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Registration to Work with Vulnerable People Amendment Bill 2018

22 May 2019

Ms O'CONNOR (Clark - Leader of the Greens) - Mr Deputy Speaker, the Tasmanian Greens will be supporting the Working with Vulnerable People Amendment Bill 2014. It reflects the contemporary reality and certainly the move towards full rollout of the National Disability Insurance Scheme.

We know that Tasmania has, according to the ABS census data, the highest level of disability in the country. It also has the oldest and fastest ageing population in the country and the sector is projecting a worker shortfall over the next decade or so of around 10 000 people in Tasmania to work in those particular sectors. These are growth sectors in our society and economy and therefore it is extremely important that we get the registration regulatory framework around the kind of people we want working with not only children, but people living with disability, the frail and aged, people who are experiencing mental illness, homelessness or people from a culturally and linguistically diverse background. From my recollection, they are particular adult cohorts who are captured by the legislation as it rolls out.

In response to Ms Haddad's contribution, the short history of this legislation - and I know it intimately because I was the minister at the time and I introduced this legislation in 2013 - is that it was a matter of enduring shame on this island that we were the last jurisdiction to implement a working with children registration process, and for the first two ministerial councils I went to I had to sit there at the table and try to justify Tasmania's continued failure to enact this sort of registration scheme through the Tasmanian Parliament. I will be really honest with you, Mr Deputy Speaker, because I like the history to tell the truth, I struggled to get this legislation through Cabinet. It was not until the 2013 state Budget that I was finally able to secure the funds and the approval to bring this legislation into the Tasmanian Parliament.

It was a Greens minister who delivered this legislation in the first place and the fact that we were the laggards gave us an opportunity to look at best practice. The best practice at the time was the ACT legislation which had expanded on the working with children registration process to include other vulnerable people. So we went from being the worst in the country, the most recklessly irresponsible in relation to making sure that the kinds of people we allow to work with children are the best kind of people who are not going to harm children, to having best-practice legislation in place and at last an allocation of funding in order to implement this legislation. I thought it was important to place that on the record.

Vulnerability, as we know, comes in many forms. We can all agree that children are among the most vulnerable people in our community. Of course the reason this legislation was enacted in the form it was in 2013 was because the parliament ultimately recognised that there were other people who, through their circumstances or by birth, are made vulnerable. I acknowledge that these amendments are in part a reflection of the full rollout of the National Disability Insurance Scheme. If anyone doubts the critical importance of making sure that those who have the honour and privilege of working with vulnerable people in the disability sector must be people of the highest standard, I refer them to the 4 Corners report and other investigations that show rampant abuse of people living with disability in state- and private-run facilities around the country, just as there has been the neglect and abuse of older people in our community.

In relation to the abuse of people with disability, I am really proud to be part of the Greens where Senator Jordan Steele-John, who lives with a disability, was able to get through the Australian Parliament a royal commission into the lives of people living with a disability. We also have now in place a royal commission into aged care. What royal commissions enable us as a society to do is have a really thorough look at the situation, to have before a royal commission people with expertise and knowledge in those sectors who are required to tell the truth about the circumstances that the people in those sectors are facing.

Both the Australian Parliament and the Tasmanian Parliament have acknowledged that disability comes in many forms and the original legislation allowed for a staged rollout in order to capture those sectors where vulnerable people, made vulnerable by birth or circumstances or age, need caring for. It is an interesting word to use; it is an evolution in relation to the word 'vulnerable' because if you talk to someone living with a disability about that word, people can find it offensive and a bit insulting, as if it is part of a paternalistic state process. I hear that, but we are dealing with legislation that has the word in its title and we need to acknowledge that vulnerability can apply to both children and adults.

I just have a couple of questions for the minister. The principal act applied a risk-based analysis of each individual application that came forward for registration to work with children and, at the time, registration to work with other vulnerable people. It allowed for an individualised and tailored assessment of a particular application. I would have thought that the disqualifying offences, which are not fully detailed, but we can understand what they might be, would have been most certainly a part of an individual risk assessment for someone who had applied for registration. Obviously if an applicant has been convicted of child abuse, or neglect, or murder, or manslaughter, that would be a disqualifying offence through that tailored risk assessment process. I understand that it has been more closely prescribed now.

