QUEENSLAND PARLIAMENTARY LIBRARY -Research Publications and Resources Section- Legislation Note

No 3/99, April 1999 ISSN 1440-5504

FAMILY SERVICES AMENDMENT BILL 1999

PURPOSE OF THE BILL A failure of current procedures in this State to prevent child sex offenders from gaining employment in The purpose of the Family Services Amendment Bill positions where close contact with children occurs 1999 is to assist the Department of Families, Youth was evident in the case of a former Department and Community Care to fulfil its duty to ensure the employee who last year pleaded guilty to 26 child sex protection of children and people with an intellectual offences in the Brisbane District Court.5 One of disability within its care by providing appropriate Raymond John Simpson’s victims had been under his screening procedures for Departmental staff.1 As supervision when Simpson was working for the stated in the Explanatory Notes to the Bill, in order to Department and, at the time of his being charged, effectively achieve this objective, the Department Simpson was also employed at the Basil Stafford requires access to more information about a person’s Centre for disabled people.6 In his time with the background than simply the existence of certain Department, he had twice been subjected to criminal criminal convictions.2 Hence, the Bill is designed to history checks but no problems were revealed.7 The provide that additional information, including the Criminal Justice Commission Report on an Inquiry existence of any criminal charges ever laid against a Conducted by the Honourable DG Stewart into person and of any police investigation into a serious Allegations of Official Misconduct at the Basil offence which may involve the person in question. Stafford Centre also indicated a need to ensure the BACKGROUND suitability of workers caring for people with intellectual disabilities.8 Since the establishment in 1994 of the Royal Commission into the Police In addition, the Government argues that this Bill will Service, conducted by the Hon Justice JRT Woods, allow the Department to be able “to confirm or public and media discussion around the issue of child correct information received regarding a current sexual abuse occurring within the community has employee concerning charges brought against them or their criminal history”, a power which is currently been ongoing. Included in the terms of reference for 9 the Royal Commission was a requirement that it not available to the Department. investigate and report on “the impartiality of the ISSUES ADDRESSED IN THE BILL Police Service and other agencies in investigating and/or pursuing prosecutions including, but not Significant issues are raised by these proposed limited to, paedophile activity”.3 One of “the many amendments for those who seek to be employed by the system deficiencies or complicating factors” which Department. They concern issues of privacy, the the Commission discovered in their investigation was rights of the individual and ensuring an appropriate “the absence of clear and consistent guidelines for balance between employees’ or potential employees’ screening those workers and volunteers who have rights and a child’s right to be protected from harm. close contact with children, or possess care and Determining where this balance falls is an extremely protection responsibilities in relation to them”.4 important question for all concerned. The matters raised by the Royal Commission, and the For the employee or applicant, this Bill will allow the current Forde inquiry, therefore pose serious questions Department access to information about them which for discussion by bodies involved in ensuring the would include the details of any charges ever laid protection of children, including the Queensland against them, even where these charges have not been Department of Families, Youth and Community Care proven in a court. Some commentators have stated (the Department). 1 that such provisions seriously challenge a person’s … it can be a trait of a paedophile that he19 basic right to the presumption of innocence.10 The seeks and attains positions where he can be Minister has acknowledged, in her second reading in contact with, or have influence over, speech, that the potential exists for a person subject to children. Also sad but true is the fact that these provisions not to be protected from the the paedophile may well be extremely disclosure of information which could be “potentially plausible, devious in the exploitation of erroneous”.11 Such disclosures could have a major children, and capable of gulling those caring impact on that person’s ability to gain employment for them and of covering up his activities.20 within the Department. However, it has been asserted In addition, he goes on to say: that this is justified because it is a paramount consideration for the Department to ensure the … once a person engages in an act of protection of their vulnerable clients12 and that the paedophilia, there is a great likelihood that safeguards that will be put in place to govern the use he will reoffend, whether with the same or of this information will be sufficient to ensure that another young person. … The probability of natural justice is provided to the person concerned.13 recidivism is accordingly an important factor in the balancing exercise that In support of these proposed amendments, the underlies a fair and responsible approach to Government further points out that convictions in the problem.21 child sex offence cases are difficult to secure14 and, in relation to these offences, it is common to find a It is also necessary to point out that the powers being history of offences being committed over an offender’s proposed by this Bill are already available in relation lifetime. Some of the difficulty in getting a conviction to checking the criminal histories of workers in the arises from the situation that: Education, Public Transport, Gaming and Child Care Sectors and are not subject to the same guidelines · allegations of multiple offences against one being proposed to govern the disclosure of information alleged victim are common. Juries often fail to under this Bill.22 appreciate why children remain close to an offender and remain silent on the abuse;15 WHAT THE BILL DOES · because there is often a multiplicity of victims of Under the Family Services Amendment Bill 1999 the one offender, in order to ensure a fair trial, (Qld), applicants will have to provide written notice of each case is tried separately. This means that any charges against them, as well as any convictions, juries often don’t see an accurate picture of the regardless of the nature of the offence, including the evidence against the accused as each alleged