissioner in this Act are new powers (new Division 5 of Part 1).

The Committee will seek further information from the Minister for the policy reasons for not providing an appeal against such a decision.

Pending the response of the Minister the Committee draws attention to the provisions.


I refer to your letter of 14 June 2005 in relation to the Racing and Gaming (Police Powers) Bill currently before Parliament. In your letter you expressed concerns on behalf of the Scrutiny of Acts and Regulations Committee (SARC) in relation to clauses 4 and 8 in respect to exclusion orders by the Chief Commissioner of Police.

In particular the Committee has sought further information about the policy reasons for not providing an appeal against a decision of the Chief Commissioner of Police to issue an exclusion order under the Casino Control Act 1991 or the Racing Act 1958.


30

The Racing and Gaming (Police Powers) Bill:

• Expands the scope of exclusion orders that can be issued by the Chief Commissioner of Police under the Casino Control Act 1991 so that they can apply to the entire casino complex; and

• Amends the Racing Act 1958 to enable the Chief Commissioner of Police to issue exclusion orders with respect to race-courses.

Under the provision in the Bill, the Chief Commissioner of Police may only issue an exclusion order if he or she considers it to be necessary in the public interest. This is a new criterion that does not currently apply to the issue of an exclusion order under the Casino Control Act 1991.

As noted by the Committee, the Casino Control Act 1991 currently makes no specific provision for an appeal against a decision of the Chief Commissioner of Police to issue an exclusion order under section 74 of the Casino Control Act 1991.

During the preparation of the Bill, the current provisions were reviewed and consideration was given to the most appropriate form of appeal against a decision of the Chief Commissioner of Police.

It was not considered appropriate that a decision made by the Chief Commissioner of Police to issue an exclusion order be subject to review by the Victorian Commission for Gambling Regulation, particularly as the Commission has no responsibilities under the Racing Act 1958.

Further, given the nature of the power to be exercised by the Chief Commissioner of Police and the criterion on which its exercise is to be based, it was concluded that judicial review would be the most appropriate form of review. The Bill in no way restricts a person’s right to apply for review of a decision of the Chief Commissioner of Police in the Supreme Court of Victoria.

JOHN PANDAZOPOULOS MP Minister for Gaming

27 July 2005



31

State Taxation Acts (General Amendment) Bill

The Bill was introduced into the Legislative Assembly on 24 May 2005 by the Hon. John Brumby MLA. The Committee considered the Bill on 30 May 2005 and made the following comments in Alert Digest No. 7 of 2005 tabled in the Parliament on 14 June 2005.


[2]

Retrospective provisions

The Committee notes that the retrospective provisions in the Bill (other than clause 13) provide certain exemptions from liability to pay duty or tax and are therefore of a beneficial nature to taxpayers.

In respect to the retrospective application of clause 13 which deletes certain words in section 71 of the Duties Act 2000 the Committee is of the opinion that the amendment corrects a drafting error and is retrospective to the commencement of the original section as substituted on 13 May 2004 (Act No. 46/2004).

The Committee will seek further advice from the Treasurer whether any person may be adversely effected by the retrospective operation of clause 13 amending section 71(1) of the Duties Act 2000.

Pending the Treasurer’s response the Committee draws attention to the provision.


Thank you for your letter dated 14 June 2005 concerning section 13 of the above Act that amends the definition of “landholder” in the Duties Act 2000 (Duties Act) with effect from 13 May 2004.

I understand that you seek advice from me as to whether “any person may be adversely effected by the retrospective operation of clause 13”. There has been particular concern raised in a number of forums, including during debate of this Act, that the enactment of this clause in particular affects a transaction involving an interest in the Queen Victoria (Development) site (the QV matter).

The Government accepted the view that the amendment should be backdated to the commencement of the revised land-rich provisions, and that to do so would not offend the general undesirability of retrospective amendment of taxation laws, and the desire that taxpayers have a degree of certainty when it comes to their taxation liabilities.

A key consideration that persuaded me that the backdated amendment was justified was the wide range of commentary on the relevant provision, all of which reads the laws as if it worked as intended. This is not a situation that can be properly characterised as one where the Government has changed the taxation regime contrary to either the parliamentary intention or to the manner in which the advising community interprets the laws. The amendment merely works to confirm the clear Parliamentary intention and accepted professional understanding as to its meaning.

In the particular case of the QV matter I am advised by the Commissioner of State Revenue that, notwithstanding the amendment, it was arguable that the transaction


32

entered into was dutiable. Assuming that this view is sound, then no person is adversely affected by the retrospective operation of section 13 of the above Act.

JOHN BRUMBY MP Treasurer

Received 20 July 2005



33

Statute Law Revision Bill

The Bill was introduced into the Legislative Council on 26 February 2003, by Mr John Lenders MLC. The Committee considered the Bill on 21 February 2005 and made the following comments in the Report on the Statute Law Revision Bill tabled in the Parliament on 22 February 2005.


The Committee notes the unproclaimed Acts listed in Appendix 2.

The Committee will write to the Premier to request further information why the Acts listed in the Appendix remain unproclaimed or unrepealed.

Pending the Attorney-General’s response the Committee draws attention to the unproclaimed Acts.


Miners’ Phthisis Act 1936

I am writing in relation to your letter to the Treasurer, dated 22 March 2005, requesting information about the intended future operation of the Miners’ Phthisis Act 1936 and advice as to whether the Committee should recommend the repeal of the Act in the next Statute Law Revision Bill.

I have recently been entrusted with the task of managing an extensive review of legislation administered by the Treasurer. As a result of work to date, we expect to be able to recommend to the Treasurer that the unproclaimed Miners’ Phthisis Act 1936 does not need to be retained and can be repealed.

The review of legislation administered by the Treasurer is expected to result in legislation repealing and amending redundant or superseded legislation. This legislation may be included in the Spring 2005 legislative programmed. The Miners’ Phthisis Act 1936 could be repealed through this initiative or in the next Statute Law Revision Bill.

I would appreciate your comments as to which Bill you consider preferable. I should observe that we would certainly not want this Act to be unrepealed at the time when the Treasurer’s Act passed. If you would like to discuss this matter further or to obtain additional information on the Act and potential repeal processes, please contact Dr. Nick Fischer, of my office, on 9651 5674.

Ian H. Gibson Solicitor to Treasury and Finance

8 April 2005

The Committee thanks the Department for this response.


34

Adoption (Amendment) Act 1991

The Attorney-General has asked me to reply to your letter of 22 March 2005, seeking advice about the Adoption (Amendment) Act 1991 which passed in 1991 and has not yet been proclaimed.

