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CLAUSE NOTES
Registration to Work with Vulnerable People Bill 2013
Part 1 PRELIMINARY
Clause 1 Short Title
Provides that the Bill will be cited as the Registration to Work with
Vulnerable People Act 2013.
Clause 2 Commencement
Provides for the Bill to commence on a day or days to be
proclaimed.
Clause 3 Interpretation
Provides a list of definitions to apply in interpreting the Bill.
Clause 4 Vulnerable person defined
A vulnerable person encompasses both `children' and `adults'. This
clause provides that a vulnerable person is a child or an adult
accessing a regulated activity. Children, due to their age, are
necessarily considered vulnerable. An adult is considered to be a
vulnerable person when he or she is accessing a regulated activity.
This definition recognises an adult's changing circumstances as they
will not be considered vulnerable at all times.
Clause 5 Engaged in a regulated activity defined
This clause defines what is meant by the phrase engaged in a
regulated activity. The definition requires contact as defined by
section 6. It also encompasses both paid or unpaid participation,
participation under an arrangement with another person, or
otherwise.
The definition also covers the situation where a person, including a
vulnerable person, is engaged in a regulated activity if the regulated
activity is conducted in residential premises; and the person resides
in the residential premises; and the person, although not taking part
in the regulated activity, may meet or be in the immediate vicinity
of a vulnerable person who is at the premises for the purposes of
taking part in the regulated activity. This reflects parallel legislative
arrangements for family day care.
A `regulated activity' is defined in clause 3 to mean an activity or
service that is prescribed by the regulations to be a regulated activity.
This allows the Governor and Executive Council to declare what is
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and is not a regulated activity.
Clause 6 Contact with a vulnerable person defined
Clause 6 defines what is meant by contact between a person and a
vulnerable person as part of taking part in a regulated activity and
includes physical contact, oral communication, written
communication dealing with a record relating to the vulnerable
person, and making a decision that affects the vulnerable person.
The definition is necessarily broad to encompass the various
situations in which people may have an opportunity to harm a
vulnerable person, either directly, through the misuse of
information, or via a power imbalance.
Clause 7 Employer defined
Clause 7 defines employer for the purposes of the Bill as an entity
for whom a person engages in a regulated activity. This clause also
provides examples of what constitutes an employer. For example,
the person or body who engages volunteers is the `employer' in
that scenario.
Clause 8 Employer not limited to background checks in this Act
Clause 8 clarifies that employers may make background checks
which are additional to those provided for in this Bill.
Clause 9 Employer may require registration
This clause provides that an employer may require an employee to
be registered even if this Act does not require registration. For
example, schools may require employees that are otherwise
exempt from registration to be registered.
Clause 10 Notes and examples
This clause stipulates that notes and examples provided in this Act
form part of the Act, are not exhaustive and may extend, but not
limit, the meaning of the provision in respect of which the note or
example applies.
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Part 2 REGISTRAR
Clause 11 Registrar
Clause 11 provides that a person who is a State Service officer or
employee, may be appointed as Registrar for the purposes of the
Act.
Clause 12 Advisory committees
Clause 12 provides that the Minister may establish advisory
committees and that matters may be referred by the Minister and
Registrar to an advisory committee for consideration and advice.
This clause further provides that the Registrar is the chairperson of
each advisory committee; an instrument of appointment is required
for each member of an advisory committee; and the Minister may
regulate the proceedings of an advisory committee.
Clause 13 Provision of notices by Registrar
Clause 13 stipulates the correct procedures for provision of notices
by the Registrar.
Clause 14 Delegation by Registrar
This clause allows the Registrar to delegate his or her functions and
powers under the Act, other than the power of delegation.
Part 3 REQUIREMENT FOR REGISTRATION
Clause 15 Person required to be registered to engage in regulated
activity
Clause 15 defines close relative, day, emergency, emergency management
worker and school for the purposes of this section. It also provides at
15(2) that `a person is required to be registered to engage in a
regulated activity' with a list of exceptions to this law being provided
for in clause 15(3). Like most provisions in the Bill, this provision is
modelled on the ACT Working with Vulnerable People (Background
Checking) Act 2011 as adapted to suit the Tasmanian situation.
