S v Commissioner for Fair Trading
[2014] ACAT 59
•19 September 2014
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
S v COMMISSIONER FOR FAIR TRADING
(Occupational Discipline) [2014] ACAT 59
OR 13/42
Catchwords: OCCUPATIONAL DISCIPLINE – WORKING WITH VULNERABLE PERSONS (BACKGROUND CHECKING) - unacceptable risk of harm to a vulnerable person – negative notice refusing registration – merits review of decision – examination and application of risk assessment guidelines – evaluation of risks arising from offences - actions in private life and actual employment in regulated activity – negative notice set aside
Legislation:Working with Vulnerable People (Background Checking) Act 2011, ss 7, 8, 9, 10, 11, 12, 21, 22, 23, 24, 25, 26, 27, 28, 40, 41, 48, 64 and 71, and parts 2, 3, 4, 5, 6, 7 and 8, and schedule 2
Subordinate
Legislation:Magistrates Court (Working with Vulnerable People Infringement Notices) Regulation 2012, ss 42 and 71
Working with Vulnerable People (Background Checking) Regulation 2012
Working with Vulnerable People (Background Checking) Risk Assessment Guidelines 2012 (No 1) (Disallowable Instrument DI2012-190)
Cases:Chief Executive Officer, Department for Child Protection v Grindrod (No 2) [2008] WASCA 28
Department of Human Services v D R [2013] VSC 579
Phillips and Inspector-General in Bankruptcy [2012] AATA 788
Shi v Migration Agents Registration Authority [2008] HCA 31
Woods v DPP [2014] VSC 1
ZZ v Secretary, Department of Justice & Anor [2013] VSC 267
Texts/Papers: Pearce and Geddes, Statutory Interpretation in Australia (7th ed, 2011)
AS/NZS ISO 31000:2009 Risk management – Principles and guidelines
Tribunal: Mr P. Sutherland - Senior Member
Ms M-T. Daniel - Member
Date of Orders: 19 September 2014
Date of Reasons for Decision: 19 September 2014
ACT CIVIL AND ADMINISTRATIVE TRIBUNAL OR 13/42
BETWEEN:
“S”
Applicant
AND:
COMMISSIONER FOR FAIR TRADING
Respondent
TRIBUNAL: Mr P. Sutherland - Senior Member
Ms M-T. Daniel - Member
DATE:19 September 2014
ORDER
The Tribunal Orders that:
1. The decision of the Respondent to issue a negative notice under section 40 of the Working With Vulnerable People (Background Checking) Act 2011 is set aside and substituted by a decision under section 41 of that Act to register the applicant for a period of three years.
………………………………..
Mr P. Sutherland - Senior Member
for and on behalf of the Tribunal
REASONS FOR DECISION
On 8 November 2013, the Applicant filed an application for review of the Respondent’s decision of 5 November 2013 to issue a negative notice under the Working with Vulnerable People (Background Checking) Act 2011 (ACT) (the “WWVP Act”). This is a decision that the Applicant was not suitable to hold a general registration under the VVWP Act on the grounds that she presented an unacceptable risk of harm to vulnerable people.
The ACAT is empowered to review the decision of the Respondent by Part 7 and Schedule 2 of the WWVP Act and the review is conducted in accordance with the provisions of the ACT Civil and Administrative Tribunal Act 2008 (ACT) (the “ACAT Act”).
On 20 November 2013, the General President made Directions for the filing of documents in the matter. On 23 January 2014, the orders were varied by consent to extend time for filing certain documents. Time was further extended on 27 February 2014.
On 19 December 2013, upon application by the Applicant, Senior Member Lennard ordered that the application be heard in a hearing closed to the public, that documents and evidence be de-identified for the public record and that the Applicant's name and address not be published
On 28 February 2014, a Directions Hearing was conducted by Senior Member Sutherland. The parties were required to file a list of authorities by Tuesday 11 March 2014 and the Applicant was required to advise the Tribunal, by Thursday 6 March 2014, if an objection would be made to the witness, Mr Josh Rynehart on grounds of apprehended bias. No such objection was notified to the Tribunal.
The application for review of the reviewable decision was heard on 13 March 2014 by a panel (the ‘Tribunal’) comprising Senior Member Peter Sutherland and Member Mary-Therese Daniel. The Tribunal reserved its decision on the application.
