Working with Children (Criminal Record Checking) Amendment Bill 2022 -  Second Reading speech presented in the Legislative Council (p. 4233a)
Bill No.81
17 Aug 2022
Referred to Standing Committee on Uniform Legislation and Statutes Review - 21 Sep 2022

Extract from Hansard [COUNCIL — Wednesday, 21 September 2022]

p4233a-4236a Hon Stephen Dawson



Receipt and First Reading

Bill received from the Assembly; and, on motion by Hon Stephen Dawson (Minister for Emergency Services), read a first time.

Second Reading

HON STEPHEN DAWSON (Mining and Pastoral — Minister for Emergency Services) [6.20 pm]: I move —

That the bill be now read a second time.

On behalf of Ms S.F. McGurk (Minister for Child Protection) I am pleased to introduce the Working with Children (Criminal Record Checking) Amendment Bill 2022 into the house today. The introduction of the bill is a critical milestone in delivering on the McGowan government’s commitment to implement the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse and will help keep children safe.

The Working with Children (Criminal Record Checking) Act 2004 provides Western Australia’s legislative framework for the screening and ongoing monitoring of persons who carry out, or propose to carry out, “child-related work” as defined in the act. In its Working with children checks report 2015, the royal commission made 36 recommendations to strengthen protections for children provided by working with children schemes in all jurisdictions. Broadly, the recommendations aim to improve national consistency in the circumstances in which an assessment should occur, the information that should be assessed, and the outcomes that should result, among other matters aimed at allowing for mutual recognition of outcomes across jurisdictions. The WA government accepted, or accepted in principle, all 35 recommendations relevant to WA. Nineteen of these recommendations require, or are associated with, some legislative change in WA. The remainder require no legislative change, as they address reporting and process issues only, or the act already meets the recommendation.

National standards for working with children checks were developed collaboratively by all jurisdictions in response to the Working with children checks report. In January 2019, WA publicly endorsed all the national standards, except for standards 14, 15 and 16. The WA government considered that standards 14 to 16 required further consideration to ensure the maintenance over time of appropriate protections for children, discretions for WA, and reliability of information constituting a trigger for an assessment or reassessment under the act.

In October 2019, the Office of the Auditor General released its Working with children checks—Follow-up report, which reiterated concerns raised in its 2014 Working with children checks report. Key concerns included the issuing of interim negative notices under the act; the monitoring and enforcement of compliance; and information sharing between the Western Australia Police Force and the Department of Communities, the chief executive officer of which is designated as the decision-maker under the act.

The statutory review of the Working with Children (Criminal Record Checking) Act 2004, tabled in the Legislative Assembly in September 2012, made 23 recommendations, of which 15 were for legislative change and eight were administrative. The legislative recommendations of the statutory review chiefly overlap and accord with those of the Working with children checks report or seek to strengthen the information–gathering and sharing provisions in the act.

The release of successive key reviews and reports requiring legislative address means that the required reforms to the act are complex and far-reaching. A staged approach to the reforms is preferred in WA to assist stakeholders to understand and implement the changes, and so that some important reforms can progress in a more timely manner.

The bill’s proposals have been refined in response to these successive reviews and reports. The bill will address certain key recommendations of the royal commission’s Working with children checks report and associated national standards, the key concerns of the Auditor General as outlined earlier, certain key recommendations of the statutory review, and additional administrative amendments to improve the functionality and effectiveness of the act. These are high-priority reforms that can be implemented without further commonwealth action, national collaboration between states and territories, or additional stakeholder consultation to inform their design.

Extensive stakeholder consultation was undertaken by the royal commission and through the statutory review process. It reflected input from experts and stakeholders familiar with the operation of working with children check schemes; information from private sessions, written accounts, public hearings and case studies; and research and other information on working with children checks.

I turn now to the key provisions of the bill. To address recommendation 14(c) of the Working with children checks report, and recommendation 2(a) of the statutory review, amendments to section 6 of the act are proposed. These amendments will allow the regulations to qualify that particular classes of children, or of persons, cannot access certain exemptions from child-related work provided for in the act or the regulations. It is initially intended to prohibit

Extract from Hansard [COUNCIL — Wednesday, 21 September 2022]