The list of exemptions include: people under 16 years of age; close
relatives of the vulnerable person; persons engaged in the activity
for short periods (as specified); school students on work
experience; police officers; correctional officers; registered health
practitioners; Australian lawyers; staff members or volunteers for
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an approved provider under the Aged Care Act 1997 (Cth); those
who only have contact with vulnerable people by telephone;
emergency management workers dealing with an emergency; and
people the Minister has declared, by order, not to be required to
be registered for a particular regulated activity (for example, such
as a World Youth Day).
The exemptions for professional groups is limited to when they are
engaged in the activity in the course of their profession. For
example, an on duty police officer does not require registration.
This clause provides notes with examples of what constitutes a
regulated activity for a particular employer for the purposes of the
exemption in relation to persons engaging in an activity for short
periods.
Clause 16 Offence to engage in regulated activity unless registered
Where registration is required, clause 16 creates an offence to
engage in regulated activity without registration, knowingly, or with
reckless disregard as to whether:
registration is required, or
he or she is registered, or
he or she is engaging in a regulated activity.
This offence is punishable by a fine not exceeding 200 penalty units
or imprisonment for a term not exceeding two years. It also
provides an exemption where an unregistered person engages in a
regulated activity under section 18 of the Act (which provides for
supervised engagement in certain circumstances).
The Government would be failing its duty towards vulnerable
people if it did not impose penalties for a person engaging in a
regulated activity without appropriate registration.
Clause 17 Offence for employer to engage unregistered person in
regulated activity
Clause 17 makes it an offence for an employer to engage a person,
or require a person to be engaged in a regulated activity, while that
person is unregistered. This offence is punishable by a fine not
exceeding 50 penalty units. This applies to the scenario where an
employer engages a person for the first time without checking the
person is registered.
This clause also makes it an offence for an employer to engage an
unregistered person in a regulated activity with reckless disregard
for whether or not the person is registered, or for whether the
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employer is engaging the person in a regulated activity. This second
offence is seen as more serious and is punishable by a fine not
exceeding 200 penalty units or imprisonment for a term not
exceeding 2 years, or both. This applies to scenarios including
where an employer becomes aware a previously engaged person is
not registered.
The clause also provides that the section does not apply to an
employer where an unregistered person engages in a regulated
activity for the employer under section 18.
Clause 18 Unregistered person may engage in regulated activity in
certain supervised employment circumstances
Clause 18 provides that an unregistered person may engage in
regulated activity in certain supervised employment circumstances.
It defines eligible person for the purposes of the section and further
provides that an eligible person who has applied for registration
under section 19, and who has not yet been registered, may
perform regulated activities in certain circumstances, including
under the supervision of a registered person.
Part 4 APPLYING FOR REGISTRATION
Clause 19 Application for registration
Clause 19 provides that a person may apply to the Registrar for
registration under the Act using the application form the Registrar
may approve, containing information required under section 20,
accompanied by the prescribed fee and lodged in accordance with
the manner prescribed by the regulations (or in the absence of this,
in a manner approved by the Registrar).
This clause also places limitations on applications for registration by
a person who has been provided with a negative notice or whose
registration has been cancelled.
Clause 20 Contents of application for registration
This clause sets out the requirements for the contents of an
application for registration. These include current and any previous
name and address details, evidence of identity, employer details, the
capacity in which the applicant engages or intends to engage in a
regulated activity for that employer, and any other information
prescribed by the regulations.
This clause also provides for consent by the applicant for the
Registrar: to check their criminal history, non-conviction
information and any other information; to seek information or
advice about the applicant under the Act (section 29 or section 45);
and to contact the specified employer in relation to the status of
the applicants registration. It also provides that information can be
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obtained from listed bodies
In R v Chief Constable of the North Wales Police; Ex parte Thorpe
[2008] EWHC 1870, the United Kingdom High Court (Queens
Bench Division) dealt with an employment screening process that
was not provided for in legislation. The court held that there was a
general presumption against disclosure of criminal history
information unless justified in the circumstances of each case.
Hence, this clause provides for consent to be given for a criminal
history check (and the legislation later provides that criminal history
is to be considered as part of a risk assessment).
