Working with Vulnerable People (Background Checking) ACT 2011
The Working with Vulnerable People (Background Checking) Bill 2010 (WWVPCS) was tabled in the ACT Legislative Assembly in August 2010. Throughout its development and the Bill’s supporting legislation, the ACT Government has continued to consult with stakeholders. Comments received have been used in assisting to shaping the Act and were compiled in the Consultation Report “A Working with Vulnerable People Checking System for the ACT”.
The Bill was passed by the ACT Legislative Assembly in October 2011 with the Working with Vulnerable People (Background Checking) Act 2011 , but the actual commencement of the checking scheme was on 8 November 2012 requiring certain employees and volunteers who work, or seek to work, with children or vulnerable adults to undergo a criminal record check and other background checks. Therefore, the individuals working or volunteering in ‘Activities or Services for Children’ having until 7 November 2013 to become registered.
The first republication of the Working with Vulnerable People (Background Checking) Act 2011 (including any amendment made under the Legislation Act 2011, part 11.3 (Editorial changes)), as in force since 8 November 2012, also includes any commencement, amendment, repeal or expiry affecting this republished law to 8 November 2012.
The second republication of the Working with Vulnerable People (Background Checking) Act 2011 (including any amendment made under the Legislation Act 2011, part 11.3 (Editorial changes)), as in force since 14 June 2013, also includes any commencement, amendment, repeal or expiry affecting this republished law to 14 June 2013.
ATODA reminds stakeholders that the system is being implemented in a staged approach over several years. The ATOD sector, referred to as “addiction services” in the ACT, does not come under the legislation until the fifth year, after a review has been conducted. Note: if your service works across areas, e.g. under 18 and ATOD, then the system will apply from 8 November 2013. If you are not sure if the system applies to your service email wwvpcs@act.gov.au or visit www.ors.act.gov.au/community/working_with_vulnerable_people
For further information please contact Carrie Fowlie, Executive Officer, on carrie@atoda.org.au or (02) 6255 4070.
ATODA supports the intentions of the Bill (“to protect vulnerable people”), however we believe the Bill is a blunt legal instrument that includes broad powers that are disproportionate to the ends of protecting vulnerable adults from harm and could have a disproportionate impact on the ATOD sector. ATODA supports appropriate and rigorous risk management practices to protect vulnerable adults, and acknowledges that social policy reform in this area is inevitably a balancing act.
However, under the currently proposed checking system, the objective of protecting vulnerable service users may be unnecessarily in conflict with the objectives of encouraging a diverse and experienced community sector workforce – and could risk crippling our workforce.
The challenge for the proposed legislation is to ensure people are not penalised, in terms of their access to employment, for their past behaviour that bears little or no relevance to the risk they pose to the vulnerable people they may work with now or in the future.
ATODA and the MHCC ACT (www.mhccact.org.au) have significant concerns regarding the Bill. The intentions underlying the WWVPCS have the broad support of the sectors, but we remain concerned that some aspects of the proposed system may affect the viability of the community ATOD and mental health workforces, organisations and sectors.
As the proposed checking system is the first in Australia to extend to people working with adult clients, it is important the ACT Government use all the consultative mechanisms available to it to ensure it is the most effective way to move forward and has the support of the stakeholders to which it applies. It is particularly important to ensure engagement of those it may unintentionally negatively affect.
The ATOD and mental health peaks, workers, organisations and employers are essential partners to ensure the success of the WWVPCS. We continue to work collaboratively and constructively with the ACT Government to ensure that this legislation meets its objectives and does not have unintended consequences on the people it is seeking to protect.
We acknowledge that we, and other stakeholders, are engaged in opportunities to shape the implementation of the Bill. We want to work with the ACT Government to protect vulnerable people, to support vulnerable people to access employment, and to support a viable community sector.
ATODA and the MHCC ACT have continued to engage in significant representation with the Minister for Community Services, the Minister for Health, the Directorate of Community Services, the Office of Regulatory Services and other stakeholders regarding concerns and to collaboratively develop solutions.
Staged Approach to Implementation
In light of concerns, ATODA and MHCC ACT have requested that the system be implemented in stages – with the ATOD and mental health sectors to be included following an evaluation / review. The Minister for Community Services has indicated her support for this approach. ATODA will continue to work with the ACT Government, the sector and stakeholders to ensure that when the ATOD sector is staged in, that the system and the sector will work effectively with minimal disruption.
Submission to Community Services Directorate – “Concerns with the Working with Vulnerable People (Background Checking) Bill 2010 Proposed Regulations”
(July 2011)
Letter to Minister for Community Services and Minister for Health – “Offsetting the potential for discrimination of the Working with Vulnerable People (Background Checking) Bill 2010 by implementing a staged approach”
(June 2011)
Submission to the Community Services Directorate – “Comments on the draft supporting documentation regarding the Working with Vulnerable People Checking System”
(June 2011)
Letter to Minister for Community Services – “Summary of Problems and Solutions for the ATOD and Mental Health Sectors regarding the Working with Vulnerable People (Background Checking) Bill 2010”
(March 2011)
Submission to Community Services Directorate and Office of Regulatory Services – Follow up Comments on the Draft Risk Assessment Guidelines for the Working with Vulnerable People (Background Checking) Bill 2010
(March 2011)
Submission to Community Services Directorate and Office of Regulatory Services – Ongoing Concerns with the Working with Vulnerable People (Background Checking) Bill 2010 and Comments on the Draft Risk Assessment Guidelines
(February 2011)
ATODA Submission to the ACT Budget – “Supporting a viable ATOD sector and workforce by implementing the Working with Vulnerable People (Background Checking) Bill 2010”
(December 2010)
Letter to Minister for Community Services – “Outstanding Concerns regarding the Working With Vulnerable People (Background Checking) Bill 2010”
(November 2010)
Letter to Minister Burch – “Working With Vulnerable People Checking System (WWVPCS) Bill Roundtable”
(September 2010)
Letter to Minister Burch – “Outstanding Concerns Regarding the Proposed Working With Vulnerable People Checking System (WWVPCS) Bill”
(August 2010)
Letter to Department of Disability, Housing and Community Services – “Potential Unintended Consequences of the Working With Vulnerable People (WWVP) Checking System on the Workforce”
(June 2010)
For further information about these documents please contact Carrie Fowlie, Executive Officer, on carrie@atoda.org.au.