p4233a-4236a Hon Stephen Dawson


persons with a current interim negative notice or negative notice from accessing the child volunteer exemption in the act, or the parent volunteer exemptions in the regulations. Section 12 of the act provides the CEO’s decision-making framework for deciding whether persons will receive an assessment notice, known as a working with children card, or a negative notice. Numerous reforms are proposed to section 12 to address various Working with children checks report recommendations. For example, in line with recommendation 20(b), a new requirement has been added so that a pending charge for a class 1 offence allegedly committed when an adult will result in an automatic negative notice. Changes consistent with this are also proposed for section 13 to require the issue of an interim negative notice and constrain any submission to the CEO in these cases; sections 25 and 33 so that such persons cannot work in child-related work on a pending application, cannot access the five-day defence against the offence of carrying out child-related work without having a working with children card, and must remove themselves from child-related work; and section 36 so that such persons must return their card to the CEO. To address Working with children checks report recommendation 25(d), and concerns raised by the Auditor General around the issue of interim negative notices under the act, a replacement section 13 and a new section 13AA are proposed to allow the issuing of an interim negative notice independent of a proposal to issue a negative notice. The new section 13AA will allow an interim negative notice to be issued if the CEO is of the opinion that there is a reasonable likelihood that a negative notice will be issued. The new section 13AA will continue to require the issue of an interim negative notice for a conviction for a class 1 offence committed when an adult and will extend this to a pending charge for a class 1 offence allegedly committed when an adult. It will also allow discretion if a pardon has been granted. New sections 17A, 17B and 17C are proposed to be inserted into the act to allow a designated conduct review authority prescribed in the regulations to give a notice to the CEO of a prescribed conduct review finding or outcome. Such a notice will trigger an assessment or reassessment, in which case section 12(5) of the act will apply, including if the finding or outcome is subsequently quashed, set aside, withdrawn or found to be unsubstantiated or incorrect. Only findings or outcomes resulting from transparent processes that accord procedural fairness and a right of review are intended to be prescribed. Notices may be given in relation to findings or outcomes that occurred before or after the bill’s commencement date, or the prescription of the relevant conduct review authority, finding or outcome. Related amendments are proposed to sections 11, 13, 18, 19, 21A and 25 of the act so that persons the subject of a conduct review finding or outcome of which notice has been given to the CEO are treated similarly to persons subject to a criminal charge, for various purposes. These proposals address recommendation 19 of the Working with children checks report and recommendation 11 of the statutory review. This will allow an interface between the bill and the forthcoming reportable conduct scheme to be established under the Parliamentary Commissioner Amendment (Reportable Conduct) Bill 2021, which was passed in this house on 16 August 2022. The Western Australia Police Force will be an active partner in the implementation of the act. A new section 33A is proposed to be inserted into the act to support a new process for ongoing monitoring of cardholders’ and applicants’ WA criminal records. This will improve information sharing between the WA police and the CEO and ensure that the WA Commissioner of Police can disclose details of charges and convictions to the working with children screening unit as they occur in real time. The insertion of new section 34I into the act is also proposed to further support appropriate information sharing by the WA police for a working with children purpose or for a purpose connected with the operation of a corresponding law in another jurisdiction. These proposals address the deficiencies noted by the Auditor General in the current process for ongoing monitoring of cardholders’ and applicants’ WA criminal records and information-sharing arrangements between the police and the Department of Communities. The bill proposes to insert a new part 3A into the act to introduce new information–gathering and sharing provisions and relocate and expand current provisions. For example, proposed section 34A provides the CEO with broad information–gathering and sharing powers to inform an assessment or reassessment, including for the compulsion of information from certain bodies, for the disclosure of such information to the CEO and for the CEO’s disclosure of such information to a government agency or criminal records agency. Proposed section 34F provides for the CEO to disclose outcomes to authorised entities, being prescribed public authorities or a criminal records agency, in the public interest. Proposed section 34H provides for the CEO to disclose information relevant to the wellbeing of a child or a group or class of children to a prescribed authority, which includes the WA police. Proposed section 34G provides specific authority for the CEO to disclose negative outcomes and any subsequent reversal of those negative outcomes to the Australian Criminal Intelligence Commission for insertion in a national database, which is the Working with Children Checks National Reference System. This addresses recommendation 3(a)(ii) of the Working with children checks report to the extent possible without further inter-jurisdictional agreement. A new part 3B division 5 is also proposed for information exchange for compliance investigation or prosecution purposes under the act, another law of WA or a law of another jurisdiction. Amendments to section 34 are proposed