Brief history of the matter
The following brief history is provided to assist in understanding these Reasons for Decision.
14 June 2011
Applicant was convicted of three offences in a NSW Local Court, arising from an incident involving police on 24 January 2011. She was fined $500 with Court costs of $79.
14 June 2011
In the afternoon after the Court attendance, the Applicant was drinking at the home she shared with her mother, as her mother’s carer. An incident occurred between the Applicant and her mother. Police attended and, as a result of their observations, arrested the Applicant and later laid charges of Common Assault and Assault Occasioning Actual Bodily Harm.
August 2011
Applicant commenced work as a Disability Support Officer employed by Drake Medox ACT.
13 October 2011
Applicant was convicted, in a NSW Local Court, of Common Assault, arising from the incident on 14 June 2011. She was fined $1,000, with Court costs of $81, and entered into an 18 month good behavior bond. She was acquitted of the offence of Assault Occasioning Actual Bodily Harm.
24 October 2011
Applicant was approved by the Director-General of the Community Services Directorate to provide care services to the Office for Children, Youth and Family Support (OCYFS).
18 March 2013
Applicant applied for a Working with Vulnerable People (WWVP) registration, paying the prescribed fee of $71.
5 September 2013
A "RAC" panel, comprising seven officers of the Respondent, recommended issue of a negative notice.
9 September 2013
Mr Josh Rynehart, a Delegate of the Commissioner for Fair Trading gave the Applicant notice under section 39 of the WWVP Act of intention to serve a negative notice and invited a request for reconsideration of that decision.
1 October 2013
ORS received a detailed request for reconsideration prepared by Mr Dean Prail of Prail Lawyers.
5 November 2013
Mr Jon Quiggin, Delegate of the Commissioner for Fair Trading, denied the request for reconsideration and issued a negative notice, i.e. a decision that the Applicant was not suitable to hold a WWVP registration on the grounds that she presented an unacceptable risk of harm to vulnerable people. The notice remains in place for 3 years (until 4 November 2016).
8 November 2013
Applicant applied to the ACAT for review of the Commissioner’s decision.
13 March 2014
Hearing of the application
8 November 2014
Disability services will become subject to the operation of the WWVP Act, preventing the Applicant from continuing in her current profession if the decision to issue a negative notice is confirmed by the Tribunal.
Issues Identified by the Tribunal
The principal issue for determination by the Tribunal is whether it should confirm the decision of the Commissioner for Fair Trading to issue a negative notice under section 40 of the WWVP Act to the Applicant because the Tribunal is satisfied that the Applicant poses an unacceptable risk of harm to a vulnerable person, or vary the decision or set it aside and substitute another decision.
Within this principal issue are a number of subsidiary issues:
(a) Has the Commissioner complied with the procedural requirements of the WWVP Act when issuing a negative notice to the Applicant?
(b) What is the distinction between “an offence against the person” and “an offence involving violence” in section 26 of the WWVP Act?
(c) What is an “unacceptable risk of harm” and which of the parties bears the responsibility to satisfy the Tribunal that the Applicant poses an unacceptable risk of harm to a vulnerable person?
(d) What is the relevance, if any, of actions and consequences which occur in a person’s private life, wholly outside the person’s workplace?
(e) Are the Working with Vulnerable People (Background Checking) Risk Assessment Guidelines 2012 (No 1) (“the Risk Assessment Guidelines”) properly authorised by the Act and have they been correctly applied in respect of the Applicant?
(f) What should be considered as a recent offence and how should the passage of time affect the risk assessment?
(g) What is the relevance, if any, of the fact that the Applicant is currently engaged as an employee in an activity which will become a regulated activity on 8 November 2014?
(h) Is there an “unacceptable risk of harm” in this case, and if so should the Tribunal issue a conditional registration as a measure to reduce risk to an acceptable level?
(i) If conditional registration is appropriate, what would be the content of, and process for issuing, a conditional certificate?
In the end, it was not necessary for the Tribunal to determine issue (i), although it was fully addressed in the parties' submissions.
