2016-11-24
I am pleased to rise this evening to contribute to the Working with Children Amendment Bill 2016. It is clear from the Working with Children Checks Report by the Royal Commission into Institutional Responses to Child Sexual Abuse that a national approach is required to working with children checks. It is a welcome development that we are considering this bill, as it seeks to achieve this objective by implementing 5 of the 36 recommendations made by the royal commission that can be implemented independently of other jurisdictions. However, while the interests and protection of children are paramount, we also need to ensure that people are not unfairly prevented or restricted from accessing employment. We also need to ensure that the government is implementing fully the recommendations made by the royal commission rather than just certain aspects, like the ones we are considering here today.
As such, I will take the opportunity to cover just a few of our concerns with the bill. Firstly, there is the reasoning behind widening the definition of 'direct contact' to include written, electronic and oral communication, as is recommended by the royal commission report. Given that predators are grooming children online, the failure to include in the bill definitions of each type of contact as recommended by the report is a concern.
We note that the Scrutiny of Acts and Regulations Committee (SARC) also raises these concerns around what defines written, oral and electronic communication with a child. These could potentially include mass public communications, such as newsletters, social media and YouTube videos, whose recipients include people under 18, but that is not clear. SARC says the amendment to the definition of 'direct contact' combined with the amended definition of 'child-related work' may breach the Victorian Charter of Human Rights and Responsibilities right to freedom of expression, but we just do not know without structured definitions.
We also note Liberty Victoria's concerns that the bill goes beyond the limits of what is reasonable and practicable in balancing the interests of children with the rights of people to be involved in the lives of children. They are concerned also that this could lead to employers opting to require working with children checks even when the work does not fall within the definition of 'child-related work'. While the interests of children are paramount, there are also human rights concerns attached to people seeking assessment notices under the act.
The Greens understand the importance of balancing these work rights with ensuring that there are sufficient safeguards in place to protect children from physical and sexual abuse and that having in place the necessary safeguards to protect children is the paramount consideration. As such, I would appreciate it if the minister could explain why the government have chosen to give no definition while they wait for agreements with other jurisdictions and why there has been a definition provided in the interim before there were agreements between the jurisdictions.
Secondly, the Greens have concerns about the controversial proposal to allow non-conviction charges to be considered. On the one hand, we know that at the moment Victoria is the only jurisdiction without the consideration of non-conviction charges for working with children checks. This means that non-conviction charges for Victorian offences are unavailable for working with children check assessments in all other jurisdictions. There may be non-conviction charges that are very serious that may have been dismissed on a technicality or may not have proceeded because of the impact on the victim. These forms of non-conviction charges will assist in a more informed assessment of the risk a person may pose to a child.
We also note that the Australian Institute of Criminology observes that sexual offending against children results in a very small proportion of cases progressing successfully through the courts. However, we need to balance the above important justifications for allowing non-conviction charges to be released for working with children checks with the valid concerns raised by the Law Institute of Victoria and Liberty Victoria.
We also note that there may be charges dismissed or withdrawn because of lack of evidence or because the wrong person has been charged. In addition, interference with a person's capacity to work where there has been no finding of guilt or proof of an offence is of concern. We understand this is a difficult balancing exercise, but we note that SARC has also raised concerns about the combined effect of clauses 5, 28 and 29.
SARC have also raised questions in their report on the issue of expungement of historical homosexual offences. As such, it would also be good if the minister could explain how this would affect a person who was wrongly charged and how it interacts with the expungement of historical homosexual offences.
Thirdly, the Greens make note of the risks involved in the data-sharing powers between the Department of Justice and Regulation and the Department of Health and Human Services. While we can understand the necessity for the bill to allow for information sharing between departments, we note that this is a very broad provision, so it would be great if the minister could explain how these provisions would work in practice.
Finally, I would just like to note that we should not be relying on working with children checks alone to protect children. That seems obvious, but I think we need to have that stated. While working with children checks provide an important pre-employment screening process to protect children from physical or sexual harm, they are only a minimum check and, as stated in the royal commission report, are but one of a suite of strategies that can be used to ensure institutions are child safe. It is essential that this whole suite of strategies is accessible, which includes identifying key elements of child safe organisations and how they should be implemented in practice. Given that working with children checks are not enough to guarantee child safety, we also need to ensure that we have high standards for child protection and out-of-home care, and this requires not only sufficient resources, investment and training but also sufficient monitoring of these services, guidelines and support. In conclusion, the Greens will support this legislation.