Working with Vulnerable People Act Legislative Review 2017 Executive Summary Introduction The Legislative Review of the Working with Vulnerable People (Background Checking) Act 2011 (the Legislative Review) presents the opportunity to examine the effectiveness of the Working with Vulnerable People (Background Checking) Act 2011 (the Act) and its administration through the Working with Vulnerable People (WWVP) Scheme (the Scheme). The Act covers an extensive of services and activities and sets out the legislative and operational framework to undertake background checking as a risk assessment for people seeking to undertake regulated activities with children and/or vulnerable people. The Act continues to be rolled out across the ACT over its six-year implementation phase and a review of the Act is timely, as well as being a legislative requirement, so that issues can be addressed prior to the full operation of the Scheme. Overview of the Working with Vulnerable People (Background Checking) Act 2011 The policy intent of the Act is to reduce the risk of harm to vulnerable people by preventing contact with people who have a history of inappropriate behaviour or who have not been assessed for suitability. It makes provision for the registration of all individuals who work or volunteer with vulnerable people in certain regulated activities. The exclusion of people with a known history of certain behaviour is a fundamental part of creating safe environments for vulnerable people. The premise of background checking is that the past behaviour of an individual can provide an indication of the possible future behaviour of that individual. Examples or patterns of abusive or inappropriate behaviour can sometimes be evident in information available for assessment, which includes an individual’s criminal record.
greater leeway to propose less-restrictive conditions on a registered person while their additional risk assessment is undertaken. This process will help mitigate potential risk to vulnerable people by imposing conditions on the registered person, such as supervised activity, while not prohibiting the registered person in engaging in paid employment while the risk assessment process is completed. Introduction of disqualifying offences This recommendation to address administrative pressures on the Scheme and to strengthen protections for vulnerable people by introducing disqualifying offences. It seeks to exclude people from applying for the Scheme who present an unacceptable level of risk to vulnerable people due to prior criminal history. There is a high administrative burden associated with background checking people who have applied under the Scheme but who, because of their prior criminal history, will never be granted registration. While low in numbers, the administrative processing of these applications is disproportionate to the level of protection afforded vulnerable people, as the outcome for people with these offences will be the issue of a negative notice. The introduction of disqualifying offences will create administrative efficiencies in the administration of the Scheme through a reduction of risk assessments. Disqualifying offences that are consistent with those of other jurisdictional schemes establish a The risk to vulnerable people is currently mitigated by the Scheme by imposing conditions or issuing a negative notice to people identified as posing an unacceptable level of risk to the Scheme. This protection could be heightened by preventing people with certain offences from applying at all. This would also ease the administrative burden on Access Canberra by reducing the high administrative burden of undertaking very complex risk assessments unnecessarily. Currently, there is no automatic exclusion from the Scheme for individuals who have committed certain serious offences. All applications must be considered against the Risk Assessment Guidelines using “Table 1. Relative Severity of Offence Categories” and “Table 2. Summary of Factors Considered by the Commissioner”. Table 1 provides a tool to guide how severe an offence is and how the offence should be treated (i.e. for a sexual offence against a child the offence should be treated with a negative notice unless otherwise satisfied). This recommendation also aligns with findings from the Royal Commission and is consistent with national work required to move towards a harmonised approach to jurisdictional background checking schemes. NSW, QLD and VIC background checking schemes all have disqualifying offences, although there is currently no AGREE TO SEEK HUMAN RIGHTS ADVICE AND PROGRESS OPTIONS Further community consultation is considered necessary regarding this recommendation. Consideration of human rights implications will also be required.
clear deterrent to perpetrators seeking to move into the ACT. is national work being progressed as part of the harmonisation of WWCC schemes that the ACT will be able to leverage off to establish consistent definitions of disqualifying offences. Implementation of this recommendation should consider feedback from the community to ensure disqualifying offences are consistent with the principles of rehabilitation and that people with court ordered Community Service Orders are not denied volunteer placement in community organisations. Human rights advice on the implications of this recommendation will also need to be considered in implementation. consistency across jurisdictions in the offences. SA, TAS, NT and WA do not have any disqualifying offences, although these jurisdictions have agreed to progress work towards harmonising Working with Children’s Check schemes, a key component of which will be the development of consistency in definitions across jurisdictions. With a view to aligning ACT legislation with at a national it is recommended that this amendment be agreed inprinciple but action deferred until the national policy is delivered. With consideration of the findings of the Nous Report, the intent of the scheme is to protect vulnerable people from harm and not ensure that all individuals can engage in an activity or service of their choosing, particularly if they are assessed as posing an unacceptable level of risk. The human rights, natural justice and procedural fairness concerns can be balanced by complementing this provision with an appeals review process in the ACT Civil and Administrative Tribunal (ACAT). Restrict who may apply for a registration based on the regulated activity or level of contact that the applicant is undertaking. 17 This proposed recommendation may give Access Canberra the opportunity for applications to be rejected/declined based on: Timing and roll out of regulated activities; or If the Commissioner believes that a person does not require a registration; or Require an applicant to be supported by an employer prior to lodging an application. This recommendation is unlikely to be commonly adopted, given the portability of the Scheme is designed to enable people to register for the Scheme and undertake multiple regulated activities once they have registration. There may be human rights implications in seeking to restrict applications based on the policy settings of the Scheme and further consultation on this matter will be required. AGREE TO SEEK HUMAN RIGHTS ADVICE AND PROGRESS OPTIONS Further community consultation on this recommendation will be required. This includes considering whether there are human rights implications. strengthening information sharing capabilities
At the moment, Access Canberra has experienced some difficulty in being able to provide sufficient evidence that a person engaging in a regulated activity. By providing a more definitive description of when a person is engaged in a regulated activity will add a greater protection to vulnerable people. Currently, there is too much ambiguity in when a person is considered to be engaging in a regulated activity, and what that regulated activity is, which is difficult to defend in court. clarity, the ability to regulate this provision is compromised and places vulnerable people and the government at risk. Who is considered to be an employer 11 Access Canberra has identified an operational and compliance constraint when identifying who an employer is. Stakeholders have experienced confusion who the employer is, and therefore with whom any obligation and liability lies, particularly with multi-layer organisations such as ACT Rugby League. is the need to provide further definition about when an organisation/business is considered to be the employer of a registered person. This will ease confusion in the community who is responsible for the administration and regulation of a registered person and who bears the liability for This will also enhance the compliance capabilities by providing clear information about who is the employer, particularly in multi-layer organisations AMEND It is not considered necessary to undertake further community consultation around this recommendation. Conduct a thorough review of the Risk Assessment Guidelines The Risk Assessment Guidelines (the Guidelines) provide a framework for how a risk assessment should be conducted and provides minimum considerations for the Commissioner. On review, the guidelines are complex and require some refinement to produce a more consistent approach to decision-making and outcomes. External stakeholders and ACAT have also identified concerns regarding the ability to achieve consistency in application and decision making under the current risk assessment guidelines. The Guidelines in current form are complex and open to subjectivity and misinterpretation by decision-makers. It is also proposed the Guidelines be supported with operational policy guidelines for decision-making to complement and strengthen decision making under the revised guidelines. AMEND Further community consultation is considered necessary regarding this recommendation. This work will be progressed as part of the development of a detailed implementation plan for the legislative changes.