THE HEARING PROCESS
Material and Information Relied on by the Tribunal
In its consideration of this matter the Tribunal has taken into account:
(a)documents and material filed by the parties including Statements of Facts and Contentions and witness statements;
(b)oral and written submissions made by or on behalf of the parties at the hearing;
(c)oral and documentary evidence given or tendered by the parties or witnesses during the hearing;
(d)the transcript of Police v S, a criminal trial in a NSW Local Court; this was also provided on two DVDs;
(e)the legislation and authorities referred to and relied on by the parties; and
(f)Tribunal Documents (the ‘T Docs’) and supplementary information filed by the Respondent that relate to the reviewable decision made by the Respondent.
The Hearing
The matter was heard on 13 March 2014. The Applicant attended and was represented by Mr Hugh Selby of Counsel, instructed by Mr Dean Prail and Ms Linda Prail of Prail Lawyers. The Respondent was represented by Mr Marcus Hassall of Counsel, instructed by Ms Clare Besemeres from the ACT Government Solicitors office.
Witnesses
The following witnesses gave evidence at the hearing.
For the Applicant
-Ms Debbie Stratford, Drake Medox;
-Ms A, Team Leader, Accommodation Support Services, Disability ACT, Community Services Directorate; and
-Ms S, the Applicant;
For the Respondent
-Mr Joshua Rynehart, Senior Manager, Registrations and Background Screening, Office of Regulatory Services.
A witness statement by the Applicant’s daughter was filed however she did not appear to give evidence and the Tribunal gave little weight to the content of her statement. Similarly, a brief report by a clinical psychologist was filed by the Applicant, however no oral evidence was given and little weight was given to the content of the report.
Exhibits
The following documents were marked as exhibits:
A1. Written Submission by Counsel for the Applicant;
R1. Transcript: Police v S, Disk 2; and
R2. AS/NZS ISO 31000:2009 “Risk management-Principles and guidelines".
Written submissions
Counsel for the Applicant provided a written outline of his submissions at the start of the hearing on 13 March 2013.
At the conclusion of the hearing, directions were made for the parties to file written submissions. The Applicant having already provided an outline of submissions, the Respondent filed submissions in response on 1 April, and the Applicant filed short submissions in reply on 15 April 2014.
THE LEGISLATIVE SCHEME
The legislative scheme for the protection of vulnerable persons in the ACT comprises the Working with Vulnerable People (Background Checking) Act 2011 (the “WWVP Act”), the Working with Vulnerable People (Background Checking) Regulation 2012 (the WWVP Regulation"), the Magistrates Court (Working with Vulnerable People Infringement Notices) Regulation 2012 (the Infringement Notices Regulation") and the Working with Vulnerable People (Background Checking) Risk Assessment Guidelines 2012 (No 1) (the “Risk Assessment Guidelines”). Relevant sections of this legislation are set out in Attachment A to these Reasons. The Risk Assessment Guidelines are in Attachment B.
The WWVP Act was notified on 8 November 2011 (when sections 1 and 2 commenced) and the remainder commenced on 8 November 2012. Section 3(1) provides for a staged application of the Act to regulated activities, with “activities or services for children” (sch 1, pt 1.1) becoming regulated from 8 November 2013. The Act will apply to “disability services” (sch 1, s 1.17) from 8 November 2014. All of the activities covered by the Act will be regulated by 8 November 2018.
The WWVP Act has been amended by the Statute Law Amendment Act 2012 (A2012-21) and the Statute Law Amendment Act 2013 (A2013-19) however these amendments do not have important substantive effects.
The WWVP Regulation prescribes what information must be provided in relation to role-based registration for section 42(4) and prescribes certain obligations of employers where they employ a person with a role-base registration (section 71(2)(b)). The Infringement Notices Regulation creates a system of infringement notices under the Magistrates Court Act 1930 for certain offences against the WWVP Act.
Section 27 in Division 5.2 of the WWVP Act requires the Commissioner for Fair Trading “to make guidelines (risk assessment guidelines) about how risk assessments are to be conducted under this Act”.
Part 2 of the WWVP Act introduces a number of “important concepts”:
· “vulnerable person” (section 7);
· “regulated activity” (section 8) which refers to a list of activities in Schedule 1 to the Act;
· “engaged in a regulated activity”(section 9), which requires “contact” with a vulnerable person (section 10); and
· “employer” (section 11) which is widely defined as an “entity”, which includes unincorporated bodies and individuals, for whom the person engages in a regulated activity.