The Committee seeks some indication about the intended future of this Act. By way of background, the Act was prepared to clarify issues around the Commonwealth Government’s delegation of powers of guardianship over non-citizen children brought into Australia for the purposes of adoption. This Act was intended to be proclaimed when corresponding legislation had been made in all Australian States and Territories.

Subsequent resolution of the issues and the ratification of the Hague Convention on the Protection of Children and Cooperation in respect of Intercountry Adoption, together with amendment of relevant provisions of the Adoption Act 1984 by Act No. 46 of 1998, mean this Act now does not require proclamation.

I advise that it is not intended to proclaim this Act, and that it is appropriate for the Act to be repealed in the next Statute Law Revision Bill.

Hon. Sherryl Garbutt MP Minister for Children Minister for Community Services

19 July 2005



35

Victoria State Emergency Services Bill

The Bill was introduced into the Legislative Assembly on 24 May 2005, by the Hon. Tim Holding MLA. The Committee considered the Bill on 30 May 2005 and made the following comments in Alert Digest No. 7 of 2005 tabled in the Parliament on 14 June 2005.


[27]

The Committee reports to Parliament pursuant to a term of reference provided in section 17(a)(ii) of the Parliamentary Committees Act 2003 – ‘makes rights, freedoms or obligations dependent upon insufficiently defined administrative powers’

The Committee notes the wide delegation powers in clauses 26 and 27 ‘to any person’ and will seek further information from the Minister in respect to the necessity or desirability to include such a delegation power in the Bill.

Pending the Minister’s response the Committee draws attention to the provision.


Thank you for your letter of 14 June 2005 regarding the Victorian State Emergency Services Bill (the Bill).

In relation to the Committee’s request for advice regarding the necessity of desirability of the delegation powers in clauses 26 and 27, I note the following matters.

Clause 26 provides for delegation powers of the Chief Executive Officer. It states that:

The Chief Executive Officer may, by instrument delegate to any person by name or to the holder of any office or position approved by the Authority, any responsibility, power, authority, duty or junction conferred on the Chief Executive Officer under this Act or the regulations, except this power of delegation.

The broad delegation powers are intentional, in order to meet operational needs. The emergency environment in which the Victoria State Emergency Service (VicSES) operates, makes it difficult to predict the powers which may need to be delegated. Clause 26 confers delegation powers on the Chief Executive Officer under section 30 of the Metropolitan Fire Brigades Act 1958 and section 16C of the Country Fire Authority Act 1958.

This is in accordance with the aim of achieving structural parity across all three of these emergency response services. This objective of aligning VicSES with the organisational structure of the fire services was noted in the Second Reading Speech.

The Chief Executive Officer is responsible to the Board for the carrying out of the Authority’s functions, under clause 24(3). This provides an accountability mechanism in respect of the Chief Executive Officer’s powers.

Clause 27 provides for the delegation powers of the Minister. It states that:


36

The Minister may by instrument delegate to any person any power or function of the Minister under this Act other than this power of delegation.

The scope of these delegation powers is based on the delegation powers conferred on the Minister under section 30A of the Victoria State Emergency Services Act 1987. I note that the Authority is subject to the general direction and control of the Minister in the performance of its functions and exercise of its powers under clause 8 of the Bill. There is a wide range of circumstances in which delegation may potentially be required.

I trust that this addresses the Committee’s concerns.

TIM HOLDING MP Minister for Police and Emergency Services

20 July 2005


Committee Room 8 August 2005

37

Appendix 1 Index o f B i l l s in 2005

Alert Digest No.

Accident Compensation (Amendment) Bill....................................................................... 7, 9 Accident Compensation and Transport Accident Acts (Ombudsman) Bill ........................... 7 Accident Compensation (Further Amendment) Bill.............................................................. 9 Appropriation (Parliament 2005/2006) Bill........................................................................... 6 Casino Control (Amendment) Bill......................................................................................... 9 Channel Deepening (Facilitation) Bill ................................................................................... 1 Charities (Amendment) Bill................................................................................................... 3 Children and Young Persons (Miscellaneous Amendments) Bill ......................................... 5 City of Melbourne (Amendment) Bill ................................................................................... 5 Classification (Publications, Films and Computer Games) (Enforcement) (Amendment) Bill .................................................................................................................. 3 Commonwealth Games Arrangements (Miscellaneous Amendments) Bill ...................... 5, 9 Corrections (Transition Centres and Custodial Community Permits) Bill ............................ 1 Courts Legislation (Judicial Conduct) Bill ............................................................................ 3 Courts Legislation (Judicial Pensions) Bill ........................................................................... 5 Courts Legislation (Miscellaneous Amendments) Bill.......................................................... 7 Dangerous Goods and Equipment (Public Safety) Acts (Amendment) Bill.......................... 7 Electoral Legislation (Further Amendment) Bill ................................................................... 5 Emergency Services Superannuation (Amendment) Bill ...................................................... 6 Energy Legislation (Miscellaneous Amendments) Bill ......................................................... 6 Energy Safe Victoria Bill....................................................................................................... 7 Environment and Water Legislation (Miscellaneous Amendments) Bill .............................. 7 Fisheries (Abalone) Bill......................................................................................................... 6 Gabling Regulation (Public Lottery Licences) Bill ............................................................... 6 Geothermal Energy Resources Bill........................................................................................ 1 Health (Compulsory Testing Bill........................................................................................... 3 Health Legislation (Miscellaneous Amendments) Bill.......................................................... 7 Higher Education Acts (Amendment) Bill ............................................................................ 5 House Contracts Guarantee (Amendment) Bill ................................................................. 6, 9 Housing (Housing Agencies) Bill.......................................................................................... 1 Justice Legislation (Amendment) Bill ................................................................................... 4 Land (Miscellaneous Matters) Bill ........................................................................................ 7 Land (Revocation of Reservations) Bill ................................................................................ 4 Legal Profession (Consequential Amendments) Bill............................................................. 3 Local Government (Amendment) Bill ................................................................................... 5 Long Service Leave (Amendment) Bill................................................................................. 5 Magistrates’ Court (Judicial Registrars and Court Rules) Bill .............................................. 5 Major Crime (Investigative Powers) Bill............................................................................... 1 Melbourne College of Divinity (Amendment) Bill ............................................................... 7 Mitcham-Frankston Project (Amendment) Bill ..................................................................... 3 National Electricity (Victoria) Bill ........................................................................................ 3 National Parks (Alpine National Park Grazing) Bill ............................................................. 7 National Parks (Otways and Other Amendments) Bill.......................................................... 8 National Parks (Point Nepean) Bill ....................................................................................... 5


