A Working with Children and other Vulnerable People Checking System for Tasmania

Transcription

1 Disability, A Working Child, with Youth Children and and Family other Vulnerable Services People Checking System for Tasmania A Working with Children and other Vulnerable People Checking System for Tasmania Discussion Paper Released for public consultation by: Hon. Lin Thorp MLC Minister for Human Services and Hon. Jim Cox MP Minister for Police and Emergency Management January 2010 This paper includes material prepared by the Australian Capital Territory s Department of Disability, Housing and Community Services as part of its implementation of a screening program. Department of Health and Human Services

2 HOW TO LODGE A SUBMISSION 4 ACKNOWLEDGEMENT 5 FOREWORD 6 EXECUTIVE SUMMARY 7 SUMMARY OF QUESTIONS 8 PART 1 - BACKGROUND INTRODUCTION THE RATIONALE OF BACKGROUND CHECKING CHECKS IN OTHER JURISDICTIONS WHAT CHECKS ARE CURRENTLY IN PLACE IN TASMANIA? BENEFITS AND COSTS OF CENTRALISED BACKGROUND CHECKING TIMELINES 17 PART 2 POLICY DETAIL VULNERABLE PEOPLE IN TASMANIA Children Vulnerable Adults 18 8 WHO WILL BE CHECKED? Context Regulated Activities People in Contact with Children People in Contact with Vulnerable Adults Regulated People Engagement Type Contact Type Supervision Exemptions General Exemptions Age Duration and Frequency of Contact Family Relationships Co-participants Employers and Supervisors Specific Exemptions 29 9 APPLICATIONS A New System Timing Existing Employees or Volunteers Information Requirements WHAT WILL BE CHECKED? Australian Records Overseas Records Self-disclosure and Ongoing Monitoring RISK ASSESSMENT PROCESS Risk Assessment Principles 33 Page 2 of 52

3 11.2. Relevant Information Factors for Consideration Expert Advice Position Based Assessments ASSESSMENT OUTCOMES Positive Notices Interim Negative Notices Negative Notices Position-Based Approvals PROHIBITED PEOPLE REVIEW AND APPEAL PENALTIES COMPLIANCE CHECKS SUPPORTING SAFE ENVIRONMENTS FOR VULNERABLE PEOPLE THE WWCVP SCREENING UNIT Location Number of Checks Costs Processing Times Record Keeping COMPATIBILITY WITH OTHER TASMANIAN LEGISLATION IMPLEMENTATION PLAN ACCOUNTABILITY ADDITIONAL QUESTIONS Vulnerable People and the Community Employees and Volunteers Employers and Organisations 46 Page 3 of 52

4 HOW TO LODGE A SUBMISSION Interested parties can download electronic copies of this discussion paper at: Further background information and reference material is also contained on the website. Submissions may be lodged at: wwcvpconsultation@dhhs.tas.gov.au Or WWCVPconsultation Department of Health and Human Services GPO Box 125 HOBART TAS 7001 SUBMISSIONS ARE TO BE LODGED BY 5.00PM FRIDAY 12 March All submissions received in response to this discussion paper will be made available on the DHHS website unless otherwise requested. Page 4 of 52

5 ACKNOWLEDGEMENT I would like to thank Katy Gallagher MLA, the Australian Capital Territory s Minister for Community Services and the Department of Disability, Housing and Community Services (ACT) for granting permission to use material prepared as part of the ACT s process of establishing a similar system. This paper substantially reflects the content of the ACT paper and builds on the analysis and research undertaken within the ACT. The Tasmanian government fully acknowledges the work undertaken by the ACT Department of Disability, Housing and Community Services that has substantially informed this paper. Lin Thorp, MLC Minister for Human Services Page 5 of 52

6 FOREWORD The Tasmanian Government is committed to the support and protection of vulnerable people in the Tasmania. As part of this commitment, the Tasmanian Government will establish a centralised background checking and risk assessment system for people working with vulnerable people to reduce the risk of sexual, physical, emotional or financial harm or neglect. In line with obligations under the National Framework for Creating Child Safe Environments Organisations, Employees and Volunteers, checking systems for people working with children have been established or are currently under development in all Australian jurisdictions. Given the similarities in the risk of harm faced by children and vulnerable adults, Tasmania is considering extending the checking system to include people working with vulnerable adults. Many organisations in the Tasmanian community already recognise that background checking of employees or volunteers who are in contact with vulnerable people is an important part of creating a safe working environment. Currently each organisation is subject to the costs and liabilities of individual checking decisions. Centralisation of checking has benefits for both organisations and individuals. Under the proposed Working with Children and Vulnerable People (WWCVP) Checking System, the Tasmanian Government will set minimum and compulsory checking standards and will apply a consistent risk assessment framework and decision making process. The costs to employees and volunteers who will require a Working with Children and Vulnerable People Check are still to be determined and this is an issue for discussion in this paper. However, any costs will be based on comparisons with other jurisdictions and be fair and equitable and not present a barrier for employment. The WWCVP Checking System will be structured around the principles of natural justice and include review and appeal mechanisms for applicants. This discussion paper presents options and proposals for the establishment of a WWCVP Checking System in Tasmania. I encourage you to consider the issues raised in the discussion paper and invite you to lodge a written submission expressing your views on a WWCVP Checking System in Tasmania that best meets the needs of vulnerable people and the people providing services. Lin Thorp MLC Minister for Human Services Page 6 of 52