Part 3 of the Act establishes when a person is required to be registered and creates offences for failure to register when required. Section 12(2) sets out a list (paras (a) to (n)) of circumstances in which a person is not required to be registered to engage in a regulated activity.
Part 4 provides for applications for registration, withdrawal of an application (section 20), a 3 year restriction on reapplying for registration where a negative notice has been given (section 22) and creates an offence for failing to disclose a charge, conviction or finding of guilt during the period while an application is being processed (section 21).
Part 5 provides for “risk assessments” which are made by the Commissioner to determine whether an applicant for registration “poses an unacceptable risk of harm to a vulnerable person” (section 23). The part covers important concepts, making risk assessment guidelines, conducting risk assessments and a mandatory process for making negative risk assessments and issuing a “negative notice”.
Part 6 provides for registration, conditional registration, registration cards (Division 6.2), monitoring registered people (Division 6.3), suspending or cancelling registration (Division 6.4) and surrendering registration (Division 6.5).
Part 7 and schedule 2 to the Act provide for a range of decisions by the Commissioner to be subject to merits review by the ACAT.
Part 8 of the Act “Miscellaneous” covers protection from civil liability for officials (section 64), protection of confidential information, disqualification orders by a court, approved fees, approved forms and a regulation making power (section 71).
The Revised Explanatory Statement to the Bill (at pages 4-5) provides a rationale for the WWVP Scheme:
In line with obligations under the National Framework for Creating Child Safe Environments – Organisations, Employees and Volunteers, checking systems for people working with children have been established or are being developed in all Australian jurisdictions.
The protection of the rights of children and vulnerable adults in the ACT is a legitimate objective and pressing social need. The ACT Government considers that the creation of a checking system for people who work with, or want to work with, vulnerable people, with appropriate safeguards, is a proportionate response under Section 28 of the Human Rights Act 2004 (ACT).
The basic premise of background checking is that the past behaviour of an individual provides an indication of the possible future behaviour of that individual[1]. Examples or patterns of abusive or inappropriate behaviour can sometimes be evident in information available for assessment, which includes an individual’s criminal record or employment history.
There have been documented cases in which a person with a history of abusive behaviour has gained access to vulnerable people because their previous history was not known to their employer or other vetting agency[2]. In the worst cases, these people have gone on to commit further abuse or neglect.
Evidence suggests that around half of sex offenders gain access to their victims through children’s organisations.[3]
Targeted ACT legislation exists for the protection of vulnerable members of the ACT community while they receive services in the community and in the home. This legislation includes the Discrimination Act 1991 (ACT), Disability Services Act 1991 (ACT), Children and Young People Act 2008 (ACT), and the Health Practitioner Regulation National Law Act 2010 (ACT). There is also similar Commonwealth Act and Regulations. However, these legal frameworks are limited.
While vulnerable members of the ACT community are awarded some protections under these legal frameworks, these Acts do not regulate background checking. Therefore, the practices and processes used by organisations and agencies when undertaking background checking and risk assessment of prospective employees and volunteers are not consistent or centralised and the background information received is limited to a person’s criminal history only.
The background checking and risk assessment process detailed in the Bill provides for the centralising of background checking and risk assessment. The Bill also provides for a broader basis on which to conduct background checking which includes a person’s criminal history, non-conviction information, relevant offences and other information.
A rigorous and transparent background check and risk assessment process will enable appropriate and defensible decision making. Background checking and risk assessment will complement an organisation’s recruitment practices and other policies to create safe working places for clients, employers, employees and volunteers.
The Bill provides protective measures for current and future employees and volunteers through ensuring an individual’s career and/or volunteer opportunities are not unduly influenced by non-relevant criminal information, such as, parking infringements.
[1] Creating Safe Environments for Children – Organisations, Employees and Volunteers National Framework. Schedule: An Evidence Based Guide for Risk Assessment and Decision-Making when Undertaking Background Checking, June 2006, p2
[2] Birchard, M. (2004). Birchard Inquiry. London: Home Office.
