Working with Vulnerable People Mission Australia s response to the Working with Vulnerable People (Background Checking) Bill 2013 in Tasmania Introduction Mission Australia welcomes the opportunity to provide comment in relation to the Working with Vulnerable People (Background Checking) Bill 2013 (Bill). Mission Australia believes that all vulnerable people have a fundamental right to a safe and trusted environment that is free from harm and supports initiatives to ensure the safety, welfare and well-being of vulnerable people. Mission Australia acknowledges the important role that a registration system plays in providing a protective mechanism to reduce risk of harm to vulnerable people by prohibiting those with serious convictions from working with vulnerable people and assessing others against robust risk criteria. However, Mission Australia notes that every state is unique in the way that working with children and vulnerable people is regulated and this can create some confusion and inefficiency for organisations such as Mission Australia which work across multiple jurisdictions. For this reason Mission Australia supports the principal of a national registration scheme that delivers clear and consistent outcomes, efficiency gains and ease of administration. A national scheme would support the mobility of workers and volunteers across multiple jurisdictions and would enable organisations operating across multiple jurisdictions to implement consistent approaches to screening and governance. Mission Australia notes that a national review of working with children checks is currently underway and has recommended that the scope of this review be extended to capture working with all vulnerable groups. In the context of this review, Mission Australia submits that any equivalent state regulation is receptive to the possibility of national harmonisation and considers practices adopted in other states, particularly those that reflect the principles canvassed in this submission response. General comments on registration and checking systems for those working with vulnerable people Mission Australia supports the principal of registration and checking system for working with vulnerable people which reflects the following principles: The system should support flexible deployment of people across jurisdictions. The system should produce consistent and credible outcomes. The system should be streamlined and easily administered.
The cost of registering for and administering the checks should be a free service or, if this is not possible, should be funded by the individual worker and tax deductible. The service should be free for volunteers. The system should provide a framework providing as much clarity and certainty as possible regarding those who are and are not suitable to work with vulnerable people. A positive status should provide employers with the confidence to hire based on the findings of the agency and all credible information available. Those granted a positive status should be subject to a robust risk assessment by the agency which should result in a reasonable finding (based on the information available) that the person poses no risk to vulnerable people in the workplace before the status is granted. A system should provide a common understanding of what offences will amount to a negative status, which is consistent with other states so far as reasonably practicable. The legislation should clearly define what roles are captured and provide a mechanism for assessment where this is unclear. The registration system should provide timely outcomes to prevent delays in the recruitment process. The system should incorporate continuous monitoring and provide an automated notification system where the status of existing workers changes post commencement or if their registration expires. A system should provide protections for organisations that elect not to engage workers on the basis of a negative status. A system should clarify rights when a negative status is identified and a worker appeals the outcome, provide for timely resolution of an appealed status and protect organisations from claims in the event that a worker is removed from a position involving working with vulnerable people pending the outcome of an appeal. A system should be a part of a framework which provides clear guidance to enable organisations to respond to inappropriate behaviour of people working with vulnerable people and should provide protections for organisations that choose to act in accordance with that guidance. A deemed to comply approach should be considered. The implementation of a system should be supported by appropriate phasing in periods to enable workers and organisations to respond to the change. Feedback on the draft Working with Vulnerable People (Background Checking) Bill 2013 Mission Australia supports the concept of a centralised checking system that provides additional protection to vulnerable people in Tasmania. Mission Australia notes that the
portability of registration across organisations will benefit employees and volunteers seeking to move across programs and roles without having to meet the cost of multiple checks. Matters requiring further clarification Mission Australia submits that the following matters within the current Bill require further clarification: Section 16 of the Bill provides that: An employer must not engage a person, or require a person to be engaged, in a regulated activity for the first time if the person- is required to be registered to engage in the activity; and is not so registered with a registration allowing that engagement. Further clarification as to the intent behind this provision is required and in particular what is meant by first time and how this provision interacts with section 16(2). Clarification is required in relation to how the imprisonment provisions are intended to operate, if at all, to employers who are not natural persons (e.g. corporations). We note that section 40(1) of the Bill provides that the Registrar may seek information from any entity the Registrar considers may be able to give information or advice relevant to whether a registered person continues to pose no risk