7 EXECUTIVE SUMMARY It is proposed that a Working with Children and Vulnerable People (WWCVP) Screening Unit will be established within the Department of Health and Human Services (DHHS). The unit will operate similarly to those established in Victoria, Western Australia and Queensland for working with children checks. People seeking to work with vulnerable people in Tasmania will be required to apply to be registered with the WWCVP Screening Unit before commencing work 1. Provision will be made for people already working with vulnerable people when the new WWCVP Checking System is phased in. Subject to certain exemptions, unregistered people will generally be ineligible to work with vulnerable people. The WWCVP Screening Unit will be responsible for background checking and risk assessment for applicants and registered people. Screening will include a national criminal history check and possibly other forms of checking to the extent allowable in Tasmania. Applicants will be required to consent for checks to take place. Risk assessments will occur under prescribed guidelines by trained assessors. People deemed to pose an unacceptable risk will not be registered and will be prohibited from working with vulnerable people. People may also be deregistered if new information indicates an unacceptable risk to vulnerable people. Successful applicants will be registered with the WWCVP Screening Unit for up to five years and will be permitted to work with vulnerable people for the period of registration. Rechecking will not be required when registered people change employers or positions. A WWCVP card with a unique identification number will be issued to registered people. Employers and organisations will be required to validate the card holder s registration status via an online or telephone validation service prior to engaging that employee. In limited circumstances, and with the support of an employer or organisation, unsuccessful applicants may make a further application for a position-based assessment. This type of assessment will take into account the specific nature of a particular position as well as any risk management strategies proposed by the employer or organisation. After consideration of this information, the WWCVP Screening Unit may approve an applicant to work in a specific position. A WWCVP Card will not be issued and the applicant may not change position or employers without further assessment. The WWCVP Checking System will comply with principles of natural justice and the National Framework for Creating Safe Environments for Children. Applicants will be informed of the reasons for decisions taken by the WWCVP Screening Unit, may make their own submissions to the WWCVP Screening unit and may correct information they believe to be inaccurate. Information concerning applicants or registered people will be held securely by the WWCVP Screening Unit in accordance with privacy legislation and will not be disclosed to employers. Unsuccessful applicants will be able request an internal review of WWCVP Screening Unit decisions or be able to lodge an external appeal through a mechanism such as the Administrative Appeals Division of the Tasmanian Magistrates Court. It is estimated that up to 10% of the Tasmanian adult population (or 37,500 people 2 ) will be subject to background checking, with a rejection rate of around 0.2%. 1 For the purposes of this document, reference to vulnerable people should be read as including children and other vulnerable members of society, including people with disabilities and the elderly. 2 Australian Bureau of Statistics: Australian Demographic Statistics March 2009 Page 7 of 52

8 SUMMARY OF QUESTIONS 8.0 VULNERABLE PEOPLE IN THE TASMANIA Q1) Do you support the proposed definition of vulnerable adult? Are there any other types of definition that should be considered? 9.0 WHO WILL BE CHECKED? Q2) Are there any activities that should be included or excluded from Annex A? Do you have any comments specific to any of the listed categories? Q3) Are there any activities that should be included or excluded from Annex B? Do you have any comments specific to any of the listed categories? Q4) Are there any engagement types that should be added or removed from the proposed list? Q5) Are there any other forms of contact that should be included? Q6) Do you have any comments on the checks that will be applied to supervision? Q7) Do you have comments on the general exemption for age? Q8) Do you support the application of an exemption for people in contact with vulnerable people for infrequent or short periods? Do you support the proposed threshold of 7 days in any 12 month period? Q9) Do you support the application of an exemption for people who are closely related to each (and every) vulnerable person they have contact with? Q10) Do you support the application of an exemption for volunteers engaged in a regulated activity who are closely related to a vulnerable person who ordinarily participates in that regulated activity? Q11) Do you have any comments on excluding normal employee / employer relationships? Q12) Are there any other exemptions that should be considered? 10.0 APPLICATIONS Q13) Do you have any comments on the proposal that unregistered persons can be engaged in a position pending the outcome of their application? Q14) Do you have any comments on the involvement of employers or organisations in the application process? 11.0 WHAT WILL BE CHECKED? Q15) Do you have any comment on the inclusion of other types of information such as Family Violence Orders, Child Protection Orders and past employment records in the checking process? Page 8 of 52