[3] Statistics from the Victorian Child Exploitation Squad indicate that between 1988-1996, 43% of offenders gained access to child victims through children’s organisations. Petratis, V and O’Connor, C, Rockspider: The Danger of Paedophiles – Untold Stories, Hybrid Publishers, Ormand, Victoria, 1999
The question of compatibility with the Human Rights Act 2004 is discussed in detail in the Revised Explanatory Statement at pp 9-12.
EVIDENCE
Ms Debbie Stratford
The Applicant’s case commenced with the evidence of Ms Stratford of Drake Medox. Ms Stratford is the ACT branch manager of Drake Medox and provided a letter to the Commissioner on 20 September 2013 (T document 34), in support of the Applicant.
In her letter, Ms Stratford said that the Applicant had been working as a disability support officer with Drake Medox since August 2011. She said that the Applicant’s role consisted of the following tasks:
· provide direct support to people with a disability on a day to day basis according to individual needs, plans, programs and direct observation;
· participate in the development, implementation and monitoring of client plans;
· communicate and interact with clients, families, community agencies and staff on a day to day basis and at other times as necessary;
· assist clients with domestic tasks and perform internal and external household duties;
· plan and participate in client’s development and activities within the home and community setting;
· maintain client and home records, write notes and routine reports;
· practice, promote and maintain health and safety in the workplace; and
· maintain a safe and homely living environment for the clients.
Ms Stratford wrote that throughout her employment the Applicant “demonstrated at all times a professional and ethical attitude towards her work and her clients”, and that she was often requested by clients to support them. The Applicant was a motivated and dedicated employee, and that it had been a pleasure to witness her professional development.
Ms Stratford was very surprised to learn that the Applicant’s application had been declined, and stated that her work performance, values and ethics, all contribute to her professional and personal reputation.
In her oral evidence, Ms Stratford confirmed that the Applicant commenced work with Drake Medox in August 2011. She explained that Drake Medox was nationally a recruitment organisation, however, in Canberra it operates more as a relief staffing pool in the community sector, mainly in the area of disability support work.
In Canberra, Drake Medox identifies and interviews staff, provides a two week induction and then places qualified staff on shifts where their skill, experience and personality traits will work effectively for the relevant client. Ms Stratford said that it was usual to undertake pre-employment checks with previous employers before an employee commenced. In 2011 she employed over 70 people and would need access to her file to confirm the pre-employment checks that had been conducted in relation to the Applicant.
Ms Stratford said that at her interview, the Applicant answered questions in a way that disclosed that she was exactly what Ms Stratford "wanted and needed". She impressed as being client-focused, willing and able; that she was willing to learn the ethos and willing to do more learning after the induction process.
Ms Stratford said that a supervisor is not present with a worker on shifts. She relies on feedback from clients and having conversations with team staff to assess performance. When a new employee commences a supervisor tends to contact the client to check that the employee is the sort of worker the client likes, rather than the supervisor working alongside the worker on the particular shift.
Ms Stratford said that complaints about an employee’s work are made either by a phone call to herself or a consultant on the team. She said that, depending on the nature of the complaint, this would be followed by written documentation and the staff member would be called in to discuss the complaint.
Ms Stratford said she was not aware of there ever having been a complaint in relation to the Applicant and that to her knowledge she had always been professional. She said that she had never had even a suspicion that the Applicant had arrived at work affected by alcohol.
Ms Stratford was questioned about the regularity with which she sees the Applicant face-to-face. She said she might not see the Applicant at all in a week, but generally has weekly contact by telephone or SMS, if only to confirm availability for shifts. Ms Stratford said that some employees pop in to the office on a weekly basis, other staff may not feel they need to do that. She said that she does see the Applicant face to face from time to time, but not on a weekly basis.
Ms Stratford confirmed that the Applicant was expected to work independently and sometimes with another staff member. Most of her supervision occurs by way of client feedback. Ms Stratford could not guarantee that the Applicant would always be working with another worker.
Ms Stratford acknowledged that the clients who are provided services are vulnerable people. She was asked how confident she could be that those clients would raise an issue if there was a problem with or concern about the Applicant’s behaviour. Ms Stratford said that, for other staff members where there has been an issue in relation to work performance or behaviour, she has been notified of that issue by the client within 24 hours. She expressed no concern that complaints would not be brought to her attention.