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to allow the CEO to request a broader range of information from a criminal records agency or the Director of Public Prosecutions in WA or another jurisdiction, and to authorise WA bodies to disclose that information to the CEO. Amendments to section 17 are proposed so that WA government agencies and other persons or bodies prescribed by regulation may give notice to the CEO of a charge or conviction and the CEO may act on notices and information received, including from police in any jurisdiction. To support this amendment, section 12 will be amended to accommodate such notices and information in the decision-making framework. Together, these proposals address statutory review recommendations 7, 15, 16 and 17 and will improve the administrative effectiveness of the act. To bring the act into line with provisions in other WA statutes, and address recommendations 32 and 33 of the Working with children checks report, recommendation 19 of the statutory review and concerns raised by the Auditor General around compliance monitoring and enforcement, a new part 3B is proposed to be inserted into the act. The new part 3B will provide contemporary powers for compliance monitoring and enforcement and allow authorised officers to be designated under the act, including so that they may request and action search warrants and direct persons to provide information for the purposes of determining compliance or investigating suspected offences. The single current provision for compliance monitoring in section 42 of the act is proposed to be deleted due to the introduction of the more comprehensive powers. The royal commission and national standards recommended substantial amendments to offence categorisation under working with children schemes across Australia. The current schedules 1 and 2 of the act, which list class 1 and class 2 offences respectively, are proposed to be deleted and replaced with new schedules. Together with proposed amendments to section 7 of the act, this will result in a broader number and type of criminal offences becoming class 1 and class 2 under the act. Convictions for class 1 offences committed when an adult result in an automatic negative notice. The bill will extend this to pending charges and provide discretion in the case of a pardon. The bill proposes to include as new class 1 offences all sexual offences against children, and all homicide or other serious violent offending when the victim was a child, and the offence involves an element of intent. The bill also proposes the inclusion of carnal knowledge of an animal and sexual offences against an incapable person, who may not be a child, as class 1 offences. Pending charges or convictions for class 2 offences will result in a negative notice unless the CEO is satisfied of the exceptional circumstances of the case to issue a working with children card. The bill proposes new class 2 offences, being a range of further serious offences, including sexual harm against adults and serious physical harm against adults or when there is no element of intent to cause life-threatening or permanent injury. These changes to offence categorisations will address recommendations 20 and 21 of the Working with children checks report, and incidentally address recommendation 29 to the degree appropriate for WA and consistent with the national standards. Persons with convictions or pending charges for class 1 offences committed or allegedly committed when an adult will be able to seek external review of a negative notice only on the basis that their criminal record does not include that conviction or pending charge. The bill proposes to insert a new division 2 of part 6 for transitional arrangements. These will ensure that the changes to offence categorisation do not result in any person who has a current card at the time of commencement losing their card solely due to the changes, or apply to persons who have made an application for a working with children check prior to commencement on the expectation that they would be assessed according to the old offence categorisations. The new division 2 of part 6 proposes that persons who have a card or a pending application for one on commencement day, and are issued a card after commencement day, will remain subject to the old offence categorisations in perpetuity until they are either newly charged with or convicted of a class 1 or class 2 offence or let their card lapse by failing to apply for a further card prior to expiry of their current card at any time in the future. These transitional arrangements extend to persons with a negative notice issued before commencement day or on or after commencement day if the person was otherwise covered by the transitional arrangements until they exhaust their review and appeal rights. Once any person applies to the CEO to cancel their negative notice, their review and appeal rights are taken to be exhausted and the new offence categorisations will apply. New provisions are proposed to be inserted into the act to improve capacities for online applications and processing. These are the proposed amendments to sections 9, 10, 11 and 13A, and include new capacities for online verification by an employer or education provider of a person’s employment or proposed employment in child-related work. The proposed amendments to section 9A will ensure that education providers who procure child-related work for students on placement are appropriately accommodated in these reforms. A new section 45D is proposed to be inserted, which provides various options, including electronic, for the service of documents, with the regulations able to make provision for the time at which a document given by a particular method is taken to have been served. These reforms address recommendations 25(c) and 26 of the Working with children checks report, providing efficiencies for employer verifications and notifications as part of an improved online application and processing system, which will allow all applications to be made online. The bill proposes a new section 35C, requiring cardholders and applicants to notify the CEO of a relevant change of particulars, such as a change in their contact details or child-related work. This addresses recommendation 16(d)

Extract from Hansard [COUNCIL — Wednesday, 21 September 2022]

p4233a-4236a Hon Stephen Dawson


and partially addresses recommendation 31(b) of the Working with children checks report. Taken together, proposed new sections 35C and 45D will also partially address recommendation 8 of the statutory review. The remaining Working with children checks report recommendations and associated national standards, and statutory review recommendations, that require legislative address and are not contained in this bill, and other matters of importance for the scheme, will be considered for progression as part of a future phase, or phases, of reform. These future matters require extensive consultation with stakeholders and/or have substantial interdependencies with other jurisdictions. For example, recommended changes to the categories of child-related work and the exemptions to those categories will require substantial consultation within WA, and recommendations for national recognition and portability of working with children check outcomes across jurisdictions and for increasing the duration of a card from three to five years will require substantial consultation not only within WA, but also across other jurisdictions. Progress on these issues is dependent on substantial action by other states and territories and the commonwealth to ensure, for example, that their legislation reflects the royal commission recommendations and relevant national standards, and provides a system for ongoing monitoring of national criminal records, respectively. The government’s phased approach to amending the act and proposed phase 1 reforms was recently outlined at a high level to key stakeholders across the categories of child-related work. No objections to these proposals were raised and broad support for them was voiced. A proactive public education campaign was funded in the 2022–23 budget to occur following passage of the bill and prior to commencement of its substantive provisions to ensure that all stakeholders properly understand the changes made to the act. This bill delivers on key recommendations of the royal commission and continues the government’s progress towards implementing all 310 recommendations relevant to WA. It strengthens the effectiveness and precautionary approach of the act, and achieves greater national consistency in the protections that the act provides to WA’s children. Pursuant to standing order 126(1), I advise that this bill is a uniform legislation bill. It is a bill that ratifies or gives effect to an intergovernmental or multilateral agreement to which the government of the state is a party. I commend the bill to the house and I table the explanatory memorandum. [See paper 1650.] Debate adjourned and bill referred to the Standing Committee on Uniform Legislation and Statutes Review, pursuant to standing orders.