9 Q16) Do you have any comments on the proposal that applicants be required to provide a statutory declaration that they have not been convicted of certain types of offences outside of Australia? 12.0 RISK ASSESSMENT PROCESS Q17) Are there any additional risk assessment principles that should be applied? Q18) Do you have comments on the proposed list of relevant criminal offences? Q19) Do you have any comments on the list of questions to be considered as part of the risk assessment process? Q20) Do you support the additional considerations applicable to non-conviction information? Are there any other considerations that should be included? 13.0 ASSESSMENT OUTCOMES Q21) Do you have any comments on the proposed registration period of five years? Q22) Do you support the proposal for the WWCVP Screening Unit to contact the employer or organisation to advise of the issuance of an interim negative notice or in the other circumstances proposed? Q23) Do you support the application of a five year prohibition on re-applying for a WWCVP Check unless there has been a material change in the information upon which the negative notice was issued? If not, why not? 14.0 PROHIBITED PEOPLE Q24) Do you have any comments on the inclusion of a mechanism for courts to make orders barring people from applying for or holding an approval to work with vulnerable people for specified periods of time? 15.0 REVIEW AND APPEAL Q25) Do you have any comments on the proposed right of internal review by the WWCVP Screening Unit and the right of external merits review by the Administrative Appeals Division of the Magistrates Court and the proposed grounds for merits review? 16.0 PENALTIES Q26) Do you have any comments on the proposed list of offences and the application of penalties for the proposed offences? 17.0 COMPLIANCE CHECKS Q27) Do you have any comments on the proposed compliance activities? 18.0 THE WWCVP SCREENING UNIT Q28) Do you have a view of where the WWCVP unit should be located? Page 9 of 52

10 Q29) Do you have any comments on employees or volunteers being charged a fee for a WWCVP check? Q30) Do you have any comments on the estimated processing times for the risk assessment process? 21.0 IMPLEMENTATION PLAN Q31) Are there other factors that should be considered when determining the priority in which checks are phased in? 22.0 ACCOUNTABILITY Q32) Are there any other mechanisms to improve accountability that should be considered in this section or elsewhere in this discussion paper? 23.0 ADDITIONAL QUESTIONS Q33) Are there any other issues you wish to raise that have not been addressed in this discussion paper? 23.1 Vulnerable People and the Community Q34) Do you have any specific comments which you wish to raise about the proposed checking system? 23.2 Employees and Volunteers Q35) Do you have any specific comments which you wish to raise about the proposed checking system? 23.3 Employers and Organisations Q36) Do you have any specific comments on the proposed role of employers or organisations in the application process? Page 10 of 52

11 PART 1 - BACKGROUND 1. INTRODUCTION The Tasmanian Government supports and is participating in a National Framework for the exchange of criminal history information on people working with children. In support of this commitment the Government is developing and introducing a checking system to screen people who are working with children. It is also considering the possibility of extending this to include people who work with vulnerable adults 3 in our community. The aim of the WWCVP Checking System will be to reduce the incidence of sexual, physical, emotional or financial harm or neglect of vulnerable people in Tasmania. Vulnerable people should expect to be safe within the Tasmanian community, especially when receiving services that are required to relieve any relative disadvantage they may experience. In January 2005, the (then) Commissioner for Children, Mr David Fanning, released a consultation paper entitled Screening of Individuals who Work with Children in Tasmania. The Commissioner s paper proposed the design of a system for screening individuals in Tasmania that would build upon practices already implemented by many organisations. The proposed screening process included all people who work with children in a volunteer and paid capacity in both the public and private sectors. The Commissioner also recommended the establishment of a Central Screening Agency, supported by legislation, to manage the screening process. The introduction of the WWCVP Checking System will address these recommendations and will also address obligations arising for Tasmania under the National Framework for Creating Child Safe Environments Organisations, Employees and Volunteers. Tasmania has also committed, through the Council of Australian Governments, to establishing a unit and legislation to screen people working with children and participate in a national exchange of criminal history information on people working with children. The checking system will require employees and volunteers who work with vulnerable people to undergo periodic background checking and risk assessment. Individuals deemed to pose an unacceptable risk will be ineligible to work with vulnerable people. If the scope of the program in Tasmania is implemented as proposed, Tasmania will be one of the first Australian jurisdictions (along with the ACT) to establish a checking system that applies to people working with children and to people working with vulnerable adults. 3 The definition of vulnerable adults is discussed in section 7. Page 11 of 52