circumstances and details (proposed section 22). incident is viewed alone;16 This includes whether the charge or conviction arises · admissions of guilt are less likely in these cases in Queensland or elsewhere.23 However, the and, therefore, the case often relies solely on the information that will be provided by the testimony on a child who can expect to face “a Commissioner of Police also includes notice of the broad ranging and sustained attack” on their 17 existence of any investigations into serious offences credit as a witness; and that may have been committed by the applicant · even though the requirement for corroboration of (proposed section 26). Staff members of the a child’s evidence and the attached warning of Department will also need to disclose any charges or convicting on such evidence alone has been convictions against them (proposed section 23). dispensed with, the reality is that a warning that a Additionally, clause 20 states that the Criminal Law jury should “scrutinise the evidence of a child (Rehabilitation of Offenders) Act 1986 (Qld) does not with great care” is almost invariably given. affect any provisions in this Bill. This means that Juries can often read such warnings as an applicants for employment or employees with the indication from the judge as to the poor state of Department must disclose all convictions, including 18 the prosecution’s evidence against the accused. spent convictions, to the Department. These In his Report, Justice Woods discussed the nature of provisions will also cover any volunteers or work 24 child sexual abuse and stated that authorities must experience students working for the Department. learn to take this into account when developing However, evidence of the existence of an investigation policies to cope with the problem. He states that being conducted does not need to be provided where it often: is unlikely to lead to a person being charged with a serious offence, or where to do so could prejudice an 2 ongoing investigation, identify an informant or affect opportunity” to respond to that information the safety of a police officer, complainant or other (proposed section 29(2)). The guidelines themselves person (proposed section 26(4), (5)). A serious state that it is proposed that these checks will only be offence is defined in clause 4 to include “serious undertaken by the Department on the preferred violent offences, such as incest, rape and applicant or applicants.28 The selection committee manslaughter, as well as the offence of possessing will also be limited to questions regarding the person’s dangerous drugs”.25 criminal history where they “directly relate to the nature of the work undertaken by the Department”.29 Prosecuting authorities (ie the Queensland Police Service and the Director of Public Prosecutions) must The Draft Guidelines also set out some general also notify the Department where they are aware that principles to be followed in this process and the a person is an employee of the Department and that factors required to be considered when assessing person is being committed to stand trial on an prospective employees with a criminal history. indictable offence, has been convicted of such an Offences of a sexual or violent nature perpetrated offence or where that person has been acquitted, there against a child or a person with an intellectual has been a mistrial or the prosecution process has disability will preclude a person from any employment otherwise ended. All communications must occur with the Department.30 Certain offences will only within 7 days (proposed section 27). automatically preclude the person from any job or placement where they would be working with the Disclosures by employees or prospective employees Department’s vulnerable clients.31 The existence of should not be “false, misleading or incomplete in a any other offences should be “an indicator that material particular” or must be made in good faith, careful assessment is required in order to determine that is, where the person informs the Chief Executive whether or not a person presents an unacceptable how a disclosure made may be “false, misleading or risk to vulnerable clients”.32 The overriding incomplete” and attempts to provide the correct consideration will always be given to the safety and information (proposed section 25). well-being of children and clients with an intellectual The Bill proposes to allow the Department to access disability.33 this information from the Commissioner of Police The factors to be considered include: (proposed section 26). Where they are interstate or international convictions (which are flagged on the · the nature and seriousness of the offence; record), the applicant or employee will be requested to · the relationship of the offence or alleged provide the details themselves.26 offence to the particular job or placement for which they are being considered. Where the DRAFT GUIDELINES employment involves contact with the As the Minister stated, because of the nature of the Department’s vulnerable clients, a person is information provided and in recognition of the prevented from working in that position where potential harm for the person where the information the offence involves violence, including disclosed by the provisions of this Bill is potentially assaults and robberies, repeated illicit drug erroneous, “…there is a need for procedures to be use or drug related offences involving the put in place to ensure the use of this information [is] possession, distribution or trafficking of a matter of public accountability, [and] decision- illegal substances; making processes … [are] … transparent and fair”.27 · whether the charge resulted in a conviction The Bill therefore requires the Department to establish and what were the considerations involved; guidelines to govern the use of this information, · the length of time since the offence or alleged including ensuring that there is natural justice for all offence occurred; applicants (proposed section 31). Stringent · the number of offences or alleged offences confidentiality provisions are also provided for in the committed which may establish a pattern of Bill (proposed section 30). Information obtained behaviour which renders the applicant about a person under the Bill will only be able to be unsuitable; used to determine the person’s suitability for · whether the offence or alleged offence was employment with the Department (proposed sections committed as an adult or a juvenile; 28(2) and 31(2)(b)). The applicant must be told what information has been supplied by the Queensland · the nature and severity of the punishment Police Service and be given a “reasonable imposed; 3 · the general character of the applicant since