38

Occupational Health and Safety Bill ..................................................................................... 1 Outworkers (Improved Protection)(Amendment) Bill........................................................... 3 Owner Drivers and Forestry Contractors Bill .................................................................... 5, 7 Parliamentary Administration Bill..................................................................................... 4, 7 Planning and Environment (Williamstown Shipyard) Bill .................................................... 7 Primary Industries Acts (Amendment) Bill ........................................................................... 6 Public Administration Bill ..................................................................................................... 1 Racing and Gambling Acts (Amendment) Bill...................................................................... 7 Racing and Gaming Acts (Police Powers) Bill.................................................................. 7, 9 Residential Tenancies (Further Amendment) Bill ................................................................. 9 Retirement Villages (Amendment) Bill ................................................................................. 1 Road Safety (Further Amendment) Bill................................................................................. 6 Safety on Public Land Bill..................................................................................................... 1 Sentencing (Further Amendment) Bill .................................................................................. 4 Serious Sex Offenders Monitoring Bill ................................................................................. 2 Sex Offenders Registration (Amendment) Bill...................................................................... 6 State Taxation Acts (General Amendment) Bill .................................................................... 7 Statute Law Revision Bill .................................................................................................. 1, 9 Tobacco (Amendment) Bill ................................................................................................... 6 Transport Legislation (Further Amendment)......................................................................... 6 Vagrancy (Repeal) and Summary Offences (Amendment) Bill ............................................ 9 Victorian Civil and Administrative Tribunal (Amendment) Bill........................................... 1 Victorian State Emergency Service Bill ............................................................................ 7, 9 Working with Children Bill ................................................................................................... 9

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Appendix 2 C o m m i t t e e C o m m e n t s c l a s s i f i e d

by Te rms o f Re fe rence

Alert Digest Nos. Section 17(a)

(i) trespasses unduly upon rights and freedoms

Accident Compensation (Amendment) Bill 7 National Parks (Otways and Other Amendments) Bill 8 Working with Children Bill 9 (ii) makes rights, freedoms or obligations dependent upon insufficiently defined administrative powers

Victoria State Emergency Service Bill 7 Working with Children Bill 9 (iii) makes rights, freedoms or obligations dependent upon non-reviewable administrative decisions

Racing and Gaming Acts (Police Powers) Bill 7 (vi) inappropriately delegates legislative power

Commonwealth Games Arrangements (Miscellaneous Amendments) Bill 5 House Contracts Guarantee (Amendment) Bill 6 National Parks (Otways and Other Amendments) Bill 8 Owner Drivers and Forestry Contractors Bill 5 Working with Children Bill 9 (vii) insufficiently subjects the exercise of legislative power to parliamentary scrutiny.

Accident Compensation (Amendment) Bill 7 Commonwealth Games Arrangements (Miscellaneous Amendments) Bill 5 Magistrates’ Court (Judicial Registrars and Court Rules) Bill 5 Vagrancy (Repeal) and Summary Offences (Amendment) Bill 9


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Section 17(b)

(i) and (ii) as to whether a Bill directly or indirectly repeals, alters or varies section of the Constitution Act 1975, or raises an issue as to the jurisdiction of the Supreme Court.

Channel Deepening (Facilitation) Bill 1 National Electricity (Victoria) Bill 3 Parliamentary Administration Bill 4 (iii) if a Bill does not repeal, alter or vary section 85 of the Constitution Act 1975, but an issue is raised as to the jurisdiction of the Supreme Court, as to the full implications of that issue.

Commonwealth Games Arrangements (Miscellaneous Amendments) Bill 5 Owner Drivers and Forestry Contractors Bill 5 Transport Legislation (Further Amendment) Bill 6

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Appendix 3 Min is ter ia l Cor respondence

Table of correspondence between the Committee and Ministers during 2005

Bill Title Minister/ Member Date of Committee

Letter

Date of Minister's Response

Issue Raised in Alert Digest

No.

Response Published in

Alert Digest No.

Victorian Civil and Administrative Tribunal (Amendment) Bill

Planning 24.8.04 25.1.05 6 of 2004 1 of 2005

Major Crime (Investigative Powers) Bill Police and Emergency Services 3.11.04 24.1.05 9 of 2004 1 of 2005 Housing (Housing Agencies) Bill Housing 30.11.04 2.12.04 11 of 2004 1 of 2005 Occupational Health and Safety Bill Work Cover 30.11.04 3.12.05 11 of 2004 1 of 2005 Public Administration Bill Premier 30.11.04 21.12.04 11 of 2004 1 of 2005 Public Administration Bill* Premier 8.12.04 11 of 2004 1 of 2005 Safety on Public Land Bill Environment 30.11.04 10.1.05 11 of 2004 1 of 2005 Parliamentary Administration Bill Premier 20.4.05 17.5.05 4 of 2005 7 of 2005 Commonwealth Games Arrangements (Miscellaneous Amendments) Bill

Commonwealth Games 3.5.05 21.6.05 5 of 2005 9 of 2005

Magistrates’ Court (Judicial Registrars and Court Rules) Bill

Attorney-General 3.5.05 5 of 2005

Owner Drivers and Forestry Contractors Bill Industrial Relations 3.5.05 19.5.05 5 of 2005 7 of 2005 House Contracts Guarantee (Amendment) Bill Attorney-General 17.5.05 17.6.05 6 of 2005 9 of 2005 Road Safety (Further Amendment) Bill Transport 23.5.05 6 of 2005 Accident Compensation (Amendment) Bill WorkCover 14.6.05 20.6.05 7 of 2005 9 of 2005 Racing and Gaming (Police Powers) Bill Gaming 14.6.05 27.7.05 7 of 2005 9 of 2005

* Premier’s response to issue raised by minority opinion.


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Bill Title Minister/ Member Date of Committee

Letter

Date of Minister's Response

Issue Raised in Alert Digest

No.

Response Published in

Alert Digest No.

State Taxation Acts (General Amendment) Bill Treasurer 14.6.05 20.7.05 7 of 2005 9 of 2005 Victoria State Emergency Service Bill Police and Emergency Services 14.6.05 20.7.05 7 of 2005 9 of 2005 National Parks (Otways and Other Amendments) Bill Environment 13.6.05 8 of 2005

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Appendix 4 Submiss ions to the Work ing

wi th Ch i ld ren B i l l

Office of the Victorian Privacy Commissioner

Review of proposed legislation (SARC)

LR01-2005, 8 August 2005

SUBMISSION TO THE VICTORIAN PARLIAMENT’S SCRUTINY OF ACTS AND REGULATIONS COMMITTEE IN RELATION TO THE

WORKING WITH CHILDREN BILL

In summary,

The Privacy Commissioner submits that the Working with Children Bill 2005 unduly requires or authorises acts or practices that may have an adverse effect on personal privacy within the meaning of the Information Privacy Act 2000: section 4D(a)(iiia) Parliamentary Committees Act 1968. This conclusion is based on a combination of factors:

• The large number of people who will be required, on pain of criminal penalty, to get government approval before working with children,

• the wide range of offences and circumstances giving rise to a negative, or interim negative, assessment notice that will mean, and will be taken by the community to mean, that the person the subject of such a notice is considered an unjustifiable risk to the safety of children in relation to sex, violence, drugs or pornography,

• retrospectively, and in some cases contrary to reasonable expectations,

• by an insufficiently qualified and independent entity,

• on the basis of information of uneven quality,

• by methods with inadequate information security,

• without enough oversight,

having regard to the significance of other interests to be balanced, in particular individuals’ reputation and livelihood, relationships and community cohesion, especially through volunteerism.