12 2. THE RATIONALE OF BACKGROUND CHECKING The basic premise of background checking is that the past behaviour of an individual provides an indication of the possible future behaviour of that individual 4. Examples or patterns of abusive or inappropriate behaviour can sometimes be evident in information available for assessment such as an individual s criminal record or employment history. There have been documented cases in which a person with a history of abusive behaviour has gained access to vulnerable people because their previous history was not known to their employer or other vetting agency 5. In the worst cases, these people have gone on to commit further abuse. Evidence suggests that around half of sex offenders gain access to their victims through children s organisations 6. An important element of background checking involves risk assessment. Risk assessment describes the process of evaluating available information to reach a conclusion about the risk of harm a person may pose to vulnerable people. A rigorous and transparent risk assessment process must form part of the background checking process to ensure that exclusion decisions are both proper and defensible. The exclusion of people with a known history of certain behaviour is a fundamental part of creating safe working environments for vulnerable people. Background checking and risk assessment should however also be complemented by other organisation-based risk reduction activities such as codes of conduct and risk management plans to help lower the overall risk of harm. 4 Creating Safe Environments for Children Organisations, Employees and Volunteers National Framework. Schedule: An Evidence Based Guide for Risk Assessment and Decision-Making when Undertaking Background Checking, June 2006, p2 5 Birchard, M. (2004). Birchard Inquiry. London: Home Office. 6 Statistics from the Victorian Child Exploitation Squad indicate that between , 43% of offenders gained access to child victims through children s organisations. Petratis, V and O Connor, C, Rockspider: The Danger of Paedophiles Untold Stories, Hybrid Publishers, Ormand, Victoria, 1999 Page 12 of 52

13 3. CHECKS IN OTHER JURISDICTIONS All other Australian States and Territories have established or are in the process of developing centralised checking systems for people working with children. Operational systems have been established in NSW, Qld, WA, Vic, and most recently, NT. A centralised checking system has also been introduced in the UK. Essentially, there are two types of systems in operation: position-based systems and registration-based systems. Position-based systems, such as that employed in NSW, assess the suitability of an applicant for a specific child-related position. The risk assessment process considers information concerning the history of the applicant as well as the specific risks inherent in a particular position. Applicants may only be approved to work in the specific position against which the assessment has taken place and must generally reapply for a check if moving to a new position or employer. Registration systems, such as those in operation in Qld, WA, Vic and the UK, assess the suitability of an applicant to work in child related employment more broadly i.e. there is no assessment of suitability against a specific position. Successful applicants are registered with the checking unit and may change positions or employers without being rechecked during the period of registration. There is no mutual recognition of checking outcomes across jurisdictions. While there are similarities across all checking systems, there are also fundamental differences relating to the definition of child related work, scope of people subject to checking, range of information considered as part of the assessment process, duration of approval notices and the level of fees charged to undertake an assessment. As it is believed that [w]here persons may be excluded from child related employment/volunteering in one State or Territory or particular organisations within a jurisdiction, they may gravitate towards other jurisdictions and agencies with less stringent screening provisions 7, it is important to consider the checking requirements in other Australian jurisdictions when developing a WWCVP Checking System for Tasmania. 4. WHAT CHECKS ARE CURRENTLY IN PLACE IN TASMANIA? No broad legislative framework exists within Tasmania for WWCVP checks. Government and non-government organisational policies vary regarding employee criminal history record checks. Routine screening does take place within a number of professions and organisations. These checks usually involve a National Police Criminal History Check (NPCHC) through CrimTrac, which is processed by the Department of Police and Emergency Management (DPEM). The NPCHC currently only involves court outcome information; no circumstantial or pending charges are included. A number of Tasmanian Government agencies screen applicants prior to employment in high risk occupations, some of which involve work with children and other vulnerable people. These checks may involve an identity check, checks on any relevant disciplinary action in previous employment and a NPCHC. In order to conduct such checks, a request must be made by the Agency and then approved in relation to a particular position or class of 7 CSMAC Agenda paper Item 2.2, 7 October p2 Page 13 of 52

14 positions by the State Service Commissioner. Prior permission is sought from the applicant. Not all agencies conduct ongoing screening of State Service employees once they are employed. It is important to note that under current Tasmanian arrangements the assessment and decision for employment are made by the employer. Staff working in the areas of child protection and youth justice are screened prior to employment in these services. Applicants provide permission for checks to be conducted as part of the application process. This screening process involves the following checks. (1) A conviction check in the areas of:- a) Crimes of violence; b) Sex related offences; c) Serious drug offences; and d) Crimes of dishonesty. (2) Identification check. (3) Disciplinary action in previous employment check. These checks must be renewed every 3 years, which allows for further scrutiny after the initial pre-employment check. This process is currently being extended to staff who work in the area of disability services. Service funding agreements applicable to service providers (including Disability Services providers) funded by the Department of Health and Human Services (DHHS) include requirements to ensure that all people engaged by the organisation to work with vulnerable people are fit and proper people. Organisations are required to obtain a police check and personal references when engaging employees, volunteers or contractors who will, or will be likely to, have contact with vulnerable people. DPEM screens all police applicants prior to employment. Applicants provide permission for checks to be conducted as part of the application process. Checks conducted include Tasmanian records of spent and non-conviction charges, police intelligence holdings, psychological screening, full history checks in other jurisdictions and, where a person has immigrated from overseas, information is sought from the Australian Immigration Service. This process includes checks from other agencies, both local and federal as required, and each applicant is visited at their residence by a senior police officer to assess their character and home environment, as well as referees providing reports and being interviewed. Teachers are screened by the Teachers Registration Board (TRB), pursuant to the requirements set out in the Teachers Registration Act 2000 and must be of good character to be registered. This is determined through a Good Character Check Form, which involves a NPCHC and previous employment history check. The Act states that previous convictions must be considered by the registering board. To obtain these details, permission is obtained from the applicant before the check is undertaken. If the applicant is unwilling to consent to a Good Character Check, then the processing of his or her application for registration ceases. Registration must be renewed every 3 years. The Department of Education (DoE) requires that all school-based employees and specified school-based volunteers undergo a Good Character Check. All Library and On-Line Access Centre employees and volunteers are also required to undergo a Good Character Check. DoE recognises that a registered teacher has met the requirements of a NPCHC, but currently requires additional checks of identity and previous employment to be satisfied before employing the person. Page 14 of 52