the offence or alleged offence was committed, 18 Cunneen, pp 42-43. especially references given by those with 19 While the paedophile is generally a male, this is not knowledge of the offence or alleged offence; necessarily always the case. See New South Wales · whether the offence or alleged offence is still Royal Commission into the NSW Police Service, p 561. 20 considered a crime; New South Wales. Royal Commission into the NSW Police Service, p 561. · past practices governing the charging of 21 New South Wales. Royal Commission into the NSW persons with certain offences; and Police Service, pp 561-562. · other factors, including “provocation, peer 22 Explanatory Notes, p 3 and Hon AM Bligh MLA, pressure and the effect of alcohol”. p 739. 23 However, “the effect of alcohol is not See definition of ‘criminal history’ in clause 4 of the considered an extenuating factor in relation Family Services Amendment Bill 1999 (Qld). 24 See definition of ‘engaged by the Department’ in to a sexual offence”.34 proposed section 18(2). Copies of all decisions, whether to engage or not on 25 Hon AM Bligh MLA, p 738. the basis of the existence of a relevant criminal 26 Queensland. Department of Families, Youth and history, will be sent to the Department’s Workplace Community Care, HRM Guidelines and Procedures: Relations Section where they “will keep a confidential Criminal History Checks (Draft), Brisbane, March 1999, p 3. central database on all decisions, so as to guide 27 Hon AM Bligh MLA, p 738. future decisions made and promote departmental 28 Queensland. Department of Families, Youth and 35 consistency”. Community Care, HRM Guidelines and Procedures, p 2. 29 1 Explanatory Notes, Family Services Amendment Bill Queensland. Department of Families, Youth and 1999 (Qld), pp 2-3. Community Care, HRM Guidelines and Procedures, 2 Explanatory Notes, pp 1-3. p 2. 30 3 New South Wales. Royal Commission into the NSW Queensland. Department of Families, Youth and Police Service, Final Report, Volume IV: The Community Care, HRM Guidelines and Procedures, Paedophile Inquiry, , August 1997, p 572. p 2. 31 4 New South Wales. Royal Commission into the NSW Queensland. Department of Families, Youth and Police Service, p 606. Community Care, HRM Guidelines and Procedures, 5 Byron Vale, ‘Inquiry into hiring of abuser as youth p 2. 32 aide’, Courier Mail, 28 November 1998, p 16. Queensland. Department of Families, Youth and 6 Vale, p 16. Community Care, HRM Guidelines and Procedures, 7 Byron Vale and Jacob Greber, ‘Youth aid predator p 2. 33 jailed for 14 years’, Courier Mail, 26 November 1998, Queensland. Department of Families, Youth and p 3. Community Care, HRM Guidelines and Procedures, 8 Queensland. Criminal Justice Commission, Report on p 3. 34 an Inquiry Conducted by the Honourable DG Stewart Queensland. Department of Families, Youth and into Allegations of Official Misconduct at the Basil Community Care, HRM Guidelines and Procedures, Stafford Centre, Brisbane, March 1995, specifically pp 3-4. 35 pp 322-325. Queensland. Department of Families, Youth and 9 Explanatory Notes, p 2. Community Care, HRM Guidelines and Procedures, 10 Vale, p 16. p 5. 11 Hon AM Bligh MLA, Second Reading Speech, Kelly-Anne Collins Queensland Parliamentary Debates, 24 March 1999, Research Publications and Resources Section p 738. ã Queensland Parliamentary Library, 1999 12 Explanatory Notes, p 4. PARLIAMENT HOUSE 13 Hon AM Bligh MLA, p 738. GEORGE & ALICE STS 14 BRISBANE 4000 QLD Hon AM Bligh MLA, p 737. 15 Margaret Cunneen, ‘Problems in the Prosecution of Fax (+617) 3210 0172 Paedophiles’, in Paedophilia: Policy and Prevention, Tel. (+617) 3406 7199 Research and Public Policy Series No 12, Australian This Legislation Note was prepared to assist Members in their consideration of the Bill in the Queensland Legislative Assembly. It should not be considered as a complete Institute of Criminology, Canberra, September 1997, guide to the legislation and does not constitute legal advice. The Note reflects the legislation as introduced. The Queensland Legislation Annotations, prepared by the pp 39-40. Office of the Queensland Parliamentary Counsel, or the Bills Update, produced by the 16 Cunneen, pp 40-41. Table Office of the Queensland Parliament, should be consulted to determine whether 17 the Bill has been enacted and if so, whether the legislation as enacted reflects Cunneen, pp 41-42. amendments in Committee. Readers are also directed to the relevant Alert Digest of the Scrutiny of Legislation Committee of the Queensland Parliament. 4

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