The clause further requires a written statement by the applicant
regarding offences committed outside of Australia and any other
document prescribed by the regulations.
Clause 21 Registrar to notify applicant of certain matters
This clause provides that the Registrar must notify applicants in
writing of his or her rights and obligations under the Act, the
information he or she may supply to support the application and of
the risk assessment order.
Clause 22 Requiring additional information
Clause 22 provides that the Registrar may require the applicant to
supply additional information or documentation and that if the
applicant does not comply, the Registrar may refuse to consider the
application further.
Clause 23 Offence to give false or misleading information
This clause creates an offence of giving false or misleading
information in making an application for registration, or in providing
additional information required under section 22.
Clause 24 Offence for applicant to fail to disclose charge or
conviction for relevant offence
Clause 24 makes it an offence for an applicant who is charged with,
convicted of, or found guilty of a relevant offence (subsequent to
lodging an application but before being registered or provided with
a negative notice) to fail to notify the Registrar of this within 10
working days after being charged, convicted or found guilty. The
fine is not to exceed 50 penalty units.
The clause provides for the supply of information that is critical to
the screening process but was not evident or existing at the time of
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the application.
Part 5 RISK ASSESSMENTS
Division 1 Meaning of risk assessment
Clause 25 Risk assessment defined
Clause 25 defines risk assessment to be `an assessment by the
Registrar as to whether the person poses an unacceptable risk of
harm to vulnerable persons, whether by reason of neglect, abuse or
other conduct by the person.' The Note gives examples of types of
harm to a vulnerable person including `sexual, physical, emotional
and financial.'
Division 2 Risk assessment orders
Clause 26 Risk assessment order
Clause 26 provides the Minister with the power to make risk
assessment orders in relation to matters that the Registrar must or
may take into account in relation to the scope of such power.
The purpose of this is to ensure that risk assessments are
conducted with rigorous consistency.
Amongst other things, the clause outlines what the Registrar must
or may take into account in conducting risk assessments; including
the person's criminal history and whether the person has previously
been provided with a negative notice.
This clause also provides that an order: may provide for the making
of submissions to the Registrar in relation to any matter he or she
must take into account in conducting a risk assessment; and may
provide for matters relating to the provision of a proposed negative
notice and reviews of negative risk assessments.
Furthermore, the clause provides that an order is a statutory rule
within the meaning of the Rules Publication Act 1953.
Clause 27 Availability of risk assessment order
Clause 27 stipulates that the Registrar is to make a risk assessment
order available for public inspection and on request is to provide a
copy of a risk assessment order (or part thereof) to the person
who applies for it.
Division 3 Conducting risk assessments
Clause 28 Risk assessments
Clause 28 provides that the Registrar is to conduct a risk
assessment in accordance with the regulations and the risk
assessment order on receipt of an application for registration. The
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regulations and order ensure robustness and consistency in the risk
assessment process.
Clause 29 Registrar may seek information to conduct risk
assessments
Clause 29 gives the Registrar power to seek information from any
entity, including any public authority/body/Government agency
outside of Tasmania (including overseas), in conducting risk
assessments.
It is important that the Registrar can access a broad range of
information so that both risk factors and mitigating factors may be
considered in making a balanced determination.
The clause further provides that if an entity provides information or
advice under this section, it does not contravene any duty of
confidentiality it may have under any law or agreement. The clause
refers to entities, as they are subject to the Act. The provision of
information by bodies outside the Tasmanian jurisdiction are
subject to their own laws.
Division 4 Negative risk assessments
Clause 30 Proposed negative notices
Clause 30 outlines the required process for giving a negative notice
following a risk assessment in which the Registrar is satisfied that
the person posed an unacceptable risk of harm to vulnerable
persons.
The person must be notified in writing with reasons for the
Registrar's intention to refuse registration and has a right to
reconsideration by the Registrar within 20 working days of
receiving notice. If the person does not request reconsideration,
the Registrar must provide the person with a negative notice.
The clause also provides that the Registrar is not to notify a named
employer of the proposed negative notice or reasons for it. This
prevents the inappropriate disclosure of protected information
concerning the applicant.
