CHILD PROTECTION (WORKING WITH CHILDREN) AND OTHER CHILD PROTECTION LEGISLATION AMENDMENT BILL 2016

19 October 2016

2nd Reading Speech


The Hon. ADAM SEARLE ( 17:56 ): I lead for the Opposition on the Child Protection (Working with Children) and Other Child Protection Legislation Amendment Bill 2016. The Opposition does not oppose the bill and will always ensure that it does what it can to support any strengthening of legislation that guarantees child protection is front and centre of all of our considerations. Protecting children is and should be paramount to those of us charged with the public duties that we have. The bill seeks to amend the Child Protection (Working with Children) Act 2012, the Children and Young Persons (Care and Protection Act) 1998, the Teaching Services Act 1980, and the Education (School Administrative Support Staff) Act 1987. The bill seeks to implement various amendments concerning the governance of the clearance framework for working with children. 

As the Opposition has already indicated in the other place, Labor is supportive of toughening the legislative framework governing child protection in New South Wales. This remains a top priority for members on this side of the Chamber. We want to see every loophole closed without question to ensure that Working With Children Checks continue to function as an effective safeguard to prevent unsuitable individuals from obtaining paid or unpaid work relating to children. The safety of children must always remain above partisan politics. The Parliament has an overriding obligation to ensure that legislation is passed to ensure that the child protection framework remains as fit for purpose as possible to keep children safe from harm. 

As the Minister indicated in his second reading speech, and the Parliamentary Secretary in this place indicated in her second reading speech the Child Protection (Working with Children) Act was amended recently, in 2015. During the contribution by the relevant shadow Minister in the second reading debate on that bill, the Opposition flagged concerns about a number of reported cases in which individuals who had committed serious offences had been able to appeal the decisions of the Office of the Children’s Guardian to continue working with children. We note that following a concerted campaign by the Opposition, the Minister took on board those concerns and they were subsequently incorporated into the bill. 

The commonsense amendments that the shadow Minister had drafted and provided to the Minister were incorporated in the Government’s thinking. Those amendments have prevented individuals convicted of murder or the indecent or sexual assault of children from appealing a decision to the NSW Civil and Administrative Tribunal [NCAT]. While the loophole allowing child murderers to appeal a decision that bars them from a Working With Children Check clearance has been closed, the Minister has indicated his opposition to preventing child murderers from caring for children in the future. Other States such as South Australia have enacted such legislation. 

In debate on this legislation in the other place the shadow Minister foreshadowed that the Opposition would propose a series of commonsense amendments to this bill. They were, in fact, proposed in the other place but unfortunately were voted down. Those amendments were drafted to ensure the safety of children and young persons on school grounds. I will return to those concerns shortly. I indicate for the benefit of members in this House that the Government will be given another opportunity to embrace those commonsense amendments in this place, as members would expect. We could not let the Minister’s truculence and short-sightedness turn against the public interest. We will allow the Government the opportunity to reflect and repent. 

These amendments will enable the Children’s Guardian to cancel a clearance if the holder of a clearance fails without reasonable excuse to provide further information in relation to the clearance within three months to the Children’s Guardian requesting the information. The bill will also amend section 24 of the Child Protection (Working with Children) Act 2012 to require a holder of a clearance to obtain the consent of the Children’s Guardian before surrendering the clearance. The Children’s Guardian may not consent to the surrender of that clearance if he or she is of the opinion that it is likely there is a risk to the safety of children. 

Schedule 1 to the bill will further amend section 26 of the Child Protection (Working with Children) Act. If a person is subject to an equivalent order from another State or Territory jurisdiction then that person will not be entitled to apply for a review or enabling order for the length of the equivalent order. The bill will amend section 35 of the Child Protection (Working with Children) Act so that agencies will not be required to report on serious physical assault or sexual misconduct matters that occurred prior to 1995 unless required by the Children’s Guardian. This is due to a transitional regulation to the same effect which expires on 29 October this year—only a few days away. The insertion of proposed section 45A into the Act will make it an offence for an individual to knowingly provide false or misleading information to the Office of the Children’s Guardian whilst applying for a clearance. This offence will be punishable by a maximum of five penalty units. 

Schedule 2 to the bill amends the Children and Young Persons (Care and Protection) Act 1998. The proposed amendments to that Act will enable the Children’s Guardian to enter and inspect any premises other than a dwelling that the Children’s Guardian reasonably suspects is a place at which a person is employing a child in contravention of chapter 13 of the Act. The Children’s Guardian will also have the power to compel an individual to provide information relating to the suspected employment of children. Schedules 3 and 4 to the bill will amend the Teaching Service Act 1980 and the Education (School Administrative and Support Staff) Act 1987. For the purposes of those Acts it is proposed that a person whose clearance is cancelled pending determination of proceedings against a person known as a charged person in this bill is not an unauthorised person until a conviction has been laid against the person as per schedule 2 of the Child Protection (Working with Children) Act. This bill provides for a charged person to be suspended or to be given other non-child-related work until a decision is made. 

It is the Opposition’s understanding that a charged person who is either suspended or dismissed immediately rather than given alternative duties may end up not being convicted. There are examples of charges having been withdrawn by police. If the person has been dismissed they will be unable to continue in their previous employment. We understand that is the reason for this amendment. While it may be more reasonable for the charged person to be given alternative duties than to be dismissed or suspended, we must ensure they are not put in a position where they could—I emphasise “could”—pose a risk to the ongoing safety of schoolchildren. That is why the Opposition amendments should be supported. 

It should be clear that if a member of staff were to be charged either under the Teaching Service Act or the Education Act that person should not be allowed to perform duties on a school site. The bill requires amendment to reflect this commonsense approach. The bill provides that a charged person or teacher as defined in the legislation can pose a risk to children if we do not clarify that the person cannot remain on a school site when that person is given alternative duties. For example, in these circumstances a charged teacher could continue marking while working from home rather than in a school office while children are at the school. A charged person might be transferred to the department or might work from home. The Opposition will move amendments to address that point. 

In the second reading speech, the Government stated that the bill supports the commitment of the Government to keep children and young people safe on an on-going basis. The Opposition, of course, supports that approach, and will hold the Government to account in that regard. 

In his speech, the Minister stated that the amendments made in 2015 provided for the establishment of an expert advisory panel that would provide general advice to the Children’s Guardian, and in particular to the NSW Civil and Administrative Tribunal when it considers matters on appeal. The panel was to include forensic psychologists, psychiatrists, and mental health and other specialists who would provide guidance to the Children’s Guardian and to the tribunal. The Opposition understands that the panel is not presently functioning. It has received 10 applications, but only three have been approved. The panel was announced in September 2015 and the Government has failed to ensure that it is up and running. If that is correct it is a matter of significant incompetence. The Opposition asks the Government to address that matter in its reply in this place.

The Government should explain—the Minister ought to have explained already—why it has taken more than a year to set up a panel of experts to advise on who should or should not be able to work with children. When the welfare of children is at stake delays such as this are not acceptable. When it comes to the safety and welfare of children we cannot afford to let any inappropriate individuals slip through the cracks. We must make sure that the regulatory regime as proposed by Parliament is fully operative. So we ask the Government to support the amendments that the Opposition proposed in the other place, and will again propose in this place, to ensure that persons who are charged are not working on school grounds while waiting for a determination of their charges. The Opposition does not oppose this legislation. We look forward to the debate on the Committee stage of the bill.