or an acceptable risk of harm to a vulnerable person. Section 40(2) further stipulates that an entity that provides such information will not contravene any duty of confidentiality the entity has under any law or agreement despite anything to the contrary in the law or agreement. While section 40(2) infers that the provision of any such information by an agency would be voluntary it should be noted that organisations will often have policies in place which regulates disclosure of information to external parties and will be concerned with breaches of national privacy principles. Further clarification as to the interaction between the Bill and privacy laws is required. Notification of a proposed negative notice Mission Australia also submits that the Bill s intent may be better supported through the following additional safeguards: Section 28(3) of the Bill provides that a named employer will not be notified that a proposed negative notice has been provided to a person. We note that the person will have a right to a review in these circumstances. We further note that an extension of the review period is available under section 34 of the Bill if the Registrar considers that there are reasonable grounds to do so given the person s circumstances. Given the potential risk that this may create if a person has commenced in the workplace (albeit in a supervised capacity) it will be critical that ant review is carried out in a timely manner. We also note that an employer may elect to have an internal
policy, contractual condition or may otherwise decide that a person is not permitted to commence work until a valid registration is provided. Mission Australia submits that the legislation should ensure that employers are protected from any form of repercussion if a decision is made not to proceed with the employment if the application has not been approved within the time required by the employer. A mechanism should also exist to ensure that an organisation is able to verify that an application is in progress. We note that section 44 of the Bill provides that if the Registrar determines to conduct an additional risk assessment of a person, the Registrar may determine to suspend the person s registration while the assessment is conducted. While section 45 provides that the registered person is notified of the intent to suspend a person, there is no provision requiring the notification of the organisation for which the person is working. We would recommend an inclusion of a provision requiring that the named organisation be notified so that steps be taken to address any potential risks the person poses in the workplace for serious matters and that the organisation be immune from any repercussions associated with removing the employee from the workplace or taking other action to manage potential risks in these circumstances. Notification of change of employment/volunteering details As described above, Mission Australia submits that any registration and checking system for working with vulnerable people should incorporate continuous monitoring and provide an automated notification system where the status of existing employees changes post commencement of their role or when their registration expires. In line with this principle, Mission Australia recommends the inclusion of a requirement for an employee to notify the Screening Unit of changes to their work status, including a change of the organisation for which they are carrying out the work. This will enable the Screening Unit to notify organisations of changes. Transitional matters Mission Australia considers that it will be important to ensure that sufficient information and education is made available to workers regarding their disclosure obligations and requirements to apply for the new registration. The introduction of a centralised checking system for those working with vulnerable people is a significant change for community services organisations and it will be important to provide organisations with comprehensive information and support to assist them in meeting their obligations prior to implementation and enforcement. It will also be important to provide clear guidance to organisations in relation to their responsibilities to current employees who receive a negative notice. In particular, organisations will benefit from guidance as to how an employer should respond including notice requirements, termination pay and applicable industrial protections.
It will also be important to provide guidance to employers as to their rights in circumstances where an employee requests a review of a determination, noting that there may not be an alternative position to which a person can be redeployed where a determination is being reviewed. In transitioning to the new scheme, it will be essential to develop clear guidance for organisations and workers regarding transitional arrangements and how the new checks will impact them. Which activities should be placed into the Regulations first? Mission Australia has no objection to the proposed approach of giving initial priority to child related roles and would consider this appropriate given the Tasmanian s Government s support and participation in National Framework for the exchange of criminal history information in relation to people working with children. General comments and conclusion Mission Australia supports the principle of a checking and registration system for working with all vulnerable people and considers that such as scheme should provide a robust, credible and defensible decision making framework to guide decisions about suitability for work in roles involving direct contact with vulnerable persons. Mission Australia also notes that the system will support organisations in creating safe environments for vulnerable persons and submits that the Department of Health and Human Services and Screening Unit could further support this objective by providing training, online information, guidelines, selection tools and templates to assist organisations in managing risk. Contact for Submission: Mr Noel Mundy State Director Tasmania Suite 2, Level 1 175 Collins Street Hobart TAS 7000 Phone: 03 6225 8200 mundyn@missionaustralia.com.au