A more subtle scheme – based on discretion and independently operated, with more detailed oversight – would reduce the adverse effects.

The Privacy Commissioner’s detailed comments, related to the specific clauses of the Bill, follow.


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I. Assessment of the Bill for undue adverse privacy impact

1. Protecting children from harm is a legitimate aim that justifies adverse effects on the privacy of individuals.

2. Assessing whether the Bill has adverse effects on privacy that are undue requires an examination of whether the proposed legislative scheme is:

a. necessary, having regard to evidence, experience or other indicators that suggest that those persons who will be required to submit to the checks pose some risk of harm to children;

b. proportionate, so that the scope and effects of the proposed scheme are tailored according to the risk to children that individuals can be reasonably believed to pose, and so that the information flows are tailored to what is relevant to assessing their suitability and to giving effect to the assessment;

c. effective, bearing in mind that the proposed scheme may be considered an unwarranted intrusion into privacy - with harmful effects on reputation, livelihood, relationships and community cohesion - if the scheme cannot be shown to be effective in its legitimate aim of protecting children; and

d. contains sufficient safeguards, to ensure oversight and accountability.

II. The large number of people who will be required – on pain of criminal penalty – to get government approval before working with children

3. This Bill differs from the Exposure Draft in two ways relevant to the number of people affected:

a. it exempts:

(i) parents (clause 27), immediate family (clause 28) and children (clause 29) - separate legislation has been foreshadowed, see Second Reading Speech;

(ii) teachers (clause 30) and police (clause 31) – already covered by professional checking schemes;

(iii) overseas visitors (clause 32) – intended to be picked up by the Sex Offender Registration scheme;

b. it covers individuals whose contact with children (persons under 18) will be regular, direct and unsupervised (clause 9(1)), and limits the meaning of “direct contact” to direct, physical contact, rather than remote or electronic communication.

4. The scheme now covers fewer people than the original, but may still be regarded as disproportionate in that it will impose a check on many individuals who may reasonably believed to present less risk to children than some of those now excluded. Evidence suggests that children are most at risk of abuse from those in their close circle. Separate legislation has been foreshadowed in relation to child protection generally, and is likely to be directed in part at this most difficult aspect of protecting children. The point, for present purposes, is that the Bill for the Working with Children Check (WWCC) scheme now excludes the group who pose the greatest risk, and that is relevant to assessing whether the adverse effect of the scheme on those who remain covered by it is proportionate.

Appendix 4 – Submissions concerning the Working with Children Bill

45

5. With the large numbers of people affected, clarity becomes essential. Criminal penalties are involved. Public confidence in the administration of the scheme is essential if volunteerism is not to be deterred. Most of the people required to submit to a check will have no criminal record, and with good reason may feel some concern that a bureaucracy is now to judge their suitability to undertake that which they have been doing for years to the benefit of their own and other children in communities that know them well. Clarity increases confidence. Lack of clarity increases the likelihood of adverse effects. Examples:

a. Clause 9(3)(d) includes educational institutions within the scope of the WWCC. Registered teachers are already subject to the more stringent scheme established by the Victorian Institute of Teaching Act 2001 (VIT Act). Accordingly, to avoid requiring teachers to be checked twice, clause 30 exempts them from the WWCC scheme. However, the exemption does not extend to teachers with provisional registration or with permission to teach. They will apparently have to submit to both the VIT Act checks and the WWCC, with their different mandatory exclusions and review rights.

b. Clause 9(3)(h) includes sporting, recreational and other clubs within the WWCC scheme where their membership is “mainly comprised of children”. Does this mean that half the membership must be comprised of children, or more than half? If the membership ebbs and flows, do organisations risk falling in and out of compliance with the Bill? In the end, organisations may err on the side of caution (particularly in light of the criminal liability that attaches under clauses 33-36 for getting it wrong) and require their employees or staff or members to submit to a WWCC, whether or not one is required.

c. Clause 27 excludes parents where their child ordinarily participates in the activity. But the examples in the Bill would appear to indicate that, in practice, many parents will be unsure whether they require a check. In practice, parents who voluntarily coach their child’s team may often be involved in also coaching children in other teams in the same age-group or another age-group. Clause 9(1) includes overnight camps within the meaning of “child-related work”. The exemption for parents would seem to mean they are not required to be checked when accompanying on overnight camp a group that includes their own child.

III. The wide range of offences that could trigger an interim negative assessment that the person is not fit to work with children

6. The offences referred to in clause 12, which trigger mandatory exclusion, appear to be confined to child pornography offences and serious sex offences committed at any time as an adult against a child victim. The offences in clause 13, triggering presumptive exclusion, are much broader. They include sexual, violent, drug trafficking and child trafficking offences committed as an adult or a child, at any time, against an adult or a child victim.

7. It appears that these offences may encompass a wide range of circumstances, including less serious ones. For instance:

(i) situations such as consensual fondling between teenagers, one of whom is aged just under 16 and the other just over 18, contrary to the indecent act offence in s. 47 of the Crimes Act 1958 (Vic) – an offence that will not only result in a mandatory negative assessment under clause 12(1)(c), but may automatically result in the 18


46

year old being included on the Sex Offender Register,1 thereby triggering mandatory exclusion under clause 12(1)(a) of the Bill, as well as mandatory exclusion under Part 5 of the Sex Offender Registration Act; and

(ii) situations in which the parents of a girl aged 15 going on 16 knowingly allow the girl’s boyfriend aged 18 years to sleep with the girl in the family home, or situations in which the parents knowingly allow their 18-year-old son to have his 15-year-old girlfriend stay over. These situations may involve offences against s. 54 of the Crimes Act that may lead to the parent being automatically included on the Sex Offender Register, which similarly may trigger mandatory exclusion from working with children under clause 12(1)(a) of the Bill and the Sex Offender Registration Act.

8. Although the Bill now includes a review right to the Victorian Civil and Administrative Tribunal (VCAT) for all applicants, including those mandatorily excluded under clause 12, this review right is effectively unavailable for these types of scenarios, where the offence triggers inclusion on the Sex Offender Register (clause 26(6)) irrespective of the seriousness of the circumstances surrounding the offence and without judicial discretion.