Ms Stratford said that she had discussed the October 2011 conviction for assault with the Applicant. She knew that the Applicant’s mother had been recovering from hip surgery and that the Applicant had struck her mother. Ms Stratford said those matters did raise concern but that neither she, nor to her knowledge any client, had ever seen that sort of behavior from the Applicant.
Ms A
Ms A also gave evidence in support of the Applicant’s case. Ms A is a team leader in a home for adult people with disabilities managed by Disability ACT. She is the Applicant’s immediate supervisor. Ms A provided a written statement dated 12 February 2014. There was also an emailed character reference dated 27 September 2013 from her in the T documents (T document 36).
In the character reference, Ms A stated that she had worked with Disability ACT for four years as the team leader managing a group home for four people with disabilities.
Ms A wrote that during this time she had managed numerous staff but none had been as genuine and passionate as the Applicant “who puts her heart and soul into everything that she does to ensure that the people she supports have the best quality of life.” Ms A wrote:
[the Applicant] has been an absolute joy to manage and I feel very privileged to have her on my team she is always friendly, positive and willing to take on any charge given to her.… [The Applicant] has an extremely high work ethic and prides herself on her honesty and reputation as a committed support worker.… [The Applicant] is a true professional and it would be a great loss for this industry to not have her be a part of it due to some mistakes in her past. What is on paper does not reflect the person I know and manage and I strongly believe that there is no risk with her working with vulnerable people as a matter of fact it is quite the opposite they will be better off for it. If I did not believe that [the Applicant] was not suited for this role I would be honest in saying so but her passion is unwavering she is amazing what she does. [words within brackets added]
In her statement of 12 February 2014, Ms A reiterated her support for the Applicant’s application for registration to work with vulnerable people. She noted that she had seen the Applicant resolve conflicts and handle other difficult situations with “remarkable patience and admirable tact”. She met with the Applicant to discuss the criminal history and said that the Applicant had been open and honest and had answered all questions put to her. Ms A wrote “it is still my belief that she poses no threat to any vulnerable people that she may work with now or in the future”.
Ms A wrote that she and the Applicant have discussed a risk strategy plan which Ms A was happy to put in place should the Applicant be registered. This involves weekly supervision sessions, a report on which could be forwarded to the Respondent and to the Applicant’s employer.
Ms A attended the Tribunal and gave evidence. She commenced her employment in the disability services sector with a six-week full-time training course with Disability ACT in 2009, and that she had no other formal training. She worked as a disability services support officer for a year and then became a team leader.
Ms A explained that as the team leader in her particular house there had been some positive changes made, that the house had become very age-appropriate and client-focused and that she had come to know the Applicant through working in that particular house. Three people in the house use wheelchairs; some have intellectual disability and some have epilepsy. Two residents require “full assistance” with personal care and hygiene, eating, dressing and interacting in the community. Residents require assistance to get to medical and other appointments.
Ms A explained that the Applicant had become a key worker; a person who specifically looks after one person more than others. She takes that person to appointments with doctors, meetings, activities and shopping. As an example, Ms A said when she took over as team leader and offered a greater range of choices to the residents, it was discovered that one resident liked Andre Rieu. The Applicant organised a trip for that resident to Sydney where they saw both Andre Rieu in concert and South Pacific.
Ms A said that the Applicant has come up with “fantastic ideas”. In relation to residents’ medical needs, the Applicant tends to be “10 steps ahead” of Ms A. Ms A said the Applicant dresses residents beautifully, looks after their hair and presentation, makes sure appointments are kept and really makes a difference to their quality of life.
Ms A said that every single year their house has been nominated for an award for excellence. She said that as team leader, she is very particular about staff and she only wants the best outcomes for the residents.
Ms A is aware of the Applicant’s criminal history and reiterated her willingness to undertake weekly supervision and reporting to whoever wanted it.
Ms A acknowledged that residents or clients could be difficult at times and demonstrate severe behaviours. In the residence in which she is the team leader those behaviours have largely ceased and medication of residents has been halved. In her time as team leader, she said that she has never had any reason to be concerned that the Applicant has behaved inappropriately, or come to work under the influence of alcohol.