We know that the bill does not list the disqualifying offences, but it enables them to be listed by ministerial order. If the Attorney-General could provide some clarity to the House about when those disqualifying offences will be made by ministerial order and when they will be known, that would be quite helpful? Specifically, in relation to the legislation there is an amendment to section (4) of the principal act and the bill says:

Section 4 of the principal act is amended by omitting paragraph (b) from the definition of vulnerable person and substituting:

An adult in respect of whom a regulated activity is provided.

For the benefit of the House the principal act talks about: (a) a child; or (b) an adult accessing a regulated activity. Could the minister explain why it was felt necessary to make that change? In typical, legalistic way it does not go anywhere near what vulnerability actually is. I understand that we are dealing with the restrictions of law.

Minister, I am quoting the second reading speech to you now:

The bill includes a number of provisions to amend the Registration to Work with Vulnerable People Act so that the information gathered in our process can be shared with all other jurisdictions and create a national net to protect vulnerable persons.

The Greens support that. One of the issues raised with us, quite strongly, at the time I brought this legislation into the House in 2013, related to the privacy of persons who are seeking registration. From recollection what the principal act gave was a capacity for the assessment to look at matters that went beyond convictions. To look at matters that pointed to a particular type of behaviour, to examine charges that may have been laid but not led to a conviction. This raised some real tensions, I would have to say, with advocates for privacy, but also for civil liberties. It comes to the fore again when you go to the provisions in the legislation that:

The Registrar becomes aware that applicants have after the risk assessment process begun intentionally withdrawn their application in such times that they suspect they may be refused a registration to avoid their employer being notified and the amendments in this legislation provide that in such specified circumstances the employer will be notified that the applicant has withdrawn their application.

I understand that, but here is a scenario: a person with an otherwise clean record, who has lived a blameless life, has not knowingly caused harm to any other person may seek registration. As a result of the interview and questions that might have been asked, for example, about their drug history becomes scared about what that might mean for them in their employment and therefore withdraws their registration application. Can the minister understand that this particular provision takes the effect and potential intrusions of this legislation a reasonably significant step further than was the original intent of the act back in 2013? There may be circumstances where a person simply does not want their employer to know that they were busted with pot back in 1993. It sits somewhere on their record or not, but they have been asked a question about their drug taking and they felt they need to answer it honestly. They are concerned about how that might affect their employment.

I ask the minister to flesh that out a little bit. Also, to provide some reassurance that when any person applies for registration to work with either children or vulnerable people begins that assessment process, it is made really clear to them that should they withdraw from that assessment process their employer will be informed. It potentially has a really significant effect on someone's employment. It is potentially a very significant intrusion into someone's privacy. It is particularly those low-grade drug offences that I am pointing to here, offences that are not going to, in all likelihood, impact on that applicant's capacity to safely care for or work with children and other vulnerable people.

I do not know if the minister has consulted with Civil Liberties Tasmania or other privacy advocates about that provision. Has the minister consulted with the Law Society, the Bar Association about these provisions? Can the minister provide some reassurance that this particular provision in the legislation will not be abused or misused to the detriment of someone who in good faith makes an application to work with a child or other vulnerable people?

When this bill was first tabled I was surprised that we are still very slowly working through that process of implementing the registration to work with vulnerable adults. I would have thought that was in place, or being staged as part of the roll out earlier. It is now six years after the legislation was passed through both Houses of the Tasmanian Parliament. I have not made the time, minister, and I apologise, to go back to my original second reading speech to examine what commitments were made to the roll out of the 'working with vulnerable adults' parts of this legislation, but I think it has been rolled out slower than was the original intent. I am more than glad to be corrected.

Can the minister confirm that it is the intent, when we talk about a regulated activity, that those regulated activities will apply to not only people living with disability but people who are frail and aged, people who accessing homelessness services, people who are in mental health facilities, people from culturally and linguistically diverse backgrounds and any other cohort within our community who are regarded for the purposes of this legislation as vulnerable.

With those few comments, we do not see any need to go into Committee. We commend the agency for working through these amendments and the minister for bringing it on. We will be supporting the legislation.