15 School-based volunteers involved in identified high-risk areas, such as those on overnight camps and unsupervised activities, are required to have a Good Character Check. All other volunteer activities are subject (on the basis of DoE policy) to a formal risk assessment by the Principal to determine is a Good Character Check will be required. Checking of volunteers is not subject to any approval of, or limitations by, the State Service Commissioner. Childcare services must be licensed as required by the Child Care Act That Act requires that people who have contact with children in care are fit and proper persons. These checks involve a NPCHC and may include checks with current and previous employers. Again, permission is required from the applicant. The Commonwealth Government has introduced checks for certain people working in the aged care sector under the Aged Care Act Under Part 4.4 of the Accountability Principles 1998 a person cannot be engaged in aged care as a staff member or volunteer, if they have been convicted of murder or sexual assault or convicted of, and sentenced to imprisonment for, any other form of assault. Newly developed National Health Practitioner Regulations 8 applies to all health professionals and require an individual to be a suitable person prior to registration with a National Board 9. Each National Board is required to develop registration standards which include matters about the criminal history of applicants for registration in the profession, and registered health practitioners and students registered by the Board, including, the matters to be considered in deciding whether an individual s criminal history is relevant to the practice of the profession 10. Any criminal history check to the extent it is relevant to the individual s practice or profession can then be taken into account by the National Board in deciding an individual is not a suitable person. For the purpose of these provisions, criminal history includes: - every conviction of the person for an offence in Tasmania or interstate; every plea of guilty or finding of guilt by a court of the person for an offence in Tasmania or interstate regardless of the recording of a conviction for the offence; and every charge made against the person for an offence in Tasmania or interstate 11. The National Regulations are in the process of being enacted in all States and Territories and a Bill to adopt the legislation will be considered by Tasmanian Parliament in The Australian Index of Medical Practitioners, of which Tasmania is a member, currently flags misconduct complaints against medical doctors which may be used in assessing character. The usual process, if the applicant has been registered interstate, is to obtain a certificate of good standing from the other jurisdiction. Some registration authorities seek clearance from all other interstate registering authorities as part of their checking process. Local lawyers in Tasmania must be a fit and proper person to be admitted to the legal profession 12. In determining this, the Supreme Court is required to take into account a number of suitability matters which include: - whether the person has been convicted of an offence in Australia or a foreign country, and, if so 8 Health Practitioner National Law Act 2009 (Qld) in the process of being adopted in Tasmanian under the Health Practitioners Regulation National Law (Tasmania) Bill The definition of National Board covers the range of health professional boards in medical and allied health Health Practitioner National Law Act 2009 (Qld) s Section Section Legal Profession Act 2007, s26. Page 15 of 52

16 (i) the nature of the offence; (ii) how long ago the offence was committed; and (iii) the person s age when the offence was committed. 13 Applicants are required to obtain and submit a police check in relation to the applicant s criminal record for all Australian jurisdictions. 14 There is currently no legislation requiring organisations to screen volunteers in Tasmania. As part of their internal risk management strategies, several larger volunteer-dependent organisations such as Scouts, some school organisations and Police and Community Youth Clubs require volunteers to provide a NPCHC. Many individual organisations in the Tasmanian community also recognise that background checking of employees or volunteers in contact with vulnerable people is an important part of creating a safe working environment. As checks are not mandatory, individual policies vary in terms of who is checked, what is checked, how often checks are conducted and what information will lead to an exclusionary decision. Any costs incurred to undertake background checks are either borne by the organisation or passed to the employee or volunteer. Organisations are of course also subject to the costs and liabilities that may arise from their individual checking decisions. The Tasmanian Government recognises that it is vitally important that the new WWCVP Checking System does not unnecessarily increase financial costs, liabilities or administrative burdens on individuals or organisations. While the overall aim of the WWCVP Checking System will be to reduce the risk of harm to vulnerable people, this must be achieved without discouraging individuals or organisations from providing much needed services to vulnerable people in the Tasmanian community. 13 Legal Profession Act 2007, s9. 14 Supreme Court Rules 2000, s783ae, Form 57BB. Page 16 of 52