9. Where the Categories set out in clauses 12 and 13 apply to a person, the scheme envisages a process for assessing applicants and for notifying an applicants’ employers of an interim negative assessment, apparently before the applicant has an opportunity to make submissions to the Secretary: clauses 16(1)(b) and 18. This process involves an adverse effect on privacy. It may result in lasting damage to the reputations, livelihoods and relationships of individuals, damage which may be disproportionate to the seriousness of their prior convictions (or unrecorded findings of guilt) and disproportionate to the risk they may pose to children.

10. In many cases, the facts behind a conviction or finding of guilt in the prescribed offences will require careful analysis and use of discretion to ensure that such harms, which are clearly foreseeable, only happen to people who pose a risk to children. It is to avert this risk that justifies the scheme’s adverse effects on people.

11. The mandatory nature of this aspect of the scheme (presumed interim negative assessment and notification requirement) implicitly puts an onus on a person at first instance to ‘prove’ to a bureaucracy (not a judicial or statutory officer) that he or she is not a danger to children. Rejection will, in effect, invite others who know the person, but not necessarily the facts, to draw the opposite conclusion. Notwithstanding the opportunity to appeal to VCAT, in practice this aspect of the scheme is likely to lead to serious adverse effects on privacy which, in my opinion, are undue.

IV. Retrospectively, and in some cases contrary to reasonable expectations (clauses 8, 12, 13)

12. Judicial discretion is an important element of ensuring balance between competing interests on the particular facts of a case. The scheme will operate retrospectively by requiring the Secretary to scrutinise a person’s prior criminal and disciplinary (or other2)

1 Committing an indecent assault against a child under 16 is a Class 2 offence in the Sex Offenders

Registration Act 2004 (Vic). A person convicted of this offence will be regarded as a registrable offender under s. 6(1), unless the offence was committed before 1 October 2004 (s. 6(4)) or was the only offence that resulted in a sentence and that sentence that did not carry a term of imprisonment or a requirement for supervision (s. 6(3)(c)).

2 The Bill allows other “finding of a prescribed kind” made by or on behalf of “a prescribed body” to be relied upon in the WWCC assessment (clause 14). Although the Second Reading Speech refers to these findings being disciplinary ones, and the bodies being professional registration boards who are bound by the rules of natural justice, the Bill does not impose any such limits.


47

history, irrespective of how long ago the matters to be considered happened. This may result in a person being banned from employment and community involvement where children are concerned. Fresh shame and potentially future suspicion will attach. Under the Bill, the prior history that may be considered will encompass findings of disciplinary bodies yet to be named and prescribed, bodies which may or may not have observed the rules of natural justice at the time of decision.

13. The prior history will include findings of guilt, including instances where the court that dealt with the matter at the time was satisfied that it should not record a conviction, having regard to the impact a conviction would have on a person’s employment prospects and social and economic well-being: s. 8, Sentencing Act). Individuals may have contested matters differently at the time had they known the impact the finding of guilt or disciplinary finding might have under a future WWCC scheme. Whether conducted internally by the Secretary’s delegate, or on appeal at VCAT, the WWCC scheme appears to require a person, in effect, to go through a ‘retrial’ of the circumstances that led to the result years before, and an examination of their behaviour in the intervening years, to determine whether they should now exclude them from working with children. Persons unwilling to go through such a process - but who pose no threat to children – may simply withdraw.3 For their own reasons, they may not wish to proceed with being assessed. (Given the delicacy of the subject matter, VCAT processes and the time and cost involved may be a deterrent in themselves.) This withdrawal will leave open to those who know the person has withdrawn, but who do not know any of the facts, the serious and mistaken inference that the person is a risk to children. Such adverse effects are undue.

V. By an insufficiently qualified and independent entity

14. The scheme confers significant powers on the Secretary of the Department of Justice (DOJ) and her delegates. See, for example, clauses 11, 16, 20 and 41 (information gathering powers); 13, 14 and 21 (assessing a person’s eligibility); and 15, 18, 23 and 42 (information disclosure powers). Unlike similar schemes in other jurisdictions, the Bill does not set out any of the requisite qualifications that a person ought to possess to make the very delicate judgments that the WWCC will entail.

15. Clauses 13(2) and 14(3) require assessments of risk that any Secretary (and her or his delegates, who will be accountable to the Secretary) are more likely than not to exercise discretions to exclude a person from working with children, notwithstanding the presumptions built into these clauses. It is a fact of life that Departments are nowadays highly sensitive to political and media implications of their decisions for Ministers. In the area of perceived risk to children, passions can run high, even - or especially - when all relevant facts are not necessarily known. Departments can be expected to err on the side of caution (meaning exclusion), a characteristic which in the context of the day-to-day operations of a WWCC scheme is likely to lead to injustices. The kinds of judgments about people that the WWCC scheme envisages require an arm’s length relationship between the decision-maker and the government of the day. Having regard to its potential impact on individuals and the community, the work of assessment case-by-case is more akin to the work of a court. A Departmental Secretary, or delegate, is insufficiently independent for the tasks the Bill envisages.

16. An independent statutory office, responsible through a Minister to Parliament or direct to Parliament, suitably equipped for the task, should administer the WWCC scheme with maximum possible transparency. The current structure under the Bill is a factor contributing to the conclusion that its adverse effects are undue.

3 But even then, the Secretary is required by clause 15(3) to notify any employer or organisation of

the fact of that withdrawal.


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VI. On the basis of information of uneven quality

17. Several clauses – for example, clauses 11, 16, 20 and 41 – envisage the collection and handling of significant amounts of sensitive information. This will include information collected despite of a duty of confidentiality: clause 11(3). The information may be used to deny a person government authorisation to work with children, a result from which many people will infer the worst about the unsuccessful applicant. Namely, that he or she is a potential child abuser and possibly a convicted one. To avoid this damaging inference, some applicants may be forced to disclose4 to family, employer or club the actual details of their past convictions or findings of guilt involving matters which, although not child abuse, may be harmful in two senses. First, the circumstances may be embarrassing and relate to a long ago period of their life. Second, the forced re-telling will for some raise the issue of why they had not disclosed before to those close to them, and this may have effects on relationships. These results are foreseeable when the information relied on by the WWCC scheme is accurate. Harm may be compounded if the information is inaccurate.

18. It is the experience of this Office that the quality – accuracy, timeliness, completeness – of personal information held by government organisations needs to be checked before significant decisions potentially adversely affecting individuals are made. (Information Privacy Principle 3 of Schedule 1 of the Information Privacy Act 2000 deals with data quality. Obligations on organisations to give notice when they collect personal information (IPP 1.3, IPP5), and to give access or to correct information (FoI Act and IPP6) are elements of most data protection schemes aimed at improving the quality of personal information in government hands.) To illustrate the data quality issue in context: if name or contact address are unreliable, the wrong person may receive an interim negative assessment notice – see, for example, clause 18 - with all the adverse inferences that those who learn of it may draw about the recipient. Alternatively, the right person may get their interim negative assessment notice, but it may be negative because the data it is based on is wrong. That person is also likely to suffer harm.