Clause 31 Extension of period to request reconsideration of negative
risk assessment
Clause 31 provides for the process to extend the period to request
reconsideration of a negative risk assessment. The period can be
extended only once for a period of 20 working days.
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Clause 32 Refusal to register a person and negative notices
Clause 32 provides that the Registrar is to refuse to register a
person if he or she reconsiders a negative risk assessment at the
request of a person provided with a negative notice; and, is satisfied
the person poses an unacceptable risk of harm to vulnerable
persons generally. In the scenario that a person poses a risk in
relation to some regulated activities, but not others, the person can
receive a positive risk assessment under section 33.
The clause also provides that the Registrar is to refuse to register a
person, if the Registrar has provided a proposed negative notice to
the person, and the person has not requested a review in the
correct manner.
The clause further provides that notification in writing with
rationale must be provided to the applicant for any refusal to
register. Any employer must also be notified of the giving of a
negative notice, however, the reasons for the negative notice are
not to be provided to the named employer.
Decisions of the Registrar will be made in accordance with the Act,
and its regulations and orders and will be subject to appeal under
the Act.
Part 6 REGISTRATION
Division 1 Registration
Clause 33 Registration
Clause 33 defines `positive risk assessment', as meaning that the
Registrar is satisfied that the person does not pose, or poses an
acceptable risk of harm to vulnerable persons generally, or to
particular classes of vulnerable persons. The clause compels the
Registrar to appropriately register a person for whom a positive
risk assessment has been made and provides for notification of the
person and any named employer. The Registrar is to comply with
any relevant risk assessment order on registering a person.
Clause 34 Term of registration
Clause 34 provides that the term of registration is to be
determined by the Registrar, but is not to exceed three years from
the defined commencement date. The registration period of the
person can commence on the day the person is registered or a
later day as specified. Registrations cannot be indefinite because risk
assessments are conducted as a point-in-time exercise that must be
periodically updated if the registered person's circumstances
change.
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Clause 35 Conditional registration
This clause empowers the Registrar to impose conditions on
registrations. Conditions are available to the Registrar as a means of
addressing any specific risks of harm that a particular applicant may
present. For example, if an applicant has a significant history of
dangerous driving, a condition may be imposed that a registered
person must not drive a motor vehicle with a vulnerable person as
passenger. Conditions could also be used to stipulate that the
registered person may only be engaged by an employer in specified
regulated activities.
The clause further provides that the Registrar may consult with
independent advisors and other persons and consider their advice
before imposing a role-based registration.
For example, a person might hold a registration that is conditional
in only allowing engagement in regulated activities relating to
children, or adults, or both.
Clause 36 Proposed conditional registration
Clause 36 stipulates the process for registering a person
conditionally including notification in writing and provides the
person with the right to request a reconsideration of the
determination to make the registration subject to the condition. To
prevent the inappropriate disclosure of an applicant's protected
information, the clause further provides that the Registrar is not to
notify a named employer that a proposed conditional registration
notice has been given or of the reasons for this.
Clause 37 Extensions of periods for requesting consideration of
proposed conditional registration
Clause 37 provides the Registrar with the power to extend the 20
working day period for requesting consideration of proposed
conditional registration if he or she is satisfied on reasonable
grounds that this is appropriate in the circumstances. Notification
of the Registrar's decision is to be given specifying any time
extension, if an extension is granted, or reasons for refusal if an
extension is not granted.
Clause 38 Reconsideration of proposed conditional registration
Clause 38 provides that the Registrar must reconsider proposed
conditional registration on written request within the relevant
period of 20 working days or as extended under section 37, and is
to take into account any relevant new or corrected information
provided by the person. After reconsidering the determination to
make registration subject to a condition, the Registrar may decide
to register the person unconditionally or register the person
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subject to a condition depending on whether the Registrar
determines that the condition is necessary.
Clause 39 Registration after proposed conditional registration notice
Clause 39 provides that if a person does not request a
reconsideration of conditional registration within the relevant
period of 20 working days or as extended under section 37, then
the Registrar is to register the person subject to a condition. After
reconsideration of proposed conditional registration, the Registrar
is to register a person subject to a condition if the Registrar
determines that the condition is appropriate, and is to register a
person without that condition if the Registrar determines that the
condition is inappropriate. The Registrar must notify the person in
writing of registration, any conditions and reasons for the
conditions. The Registrar must notify any named employer in
writing of the person's registration and any conditions on
registration.
