Page 2507 - Week 07 - Tuesday, 1 July 2008
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Clause 70.
MS GALLAGHER (Molonglo—Minister for Health, Minister for Children and Young People, Minister for Disability and Community Services, Minister for Women) (5.10): I move amendment No 7 circulated in my name [see schedule 2 at page 2539].
Clause 70 provides a new offence for failing to disclose suitability information in certain circumstances. Clause 70 (4) (b) provides guidance about what is to be reported to the chief executive in order to assess the entity’s honesty and integrity. It is intended to encapsulate offences or findings of dishonesty that may affect the chief executive’s assessment of the entity’s reputation and character.
In the scrutiny of bills report, the committee queried whether the vagueness of the concept of an adverse finding in clause 70 (4) (b) meant that it was not compatible with the Human Rights Act 2004. To address the comments made in this report, the government amendment replaces clause 70 (4) (b) with a requirement on an entity to disclose a conviction or finding of guilt in an offence involving fraud or dishonesty by a court, and an adverse finding against the entity in relation to honesty or integrity, made by a tribunal or an authority or person with the power to require the production of documents or the answering of questions.
DR FOSKEY (Molonglo) (5.12): With respect to the proposed amendment to clause 70 (4) (b), I would have supported the government’s original unamended provision, despite the scrutiny of bills committee’s concerns. It merely put the onus on an entity to be forthright and forthcoming, and to err on the side of disclosure. This is no bad thing. This is an area where the good character and fit and proper person type qualifications are an ongoing requirement, and these provisions appear to be quite reasonable. An adverse finding would merely have had to be reported. The rules of natural justice would, and will still, apply before an adverse finding could be used to disendorse or otherwise adversely affect an entity.
This is an area that calls for complete candour, and I would have thought that the government could make allowances for this heightened responsibility and treat any information received with respect and in the utmost confidence. As it is, the amended clause could well be too narrow, in my opinion. I recognise that the numerous descriptions in clause 65 should capture the overwhelming majority of relevant offences and misdemeanours, but the original clause 70 (4) (b) cast a wider and, in my opinion, a more appropriate net which would capture adverse findings as well as actual convictions. This begs the question: why wouldn’t the government want to know when a court made an adverse finding about an entity?
As it stands, the amended clause 70 (4) (b) excuses an entity from having to reveal if, for instance, they have had a series of serious driving convictions. But serious driving offences could well be relevant to the provision of services by the entity to young people. For instance, I know that taxi drivers and other drivers are required at times to drive some young people to their non-custodial parent.
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