19. The Bill authorises the Secretary to collect information from any person or source, requires this information to be held confidentially (clause 40), but imposes no express detailed requirements for data quality checks. Having regard to the sensitivities involved in this scheme, the adverse effects that may result are undue.

VII. By methods with inadequate information security

20. Information security (IPP4) will be at a premium in any WWCC scheme, having regard to: the number of people affected; the data quality issues; and the potential impact on a person’s reputation and relationships of the inferences that are likely to be drawn about an interim negative assessment, a negative assessment or withdrawal from the assessment process.

21. Clause 46 sets out the methods for giving notice of interim negative and negative assessments to applicants and to anyone engaging or proposing to engage them to work with children. The methods include personal delivery, or “leaving it at the person’s usual or last known place of residence or business with a person apparently over the age of 16 years and apparently residing there or (in the case of a place of business) apparently in charge of, or employed at that place; or by sending it by post addressed to the person’s at the person’s usual or last known place of residence or business”.

4 This is in addition to the mandatory disclosure requirements in clauses 20 and 22, requiring

applicants to notify their employers and other organisations of that fact that their circumstances have changed (eg, they were charged with a relevant offence or a relevant finding was made against them) and of the fact that they received and interim or negative assessment notice.


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22. Problems commonly occur with ensuring that any notice is precisely delivered to the intended recipient. The methods in clause 46 are not commensurate with the sensitivity of the information to be communicated and the foreseeable harms that may occur from such notices being obtained by persons other than the intended recipient. This aspect of the scheme contributes to the conclusion that the adverse effects on privacy are undue.

VIII. Without enough oversight

23. As noted, the WWCC scheme affects hundreds of thousands of people, deals in sensitive information, contains the potential for serious harms and will be a new and recurring cost. As the scheme develops, large holdings of sensitive information are likely to be created. How that data may be used and disclosed will be an issue of importance. In the field of assessing risks to children, the prospect of vigilantism arises. The Bill has the potential to authorise acts or practices that could lead to the creation of a source of information about people who have received an interim negative, or negative, assessment notice. The potential exists in the mandatory notification provisions requiring the Secretary to keep employers and other organisations apprised of a child-related worker or volunteers’ assessment status (clauses 18 and 23(5)), and in the obligation imposed on employers and others to satisfy themselves that they do not engage persons who do not have a positive assessment notice (clauses 35 and 36). For persons to satisfy themselves that an individual has been assessed as not unsuitable to work with children, they will presumably need to be able to verify that any assessment notice the person presents is genuine. The implication is that a register or database will be available to allow verification. If such a source contained information about interim negative or negative assessment notices issues to identifiable persons, the source would require high security and detailed oversight. In appropriate access, use and disclosure could have very serious effects, particularly if they occurred in bulk. Experience with the Victoria Police LEAP database and the less sensitive but still significant VicRoads database underscores the importance of external oversight.

24. Oversight by generic schemes such as those under the Information Privacy Act 2000 and Ombudsman Act 1973 will apply to the WWCC scheme. The Second Reading Speech refers also to oversight by the Child Safety Commissioner and a commitment to a review of the scheme after three years of operation. The Bill lacks detail and that lack is an element in the conclusion that the adverse effects on privacy are undue.

PAUL CHADWICK Victorian Privacy Commissioner

8 August 2005


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Victoria Legal Aid

4 August 2005

Ms Lily D'Ambrosio MLA Chair Scrutiny of Acts and Regulations Committee Level 8, 35 Spring Street MELBOURNE VIC 3000

Dear Ms D’Ambrosio

Working with Children Bill 2005

I refer to the Working with Children Bill 2005, which had its second reading in the Legislative Assembly on 21 July 2005.

Victoria Legal Aid raised a number of concerns about the exposure draft of the Bill during consultation by the Department of Justice. Although significant amendments have been made since then, VLA remains concerned that some aspects of the Bill may unduly trespass on rights or freedoms. I enclose VLA’s comments about the circulation print of the Bill for your consideration.

If you would like to discuss any of our comments please contact me on 9269-0244 or Tonye Lee (Policy Officer) on 9269-0246.

Yours faithfully

TONY PARSONS Managing Director enc


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1. Victoria Legal Aid’s criminal law clients

Victoria Legal Aid is the state’s largest criminal law practice, employing 130 lawyers who practise criminal law from our fourteen offices in metropolitan and rural Victoria. In 2003-04 we provided the following services to our criminal law clients:

• Multilingual telephone information services

• Face-to-face legal advice at our offices and at most of Victoria’s prisons

• 37,629 duty lawyer services at the Magistrates’ Court

• Legal representation in 7,518 cases.

VLA’s Youth Legal Service provide advice and representation to children and young people aged six to seventeen years, primarily in the criminal and family divisions of the Children's Court at Melbourne and around the metropolitan region. The service is made up of 13 legal staff and two in-house counsel. In 2003-04 the Youth Legal Service provided legal representation in 1,473 cases and gave legal advice in a further 967 matters.

2. Improvements to the Working with Children scheme

VLA acknowledges that significant improvements have been made to the scheme, in response to concerns raised by VLA and other stakeholders during the consultation period. These improvements include:

• annual review of the operation of the scheme by the Child Safety Commissioner

• review of the operation of the scheme by the Government after three years

• free checks for volunteers

• narrower definition of ‘child-related work’ (so that it covers only work involving direct contact that is not directly supervised) in sections 3 and 9

• clearer rules about interstate workers in sections 3 and 32

• complete exemption for children aged 14-17 in s.29(1)

• partial exemption for students aged 18-19 in s.29(2)

• increased discretion for sexual offences and child pornography offences committed during childhood in s.13(1)(a)

• requirement to consider the sentence imposed and whether a charge is still pending when exercising discretion in s.13(2)

• increased discretion for VCAT for refusals based on sexual offences and child pornography offences committed during childhood in sections 26(1)-(3)

• ability to rely on exemptions if the person had previously been refused a notice but subsequently received one in s.33(2)(b).

3. Concerns about the Working with Children Bill

Despite the above improvements, VLA remains concerned about some aspects of the Bill. We believe that some sections of the Bill may directly or indirectly trespass unduly upon rights or freedoms. We ask the Committee to consider the following issues under s.17(a) of the Parliamentary Committees Act 2003:


52

3.1 Definition of finding of guilt (s.4)

A ‘finding of guilt’ will not include a finding that is subsequently quashed or set aside by a court. We suggest the definition should be amended to also exclude findings that have been pardoned.