ATODA and MHCC have sought to inform stakeholders of developments throughout the policy and legislative development process.
June 2011 Update (includes legal advice summary)
March 2011 Update
Legal advice was sought from the Public Interest Law Clearing House (PILCH) regarding the Bill. They provided advice about the potentially discriminatory nature of some aspects of the legislation. A summary of the legal advice is below.
Potential for discrimination
The legal advice obtained through PILCH states that the Bill and the risk assessment guidelines are broad enough that there is the potential for individuals to be discriminated against on the basis of spent convictions and mental illness.
Discrimination is unlawful
The Discrimination Act 1991 (ACT) and the Disability Discrimination Act 1992 (Cth) both provide that discrimination on the basis of spent convictions or a disability such as a mental illness is unlawful.
Exemptions for acts done under statutory authority
Both the ACT and Commonwealth Act include exemptions for discriminatory acts that are done under statutory authority, in compliance with a requirement of a valid law. That means that acts which would ordinarily constitute unlawful discrimination, would be lawful in this context because a valid ACT law authorises that discrimination.
In effect, the Bill potentially authorises discrimination (by the ACT Government) against people on the basis of spent convictions or mental illness where these factors form the basis for refusing to register an individual under the Bill.
The Community Services Directorate conducted a final round of consultations for the Working with Vulnerable People (Background Checking) Bill 2010 (WWVPCS) from 1 August – 9 September 2011.
Further information
An Information Book, developed by the Community Services Directorate, is available and provides answers to questions raised by stakeholders to date. Information can be found at www.dhcs.act.gov.au/home/publications/wwvpc. Please contact Jean Thomson, Policy Manager, Community Services Directorate on (02) 6205 8329 or workingwithvulnerablepeople@act.gov.au for further information. The Bill is available from the ACT Legislation Register at www.legislation.act.gov.au
ATODA’s submission
Download ATODA’s submission to the final round of consultations here.
The ACT Government is seeking to establish a centralised background checking and risk assessment system for people working with vulnerable people to reduce the risk of sexual, physical, emotional or financial harm or neglect – the Working with Vulnerable People Checking System.
The purpose of the Bill is to reduce the risk of harm to vulnerable people by establishing a mandatory background checking and risk assessment system for people working with vulnerable people in the ACT.
The scheme is based on the premise that there are similarities in the risk of harm faced by children and vulnerable adults – the ACT proposes to extend the checking system to include people working with vulnerable adults.
Under the new scheme the ACT Government will set minimum and compulsory checking standards and will apply a consistent risk assessment framework and decision making process. Employees and volunteers would be able to move between organisations without being rechecked.
The Directorate of Community Services and the Office of Regulatory Services have been leading the development of the Bill and the associated policy and documentation.
(Excerpt adapted from A Working with Vulnerable People Checking System for the ACT Policy Position produced by ACT Department of Disability, Housing and Community Services August 2010)
Further ACT Government information and resources
Documents related to the final consultation (closed 9 September 2011)
The Bill is available from the ACT Legislation Register at www.legislation.act.gov.au
Other resources
- Summary Record of the community Roundtable: A Working with Vulnerable People Background Checking System for the ACT [RTF 2MB]
- Summary Record of the community Roundtable: A Working with Vulnerable People Background Checking System for the ACT [PDF 119KB]
- Policy Position: A Working with Vulnerable People Checking System for the ACT [RTF 734KB]
- Policy Position: A Working with Vulnerable People Checking System for the ACT [PDF 229KB]
- Factsheet: Working with Vulnerable People [RTF 415KB]
- Factsheet: Working with Vulnerable People [PDF 34KB]
- Discussion Paper: A Working with Vulnerable People Checking System for the ACT [PDF 505KB]
- Discussion Paper: A Working with Vulnerable People Checking System for the ACT [Word 393KB]
- Consultation Report: A Working with Vulnerable People Checking System for the ACT [RTF 435KB]
- Consultation Report: A Working with Vulnerable People Checking System for the ACT [PDF 154KB]
For further information please contact Jean Thomson, Policy Manager, Community Services Directorate on (02) 6205 8329 or workingwithvulnerablepeople@act.gov.au.
Assembly to pass tough background checking regime (Canberra Times; 25 October 2011)
Greens support Working with Vulnerable People Bill after significant amendments (Greens ACT Media Release; 25 October 2011)
New background check laws (ABC; 2 August 2011)
Compromise struck for background check policy (Canberra Times; 2 August 2011)
Alcohol Tobacco and Other Drug Association ACT
(02) 649 6358
info@atoda.org.au
Last updated 3 July 2013