17 5. BENEFITS AND COSTS OF CENTRALISED BACKGROUND CHECKING The introduction of a WWCVP Checking System in Tasmania will have many benefits for vulnerable people, employees, volunteers, organisations and employers. The WWCVP Checking System will establish mandatory minimum checking standards that will apply across all regulated activities. Vulnerable people can be assured that all persons delivering vital services have been subject to a minimum level of checking. This is in contrast to the current system wherein decisions concerning whether or not checks should be conducted are left to individual service providers. Risk assessments conducted by the WWCVP Screening Unit will also be based on a broader range of information than checks currently able to be undertaken by individual service providers. Under a centralised checking system, risk assessments and decision making processes will be more consistent and open to review and appeal. From the perspective of persons subject to checking, this will lead to more considered and reliable checking outcomes as opposed to the current situation wherein individual service providers may take a different view concerning the risks presented by individual employees or volunteers. For the first time in Tasmania, registered persons will be able to move between employers or organisations without the need to be rechecked. This is of benefit to both registered persons and the employers or organisations with which they are engaged and will reduce duplication of the checking effort across the Tasmanian community. There will however be some cost in centralising checking. Some persons or organisations will become subject to periodic checking for the first time and will therefore incur an increased administrative overhead. It is also likely that some persons who become subject to checking will be prevented from working with vulnerable people in the future. This is consistent with the stated aim of the reducing risks for vulnerable people. The costs to consumers are still to be determined, but will be based on comparisons with other jurisdictions, will be fair and equitable and not present a barrier for employment. There is also a possibility that the introduction of checking requirements may deter some employees or volunteers from working with vulnerable people. On balance, the Tasmanian Government considers that centralised checking will at the same time improve service delivery to vulnerable people through offsetting benefits that reduce the cost and frequency of checking for many other persons. There will be a range of exemptions that aim to moderate the impact of checking in circumstances where checking may be of little net benefit. 6. TIMELINES This discussion paper has been released for a consultation period beginning January 2010 and ending in March It is anticipated that a consultation report will be released in April 2010 summarising the views expressed by stakeholders during the consultation period. A WWCVP Policy will be finalised and submitted for the consideration of Government and it is anticipated that legislation will be introduced into the Tasmanian Parliament in late It is expected that checking will be phased in over five years commencing in Page 17 of 52

18 PART 2 POLICY DETAIL 7. VULNERABLE PEOPLE IN TASMANIA It is proposed that the term vulnerable people will include children and certain vulnerable adults. 7.1 Children To promote consistency across Tasmanian legislation, it is proposed that the definition of child applicable under WWCVPC legislation will refer to the definition of child under the Children, Young Person and Their Families Act The Children, Young Person and Their Families Act 1997 provides the following definition: Child, means a person under 18 years old. 7.2 Vulnerable Adults Given the similarities in the risk of harm faced by children and certain vulnerable adults, it is proposed that background screening will be extended to people working with vulnerable adults in Tasmania. As Tasmania will be one of the first Australian jurisdictions to establish checking for people working with vulnerable adults, a suitable definition of vulnerable adult must be developed. The policy journal, Health Affairs, (2007) provides a broad definition of vulnerability: Vulnerability, the susceptibility to harm, results from an interaction between the resources available to individuals and communities and the life challenges they face. Vulnerability results from developmental problems, personal incapacities, disadvantaged social status, inadequacy of interpersonal networks and supports, degraded neighbourhoods and environments, and the complex interactions of these factors over the life course. The priority given to varying vulnerabilities, or their neglect, reflects social values. While there is widespread usage of the term vulnerable person/adult in Australia and overseas, each definition reflects the different purpose for which it was initially drafted. A selection of these definitions is contained in Table 1, below. Page 18 of 52

19 Table 1: Existing definitions of vulnerable persons/adults in use in Australia and the UK. Source Definition ACT Service Funding Agreement For the purposes of this Item 2, vulnerable adults may include adults by reason of age, frailty and/or intellectual disability. Spent Convictions Act 2000 (ACT) This Act contains exclusions applicable to persons working with children, aged persons or people with a disability. Vulnerable Persons Policy. For the purposes of this policy the department QLD Department of Justice and Attorney- has identified vulnerable people to include: General Aboriginal and Torres Strait Islander people; Children, young people and their families; People with a mental illness, intellectual disability, acquired brain injury, or cognitive impairment; People who are affected by domestic or family violence; People from culturally and linguistically diverse backgrounds and in particular people who have English as their second language; and People who are homeless. Criminal Procedure Amendment (Vulnerable Persons) Bill 2007 (NSW) This Act relates to the giving of evidence by children and intellectually disabled persons. Intellectually impaired persons are defined as persons with: an appreciably below average general intellectual function; a cognitive impairment (including dementia or autism) arising from, or as a result of, and acquired brain injury, neurological disorder or a developmental disorder; or any other intellectual disability. Criminal Records (Spent Convictions) Act (NT) Standard 3.3.1: Food Safety Programs for Food Service to Vulnerable Persons. Food Standards Australia New Zealand No Secrets: Guidance on developing and implementing multi agency policies and procedures to protect vulnerable adults from abuse (2000). Department of Health and Home Office (UK) In Safe Hands: Implementing adult protection procedures in Wales (2000). National Assembly for Wales. Department of Constitutional Affairs (UK) vulnerable persons includes children, aged persons and persons with a physical or intellectual disability or mental illness. Vulnerable person means a person who is in a care facility listed in the Schedule or a client of a delivered meals organisation. People aged 18 and over who: need community care services due to a mental disability, other disability, age or illness; and may be unable to take care of themselves or protect themselves against serious harm or exploitation. As above. As above. Page 19 of 52