Clause 40 Amendment of conditional registration
Clause 40 provides the procedure by which conditional registration
can be amended and gives the Registrar the power to amend or not
to amend the registration and provides requirements for the
Registrar to notify the applicant and any named employer of any
changes.
For example, a person registered with a condition limiting the
person's engagement to child-related activities may later seek an
amendment to allow engagement with adult-related regulated
activities.
Clause 41 Offence for registered person to contravene condition of
registration
Clause 41 creates an offence for a registered person to contravene
a condition of registration which is punishable by a fine not
exceeding 200 penalty units or imprisonment for a term not
exceeding 2 years, or both.
Division 2 Registration cards
Clause 42 Registration card
Clause 42 requires the Registrar to provide the person working
with vulnerable people with a registration card detailing factors
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including the person's name and date of birth, a photograph of the
person's face, a unique identifying number, the date the registration
expires and any other matter prescribed by the regulations.
As conditions of registration may change from time to time, these
will not necessarily be included on the card, but administrative
systems are being considered so that employers can easily check
any conditions on a person's registration.
Clause 43 Replacement registration cards
Clause 43 provides for application and issue of a replacement
registration card where a card is lost, stolen, destroyed or
damaged.
Clause 44 Surrender of registration card
This clause provides for the surrender of a registration card within
10 days of cancellation, and makes it an offence to fail to do so,
unless the card was lost, stolen or destroyed.
Division 3 Monitoring registered persons
Clause 45 Registrar may obtain information from entities about
registered people
Clause 45 gives the Registrar power to obtain information or advice
from entities, including public authorities/bodies/Government
agencies outside of Tasmania (or Australia) about whether a
currently registered person poses a risk or an acceptable risk of
harm to a vulnerable person. The clause also provides that in
providing such information, an entity (that is, an entity subject to
Tasmanian law) does not breach any duty of confidentiality.
Clause 46 Additional risk assessments
Clause 46 provides that additional risk assessments may be carried
out if the Registrar believes that there is new relevant information
about a registered person. The Registrar can leave a person's
registration unchanged, add or amend a condition of registration or
remove a condition of registration, depending on whether he or
she determines that the person poses an unacceptable or
acceptable risk or no risk of harm to a vulnerable person. Sections
36, 37 and 38, which relate to notification of proposed conditional
registration and reconsideration terms, apply. The section also
provides that the Registrar may proceed under section 50 and 51
to cancel the person's registration if he or she is satisfied that the
person poses an unacceptable risk of harm to a vulnerable person.
For example, a person registered with conditions allowing more
than one regulated activity to be engaged in might have their
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conditions amended to reduce the number of allowed regulated
activities. If the person posed an unacceptable risk of harm in
relation to all the activities allowed by their registration, the
registration may be cancelled.
Clause 47 Offence for registered person to fail to disclose charge,
conviction or finding of guilt for relevant offence
Clause 47 creates an offence for a registered person to fail to
disclose a charge, conviction or finding of guilt for a relevant offence
and sets the process of notification. The offence is punishable by a
fine not exceeding 50 penalty units.
Clause 48 Offence for registered person to fail to notify change of
name or address
Clause 48 creates an offence for a registered person to fail to notify
the Registrar of change of name or address and establishes the
process of notification. The offence is punishable by a fine not
exceeding 10 penalty units.
Division 4 Suspending or cancelling registration
Clause 49 Grounds for suspension or cancellation of registration
Clause 49 provides grounds for suspension or cancellation of
registration, including cases where a person has contravened a
conditional of registration, during the period in which an additional
risk assessment is being conducted and following an additional risk
assessment where the Registrar is satisfied that the person poses an
unacceptable risk of harm to a vulnerable person.
Clause 50 Notice of proposed suspension or cancellation of
registration
Clause 50 establishes the process for notification by the Registrar
to a registered person of the intention to suspend or cancel the
person's registration. The notice must set out grounds for
suspension or cancellation and the person has a right to provide
reasons as to why the registration should not be suspended or
cancelled.
