Page 926 - Week 03 - Tuesday, 29 March 2011
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vulnerable person are also very broad, which leads us to believe that 42,000 people, which is still a substantial number, is a fairly large underestimate.
A person undergoing a risk assessment has to subject themselves to extensive checking, including even when, for example, they are acquitted of an alleged offence which may be considered a relevant offence. Spent convictions are also taken into account. This goes against the maxim of innocent until proven guilty and does raise some human rights considerations. It also denies the person the right to be treated as having done their time for their crime.
I am told that it often is the case that people with a record who have been rehabilitated either through doing time or doing some other program are better workers in relevant activity than those who do not have a record. Under this legislation the commissioner in the Office of Regulatory Services, by notifiable instrument, will be required to make risk assessment guidelines. Given the extent to which the bill engages the Human Rights Act, it is the view of the Canberra Liberals that these guidelines should be made at ministerial level and be reviewable by the Assembly. I am considerably concerned about these guidelines in the current legislation only being notifiable instruments.
The matters that must be taken into account and included in the assessment guidelines in relation to criminal history, non-conviction information and other information set out in sections 27 to 29 require a considerable amount of subjective judgement on the part of the commissioner. I have received a copy of the draft guidelines courtesy of Ms Bresnan. I note that the minister has not herself extended the courtesy of providing a copy of the draft guidelines that only became available late last week to the opposition. In addition, particularly in relation to non-conviction information, there is a sense in this legislation of being guilty until proven innocent in the assessment process.
During the process of consulting on this bill, I invited comment from a wide range of organisations in the community sector. It is true to say that there is broad support for the philosophy of what this legislation is seeking to do, but some organisations have expressed concern about its administration and implementation. Most are taking a proactive approach to their concerns and I understand that the government is working with those communities.
In scrutiny report No 27, the scrutiny committee was critical of the lack of discussion in the explanatory statement on the human rights implications of the legislation. It went to some length to outline the areas within the bill which had the potential to impact on human rights. Those discussions mainly related to people who have to go through an accreditation process and their right to privacy.
The scrutiny of bills committee noted that the breadth of the definition of a vulnerable person would impact on the extent to which people’s right to privacy might be impacted and called on the minister to comment on whether the definition should be less comprehensive. The breadth of occupations and services too will mean that many more people than perhaps is necessary will have to apply for accreditation. The committee says that the minister should respond to that.
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