20 Source Safeguarding Vulnerable Groups Act 2006 (UK) Definition 1) is living in residential accommodation, such as a care home or a residential special school; 2) is living in sheltered housing; 3) is receiving domiciliary care in his or her own home; 4) is receiving any form of health care; 5) is detained in a prison, remand centre, young offender institution, secure training centre or attendance centre or under the powers of the Immigration and Asylum Act 1999; 6) is in contact with probation services; 7) is receiving a welfare service of a description to be prescribed in regulations; 8) is receiving a service or participating in an activity which is specifically targeted at people with age-related needs, disabilities or prescribed physical or mental health conditions or expectant or nursing mothers living in residential care (age-related needs includes needs associated with frailty, illness, disability or mental capacity); 9) is receiving direct payments from a local authority/hss body in lieu of social care services; 10) requires assistance in the conduct of his or her own affairs. One option for defining vulnerable adults in Tasmania would be to simply list broad categories of people who might generally be considered to be vulnerable, such as those listed under the Qld Department of Justice and Attorney-General, Vulnerable People Policy or the Northern Territory Criminal Records (Spent Convictions) Act However, this style of definition is likely to be considered patronising or offensive to some people in Tasmania. For instance, many people may not consider themselves to be vulnerable simply because they have a physical disability or belong to a particular cultural group. An alternative option would be to link extant vulnerability with the receipt of social services that are associated with alleviating any disadvantage or vulnerability. Under this type of definition, people would only be considered vulnerable upon the acceptance or use of such services. This type of definition also has the potential to establish a sound basis for the determination of the types of services or activities that might attract background checking. Given the concerns raised above, a definition of vulnerable adult based upon the receipt of services that relieve disadvantage is preferred. Subject to further consultation, it is proposed that the following definition be used: Vulnerable Adult refers to people aged 18 or over that access services in Tasmania, as defined under Regulations, to alleviate the effects of physical, social, financial and/or psychological disadvantage. The services to be defined under Regulations are addressed later in this paper. Q1) Do you support the proposed definition of vulnerable adult? Are there any other types of definition that should be considered? Page 20 of 52

21 8 WHO WILL BE CHECKED? 8.1 Context Initial consultations with community stakeholders have indicated that there is currently a range of approaches to determining who should be subject to background checking in any given organisation. Policies tend to reflect the specific nature of the work undertaken by the organisation and often specify the particular positions for which checking will apply. Conversely, in some cases, policies do not exist and screening decisions are taken on an ad hoc basis. The WWCVP Checking System must be generally applicable to all individuals and organisations in Tasmania. It will not be possible to simply list every position or circumstance in which checking should apply. A generic framework is required to assist individuals and organisations with the criteria that could be considered in determining who should be subject to checking under the WWCVP Checking System. It is proposed that checking will generally apply to: 1. certain regulated activities ; and 2. undertaken by certain regulated people / organisations ; and 3. subject to certain general or specific exemptions. All of these criteria must be considered when making a determination about whether or not a person should be subject to checking. For this reason, stakeholders may wish to consider all of these criteria before responding to the questions listed under each section below. To aid understanding of the determination process, a simple diagnostic tool is included as Table 2, below. This tool will be further developed to reflect the outcomes of the consultation process and will be made available to prospective applicants of the WWCVP Checking System. Each of the considerations listed in Table 2 are addressed in the sections to follow. Page 21 of 52