Ms A said that she would never do anything to put a resident’s safety at risk
In cross-examination Ms A explained the employment relationship whereby Disability ACT provides a team leader to staff provided by a separate agency. She sees herself as in a chain of command, in an employment relationship with the Applicant, and that on a day-to-day basis her management involves making sure the Applicant is performing duties to a high standard. Ms A said that there are always two staff on a shift, and if one of those is Ms A, she would be able to notice the Applicant’s performance; otherwise, there is a good level of communication within the team when she is not present.
In relation to stress on workers, Ms A said that in the main the residence is a “lovely environment”, however, as team leader she tries to pick up on things that might escalate stress levels early on. She said that she deals with matters quickly to stop escalation. She provided examples. Ms A acknowledged the job is challenging, however, said that in the house in which she and the Applicant work, the work is both interesting and highly rewarding. She said that without a good team willing to take ideas on board, that might not work.
Ms A said that to her knowledge the Applicant had worked at other houses, however, there was a position opening up at her house and she hoped to take the Applicant on in a part-time position on a consistent basis. Ms A confirmed that the part-time role involves 60 hours per fortnight, that generally there would be two staff on a shift from 7 am to 9 pm, and one staff member on a sleepover from 9 pm to 7 am.
In relation to the assault on the Applicant’s mother, Ms A confirmed that the Applicant admitted the altercation but denied hitting her mother. Ms A was not aware of the Local Court findings other than that there had been an assault.
Ms S, the Applicant
The Applicant gave evidence in support of her case. She had also provided a statement of evidence signed 7 February 2014.
The Applicant’s evidence was that in August 2010 her mother had a fall and broke her hip, and so, in December 2010, she moved from Darwin to live with her mother and take on the role of carer.
The Applicant said that over time her relationship with her mother deteriorated. She found her mother a difficult person to live with. She felt very isolated.
On 24 January 2011, the Applicant was drinking at a hotel. She was asked to leave and police were called. She says she has no recollection of the events of the day other than that there was an incident where she felt that an officer was “in my face” and the Applicant used her open hands to push the officer away.[4]
[4] The police statement of facts for the charge records that the Applicant initially refused to show identification and was swearing loudly, she was arrested for being intoxicated in public and struck one of the police officers in the chest using two open hands as they tried to assist her into the caged area of the police vehicle.
The Applicant was charged with assaulting a police officer and was brought before the Local Court for that offence on 14 June 2011.
On the morning of 14 June 2011, the Applicant attended the Local Court and pleaded guilty to the charge of common assault of the police officer. She was convicted and sentenced. As part of the sentence she was ordered to undertake a Magistrate's Early Referral into Treatment program ("MERIT program") in relation to alcohol use. The Applicant said that she completed the program which took about 1.5 hours a week for 12 weeks.
The Applicant said that 14 June is a significant date for her because her brother died as a result of a heroin overdose on that date in 2000. After being sentenced, the Applicant left court at about 3 pm. She went to an alcohol store and purchased a four pack of “Wild Turkey & Dry” which she consumed at home over the next 3 to 3 ½ hours.
At about 4:30 pm, the Applicant’s mother returned home and an altercation ensued. The Applicant left the house and returned at about 7 pm. The disagreement continued. The Applicant’s evidence was that she recalls that her mother struck her and that she grabbed her mother’s wrists. The Applicant denies striking her mother. Police attended the scene and the Applicant was charged with assault.
Charges of common assault and assault occasioning actual bodily harm in relation to the Applicant’s mother were before the Local Court on 13 October 2011.[5] The Local Court convicted the Applicant of common assault and imposed a $1000 good behaviour bond. An 18 month apprehended violence order was also made. The Applicant was acquitted of assault occasioning actual bodily harm as the Magistrate found there was no evidence to support that charge.
[5] From the transcript of the proceedings on 13 October 2011 it is clear that the Applicant’s mother gave evidence to the effect that she had first hit the Applicant, the Applicant had then hit her, and when the police arrived the Applicant was holding the mother’s wrists. The Applicant’s mother said in her evidence she did not wish the Applicant to be charged and said she did not want an apprehended violence order.