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Clause 51 Suspension or cancellation or registration
Clause 51 sets out the circumstances in which the Registrar is to
suspend or cancel a person's registration, including notice
provisions to any known employer of the person to whom the
registration is relevant.
Division 5 Surrendering registration
Clause 52 Surrendering registration
Clause 52 sets the process by which a registered person may
surrender his or her registration. This includes providing a notice
of surrender together with his or her registration card or a written
statement stating the card has been lost, stolen or destroyed if this
is the case. This clause also provides that the surrender of
registration takes effect either on the day the notice of surrender
and registration card is provided to the Registrar, or at a later date
as provided for. On surrender of registration the Registrar is to
notify the person's relevant employers in writing of that surrender.
Part 7 NOTIFICATION AND REVIEW OF DECISIONS
Clause 53 Review of decisions
Clause 53 defines reviewable decision to mean: a refusal under
section 32 to register a person; the registration under section 39 of
a person subject to a condition; the refusal under section 40(5)(b),
the adding of or amendment of a condition to registration under
section 46(3)(b) or (c); the suspension or cancellation under
section 51(1) of a person's registration; the refusal under section
31(3)(b) to extend the 20 working day period specified in section
30(2)(b)(ii); or the refusal under section 37 to extend the 20
working day period specified in section 36(2)(b)(ii).
The clause further provides that a person aggrieved by that decision
may apply for a review of that decision by the Magistrates Court
(Administrative Appeals Division) and makes that decision subject
to the Magistrates Court (Administrative Appeals Division) Act 2001.
Clause 53(3) provides that the review by the Magistrates Court of a
reviewable decision under this Act is to be held in private, unless
the Court orders otherwise under clause 53(4).
Part 8 MISCELLANEOUS
Clause 54 Offence to use or divulge protected information
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Clause 54 defines court, divulge, officer, produce, protected information,
and use information for the purposes of this section, and creates
offences to use or divulge protected information which are
punishable by fines not exceeding 50 penalty units or imprisonment
for a term not exceeding 6 months, or both. The clause also
provides that the offences it creates will not apply if information is
used or divulged under this or another Act or a corresponding law,
or in other listed circumstances.
For example, this allows appropriate disclosures to screening units
in other jurisdictions, if those other jurisdictions make lawful
requests of the Registrar.
Clause 55 Infringement notices
This clause defines infringement offence for the purposes of the Act
and provides that the Registrar may issue and serve an infringement
notice on a person if he or she reasonably believes that the person
has committed an infringement offence. The Regulations made
under this Act may prescribe penalties for infringement offences.
Clause 56 Protection from liability
This clause provides that officials do not incur any personal liability
in respect of any act done or omitted in good faith in the exercise
of duties in the administration of this Act, and defines official for the
purposes of this section.
Clause 57 Exemption from Right to Information Act 2009 and Personal
Information Protection Act 2004
This clause provides that the Right to Information Act 2009 does not
apply to information in the possession of an official, as defined for
the purposes of this section, unless the information relates to the
administration of public authority within the meaning of that Act. It
also provides that the Personal Information Protection Act 2004 does
not apply to the obtaining or possession of information by an official
for the purposes of this Act.
Clause 58 Evidentiary certificates
This clause provides that in any proceedings, the production of
certificates signed by the Registrar stating registration details is
evidence of the matters stated in it.
Clause 59 Approved forms
Clause 59 provides that the Registrar may approve forms for the
purposes of this Act and that such forms are to be used for the
described purpose.
Clause 60 Regulations
Clause 60 provides for the making of regulations for the purposes
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of this Act and without limiting the generality of the power to make
regulations, lists matters the regulations may provide for matters
including setting offences, setting fees, and providing for savings and
transitional matters.
This includes the identification of the activities to be regulated by
the Act.
Clause 61 Administration of Act
Clause 61 provides that until provision is made under section 4 of
the Administrative Arrangements Act 1990, the administration of the
Act is to be assigned to the Minister for Justice; and the department
responsible to that Minister in relation to the administration of this
Act is the Minister for Justice.
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