22 Table 2: Simple Diagnostic Tool for Determining if Checks are Required. Question Answer Q1. Do I participate in a regulated activity? Yes - proceed to Question 2. Considerations: No check is not required. Regulated activities as listed in Annex A Regulated activities as listed in Annex B Q2. Am I a regulated person? Considerations: Yes - proceed to Question 3. No check is not required. Engagement type Contact type Supervision level (if applicable) Q3. Is there a general or specific exemption that applies to me? Considerations: Yes check is not required. No check is required. Age Duration and frequency of contact Family relationships Co-participants Employers and supervisors (if applicable) Specific exemptions 8.2 Regulated Activities The first step in determining whether or not an individual is subject to screening relates to Regulated Activities. Regulated activities are the occupations or services that will attract screening, subject to other considerations. The administrative and financial burden that would be incurred by simply including all instances where a person may have some contact with vulnerable people would be unsustainable. It is therefore prudent to ensure that limited screening resources are targeted towards the activities where the risk of harm to vulnerable people is greatest People in Contact with Children It is proposed that regulated people who are in contact with children will be checked if they are involved in the provision of the regulated activities listed at Annex A. To promote national consistency, Annex A has been developed with reference to the activities that currently attract checking in other Australian jurisdictions. Q2) Are there any activities that should be included or excluded from Annex A? Do you have any comments specific to any of the listed categories? Page 22 of 52

23 8.2.2 People in Contact with Vulnerable Adults Tasmania will potentially be one of the first Australian jurisdictions to extend checking to people working with vulnerable people. It has not been possible to develop a list of regulated activities based upon those that attract checking in other Australian jurisdictions. Section 7.2 of this discussion paper proposes that the definition of vulnerable adult in Tasmania be linked to the receipt of services that relieve disadvantage. It naturally follows that activities related to the delivery of such services should be included in the checking system. Only one other jurisdiction, the ACT, has proposed broadening the scope of the screening program to include vulnerable people generally. As part of the research informing the ACT discussion paper, the ACT Council of Social Service (ACTCOSS) was commissioned to identify non government organisations that provide services for disadvantaged people and those in poverty that do not receive any ACT Government funding. In Tasmania, the recently released Social Inclusion Strategy for Tasmania provides a basis for considering disadvantage in Tasmania. As part of further developing the preferred model, consideration would be given to both the ACT report and the Social Inclusion Strategy for Tasmania to reflect an appropriate list of regulated activities for Tasmania. In addition, the definition of vulnerable person used under the Safeguarding Vulnerable Groups Act 2006 (United Kingdom) as contained in Table 1 has been referenced. Q3) Are there any activities that should be included or excluded from Annex B? Do you have any comments specific to any of the listed categories? 8.3 Regulated People The term regulated people refers to the range of ways in which people may work with vulnerable people, including engagement type, contact type and supervision arrangements Engagement Type Broadly speaking, there are two main groups that work with vulnerable people in Tasmania: employees and volunteers. However, the experience of other Australian screening jurisdictions is that it is necessary to specify a broader range of engagement types to remove any doubt about whether or not a particular individual should be subject to checking. It is proposed that the following categories of engagement be included as part of the checking regime: employees; self-employed; contractors; sub-contactors; agents; religious officials; volunteers; the performance of unpaid community work after a court order; board members; students; and trainees. Page 23 of 52

24 The specification of these categories aims to lessen the chance that an individual can claim special status and attempt to argue that they are neither an employee nor volunteer, and hence not subject to the WWCVP Checking System. Specification also allows for modification of the scope of checking in the future if circumstances dictate that this is necessary to protect vulnerable people, or remove unintended consequences. An alternative option to listing each of the categories above would be to include all people and then develop a list of exclusions. This approach is likely to result in a large list of exclusions and would be inconsistent with practices in other Australian jurisdictions. In developing a preferred model, the Tasmanian Government seeks to specify inclusions and minimise the scope of exemptions (see Section 8.4 to follow). Q4) Are there any engagement types that should be added or removed from the proposed list? Contact Type One of the defining aspects of the WWCVP Checking System is that it will apply only to people who are in contact with vulnerable people. There are two fundamental criteria associated with determining whether or not a person is in contact with vulnerable people that relate to the nature of the contact and the regularity of contact. The key considerations in determining risks in the nature of contact is whether or not a person has an opportunity to directly harm an individual or influence a vulnerable person through building a relationship of trust or dependence. While there are obvious risks associated with direct physical contact, improvements in communication technologies have resulted in opportunities for relationships of trust and dependence to develop in the absence of any form of physical contact. There have been numerous instances reported in the media of people using communications technology to harm, or groom for harm, a vulnerable person. Other forms of contact that may present some level of risk could involve having access to records concerning vulnerable people or making decisions that materially affect vulnerable people. While there may be no direct contact, there is the potential for the misuse of information or access gained while acting in these positions. The WWCVP Checking System is not intended to apply where contact with vulnerable people is irregular and incidental to normal activities. An example of this type of contact would be a plumber who is engaged to carry out emergency repairs at a school. It is proposed that checking will only apply in circumstances where contact with vulnerable people is regular and systematic (i.e. contact can be expected as part of the position). An example of this type of contact would be a school janitor who routinely carries out duties on school premises at times when students are expected to be present. In line with these considerations, it is proposed that people will be checked when contact with vulnerable people is regular and systematic and involves: any form of physical contact; any form of communication; working within close proximity to vulnerable people; working with records relating to vulnerable people; and/or the making of decisions affecting vulnerable people. Q5) Are there any other forms of contact that should be included? Page 24 of 52