3.2 Definition of child-related (s.9(3))

The reference to ‘child protection services’ in s.9(3)(a) is ambiguous. It is unclear whether this includes:

• lawyers representing a child; or

• medical practitioners, psychologists or other experts involved in preparing forensic reports.

in child protection proceedings in the Children's Court.

The reference to ‘support services for children’ in s.9(3)(n) is ambiguous. It is unclear whether this includes:

• duty lawyers

• legal advice services.

If legal service providers and expert witness are required to have checks, then the Bill should be amended to make this clear. However, we are concerned that this may restrict children’s access to justice, by limiting VLA’s ability to:

• employ in-house lawyers or engage private practitioners to provide legal advice, duty lawyer services and legally assisted representation to children, as the new provisions may act as a disincentive.

• engage expert witnesses in Children’s Court proceedings.

3.3 Categorisation of offences (sections 12-14)

The purpose of the Bill under s.1(1) is protecting children from sexual and physical harm. Therefore, it should only cover prior offences against children or prior offences that specifically indicate a risk to children.

Category one sexual offences (s.12)

Clause 1 Schedule 1 of the Sentencing Act is not confined to such offences. Given that offences in this category result in a mandatory negative assessment, we do not believe that all clause 1 offences should be incorporated. We suggest that each offence should be reconsidered individually in the context of the policy objectives of the Bill. It may be appropriate for some offences to be moved to category two.

Category two violent offences (s.13)

Clause 2 Schedule 1 of the Sentencing Act is not confined to violent offences that involve actual injury. Given that offences in this category result in a presumption against issuing a notice, we do not believe that all clause 2 offences should be incorporated. We suggest that offences that do not involve actual injury should be excluded from category two. For example: threats to kill; threats to inflict serious injury; conspiracy and incitement to commit relevant offences. It may be appropriate for some offences to be moved to category three.


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3.4 Pending charges (s.13(1)(g) and 14(1)(c))

Where a person has a charge pending for selected category 1, 2 or 3 offences, the Secretary must issue a negative notice, unless she considers that granting the notice will not pose an unjustifiable risk to the safety of children.

It is a fundamental tenet of our criminal law that a person is presumed innocent until proven guilty. The issue of a negative notice effectively imposes:

• social penalties (by branding the person as ‘dangerous to children’) and

• financial penalties (by barring the person from child related work).

A substantial number of contested serious sex offences charges are not proven at trial. In 2003-04 there were approximately 1100 cleared rape offences but only 100 rape charges found proven.1 The harm that a person will suffer from a negative notice may not be remedied by a subsequent acquittal. It is unjust to allow the Secretary to impose such penalties before a person has been tried and found guilty.

The Bail Act 1977 contains a detailed system of checks and balances to ensure the safety of the community pending trial. Where a person facing relevant charges is released on bail, the Court has considered the evidence and formed the view that the defendant does not pose an unacceptable risk to the members of the public.2

We acknowledge that the Secretary will consider various criteria and that people facing charges will have the right to make submissions to the Secretary. However, the Secretary can consider ‘any other matter’ she considers relevant – the rules of evidence do not apply and there is no right to legal representation. It is inappropriate for the Secretary to ‘second guess’ the Court’s bail decision in these circumstances.

We suggest that the Secretary should not issue a negative notice where charges are pending. Alternatively, we suggest the Bill should be amended to require the Secretary to have regard to whether the person has been granted bail.

3.5 Consequences of withdrawing an application (s.15 (3))

If an applicant withdraws an application for a check before it has been determined, the Secretary must notify the employer or prospective employer that the application has been withdrawn. It is unclear why this requirement exists, when the Secretary is not required to notify the employer that an application has been lodged.

We expect that a common reason for withdrawing an application would be to avoid the stigma of a negative outcome. The person may prefer to resign from a job or transfer to different duties or withdraw a job application without giving reasons, rather than fail a check. If the Secretary tells the employer that the application has been withdrawn, the employer may draw negative inferences that could result in serious social and economic consequences for the person. We suggest this requirement should be removed. Further, once an application has been withdrawn, all records relating to the application should be deleted from the database for privacy reasons.

3.6 Interim negative notice (s.18)

If the Secretary is considering issuing a negative notice, she must issue an interim negative notice to the person. The person will have 28 days to make a submission to the Secretary. 1 Analysis of recent trends in the criminal justice system in Victoria, Department of Justice, September 2004 at pages

10-11. 2 s.4 Bail Act 1977


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The Secretary will notify the employer or prospective employer of the interim notice and it will be up to the individual employer to decide how to treat the person.

As noted in the discussion paper3, a negative notice will carry an unavoidable social stigma and may have significant effects on the person’s ability to get a job or on their conditions of employment. We believe that it is unjust to impose these consequences until the Secretary has considered the person’s submissions and has made a final decision.

We suggest that the Secretary should not notify the employer or prospective employer about the interim negative notice. Nor should the applicant be required to tell the employer or prospective employer about the interim notice.

3.7 No internal review of decisions (s.26)

A person who has received a negative notice may apply to VCAT for review of the decision. If the individual is dissatisfied with VCAT’s decision, they may apply to the Supreme Court.

VLA is concerned that the proposed avenue for review may be too expensive for some people. VCAT charges filing fees of $262.90 for most common applications. Legal representation at VCAT may cost up to $1040 for mediation plus $1490 if the matter proceeds to final hearing. VLA does not currently have sufficient resources to provide duty lawyers or grants of assistance for representation in these matters, so we expect that many litigants will appear unrepresented.

We suggest that prior to review by VCAT there should be a procedure for internal reconsideration and/or independent review, similar to the one used by VLA. The Legal Aid Act 1978 provides for internal reconsideration by a more senior VLA officer,4 and review by an independent reviewer (appointed by the Attorney-General).5

3.8 Appeals to VCAT on the basis of public interest (s.26(1)-(3))

VLA welcomes the increased discretion for VCAT to review refusals based on category 1 sexual offences and child pornography offences committed during childhood. However, VCAT may only direct the Secretary to grant a notice if it is satisfied that:

• giving the notice would not pose an unjustifiable risk to children; and

• in all the circumstances, it is in the public interest to do so.

It difficult to envisage how these tests could be applied in practice. It will be virtually impossible for any applicant to prove that they are ‘no risk’ to children. Presumably, the section intends that the applicant should be relatively ‘low risk’ to children. However, the applicant still has to demonstrate some other public interest that ‘justifies’ that remaining level of risk. The Bill should provide some clarification about what types of public interest would justify risking the safety of children.

3.9 Relevant activity for family exemption (s.27)

A parent working as a volunteer in relation to an activity in which the parent’s child ordinarily participates will be exempt. However, there is no definition of ‘activity’ and the examples do not clarify the position:

• Example 1 specifies that coaching the child's school football team is covered but coaching another football team in the same school is not covered.

3 Pages 21-22 Working with Children Discussion Paper, Department of Justice, December 2004. 4 s.34 Legal Aid Act 1978 5 s.35 and 18 Legal Aid Act 1978


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• Example 2 specifies that helping out in one event at the child’s school athletics carnival is covered even though the child is participating in a different event.

It is difficult to grasp the distinction between ‘same sport different team’ and ‘same carnival different sport’. Such fine distinctions do not accord with the realities of volunteer work – where roles tend to be imprecise and fluid.

The phrase ‘in relation to an activity’ should be defined widely to cover ancillary activities conducted by the same employer /agency.

3.10 Working while an appeal or re-application is pending (s.33(2)(a))

A person will not be prohibited from working with children while an application is pending, unless they have previously received a negative notice. People with negative notices can appeal to VCAT within 28 days or re-apply after 5 years.6

VLA notes that appeals and re-applications may take some time to finalise. Applicants with negative notices should not be penalised by delays during these procedures. We suggest that people should be allowed to work while an appeal or re-application is pending. However, if the Bill is passed in its current form, then we suggest that re-applications should be given priority and processed before initial applications (where people can work during the pending period).

3.11 Effect of negative notice on family exemptions (s.33(2)(b))

A person who has applied for a check and received a negative notice cannot rely on a family exemption7 (unless they subsequently re-apply and obtain a notice). However, a person who has not previously applied for a check can rely on an exemption. The decision to apply for a check may determine whether a person can ever participate in ordinary family life.

People who know they will not pass a check and understand the consequences of applying, can deliberately refrain from applying for an assessment. They will then be free to engage in exempted activities.

However, some people may not be able to accurately predict whether they will pass a check. Some people will not fully understand the consequences of failing a check. These people may unwittingly apply for a check and may then be barred for life from engaging in exempted activities.

People should not be ‘penalised’ for applying for a check. This may deter appropriate people from applying and provide an incentive for inappropriate people to attempt to work without a notice. We suggest that the current exemptions should apply regardless of whether the person has a negative notice. Alternatively, if the current proposal is adopted, we suggest that the exemption should apply once the negative notice expires (ie: after five years).8

3.12 Mens rea for offences (s.34)

VLA welcomes the inclusion of mens rea elements in sections 33(1)(b) and (c) for the offence of engaging in child-related work without an assessment notice. (ie: a person must know they are engaging in child-related work and must know that they do not have assessment notice or be reckless about whether they actually have an assessment notice).

6 Sections 26 and 19 Working with Children Bill 2005 7 Family exemptions are set at sections 27 and 28 Working with Children Bill 2005 8 s.19(1) Working with Children Bill 2005


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We suggest that both mens rea elements should also be included in the s.34 offence of applying for child-related work while holding a negative notice. (ie: the offence should also require knowledge or recklessness about the existence of a negative notice).

3.13 Confidentiality (s.40)

It was originally proposed that employers and prospective employers will be able to verify a person’s status on the database.9 Under s.40(2), the Bill now also seems to envisage that employers could provide information about a check to other people for the purposes of a reference check or employment related decisions.

VLA is very concerned about the privacy implications of this section. Many VLA clients are required by Centrelink to actively seek work. Prospective employers may include friends, family, neighbours and acquaintances - particularly in rural and regional areas. Access to the database and the dissemination of information by existing employers should be strictly controlled to protect the privacy of employees and potential employees. It is unclear how this Bill will interact with the Privacy Act 1988 (Cth) to achieve this.

Sections 63-66 and 70 of the Sex Offenders Registration Act 2004 contain some basic safeguards that could be adapted for use in this Bill. We also suggest that there should be an independent agency to handle complaints, monitor and audit compliance (such as the Victorian Ombudsman).

4. Concerns about implementation of the Working with Children scheme

VLA welcomes the establishment of a new unit within the Department of Justice to conduct the checks and to provide community education. We also welcome annual reviews of the operation of the scheme by the independent Child Safety Commissioner. VLA has a number of concerns about the practical implementation of the scheme in areas that are not directly covered by the Bill. These concerns include:

4.1 Prescribed fees for a paid work notice

VLA welcomes the decision to waive application fees for volunteers. However, people who already have a volunteer notice cannot rely on that notice for paid child-related work – it is an offence under s.37 to do so. A person who does any paid child-related work must pay the fee to be prescribed by regulations under s.49(4).

VLA is concerned that the expected fee of $70 for a check is too high.10 VLA’s clients are financially disadvantaged. In 2003-04 more than 90% of legal aid applicants were unemployed and 70% of applicants were receiving a government benefit. The current basic Newstart allowance for a single person with no children is $197.30 per week.11 A fee of $70 may preclude some VLA clients from applying for paid child-related work. We suggest that the fee should be waived for people whose primary source of income is a Centrelink benefit.

4.2 Advice about family exemptions (s.27 and s.28)

The very specific nature of the family exemptions and limitations on those exemptions may cause uncertainty (see also discussion at paragraph 3.9). Given the criminal liability that will arise from improperly engaging a person without a notice, we expect many employers will err on the side of caution and request a notice for all employees / volunteers. Alternatively, employers may ask for personal information to determine if a notice is required or draw adverse inferences about people who try to rely on an exemption. 9 Page 21 Working with Children Discussion Paper, Department of Justice, December 2004, 10 DoJ expected fee specified at www.justice.vic.gov.au/workingwithchildren 11 A Guide to Australian Government Payments (20/9/04-31/12/04) at page 10, Centrelink.


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Example

A man volunteers to coach his son’s school football team.

Scenario A: The school asks for a notice. The man applies for the check and fails it. He is permanently barred from coaching his son’s team.

Scenario B: The school asks for a notice. The man refuses to apply for the check because he is covered by an exemption. The school assumes that he has ‘something to hide’ and refuses to let him coach.

Scenario C: The school doesn’t ask for a notice but asks the man to fill out a questionnaire containing questions about the boy’s biological parentage, the status of the man’s relationship with the boy’s mother and custody arrangements. The school wants the information to determine whether the man falls within the ‘parent’ or ‘close relative’ exemptions.

We suggest that the Department of Justice should establish a telephone hotline where people can get on-the-spot advice about whether they are covered by an exemption. Reliance upon this advice should be a defence to any subsequent criminal charges.

5. Further information

For further information please contact:

Tonye Lee Policy Officer

Phone: 9269-0246 E-mail [email protected]

Alert Digest 9 of 2005 - Parliament of Victoria · i Table of Contents Page Nos. Alert Digest No. 9...

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