In her oral evidence, the Applicant said that if she had not been drinking that day she would have handled the situation better and that she would have left the residence rather than have the argument escalate.
In her written statement, the Applicant said that she moved out of her mother’s home after the incident. She currently lives with her daughter. She stated that she obtained employment in August 2011 as a disability service provider. She stated that she now feels more appreciated and worthwhile and has strong relationships with her family including her mother. The Applicant said that her alcohol intake is now reduced, that she had sought psychological treatment and is on medication.
In oral evidence, the Applicant provided more detail of her previous work experience. In 2006 she worked in an aged care home in Glen Innes on a full-time basis. She cared for people who were classified as requiring full care, as well as low care. The Applicant then moved around Australia and worked in a variety of jobs including in a bistro, as a cleaner and as a receptionist. She said she has never had an issue with alcohol use in her employment, has never lost a job or been reprimanded in relation to her use of alcohol.
She said that alcohol had no place in her working life. She said that she does not drink while working and never has, and that she does not drink before work. She said that she felt that she had to be professional in any work she undertook.
The Applicant resumed working with vulnerable people in August 2011 when she obtained employment as a disability service officer. She agreed that the scope of the work she was performing as described by Ms A was accurate, and that she could be offered similar work at any of the other 60 residential care houses in the ACT. She said that she had worked at other residential houses in the ACT.
The Applicant said that she had discovered that she had a passion for working with people with a disability. She said she loves the clients and what they give to her and what she can give to them. She wants to keep working in this area for the rest of her working life.
In cross-examination by counsel for Respondent, the Applicant said she did not really understand the basis for the Respondent’s decision. She explained again the circumstances of her return to care for her mother, who was recovering from hip surgery and had limited mobility. She confirmed that her mother was intolerant of her consumption of alcohol, that she was intoxicated at the time of the incident and that it was open to the magistrate to find that she had slapped her mother. She did not concede that her own recollection of the incident was vague, although she did acknowledge that it is possible that she does not recall slapping her mother. She said that it was not something she would do to her mother because of their relationship.
The Applicant acknowledged that her mother had been in a vulnerable position and had been effectively in the Applicant’s care when the assault occurred. The Applicant said that the incident occurred in a different context to that in which she works with vulnerable people. She was the daughter living in the home. This was not the same working with vulnerable people because, although she was her mother’s carer, she was also her daughter.
The Applicant confirmed that the employment role she proposes to perform would involve spending time alone with disabled people and that she would sometimes stay overnight. She said that if a person was working an 80 hour roster, shifts could be 8 to 10 hours per day and include overnight shifts.
The Applicant acknowledged that the period in which she lived with her mother was an unsettled time, but did not agree that it was possible that life stressors could occur again that would lead her to behave in a like manner at work. The Applicant said that she believed that she had not put herself in that position again. She said she drinks alcohol about once a fortnight, but not on work days and only in her own home with her family.
The Applicant said that she is considering joining a church, one of the rules of which is that there be no smoking and no drinking, and it is possible that she would be entirely abstinent from alcohol in the future.
In relation to the MERIT certificate, the Applicant said she had not been required to undergo any further r training after obtaining the certificate and had not had any other treatment for alcohol use since October 2011.
It was put to the Applicant that dealing with some disability clients can present challenges. The Applicant agreed and said that carers could be placed in stressful situations. However, she distinguished this from the stress she had experienced with her mother. She said the stress with her mother was ongoing, constant, and that she had no one to talk to, to express frustration to or to turn to. On the other hand with disability care, there is somebody to talk to; with whom you can debrief and discuss. She said that issues that arise are resolved quickly. There are occasions when a carer works on their own, usually overnight, however by 9 pm the residents are usually going to bed and are asleep.
In relation to other employment that might be open to the Applicant, she stressed that working in disability care is what she loves and what she is good at. She does not think that she could be satisfied working in another industry. She conceded that it was open to her to seek work as a cleaner or in other areas in which she has previously worked.
Counsel for the Respondent asked the Applicant how the Tribunal could ever be satisfied that such an incident would not happen in her workplace in the future. The Applicant said that she had never had such an incident in any workplace, that alcohol may have been a factor in the incident with her mother and that because alcohol is not a factor in her working life, it simply would not happen.
In re-examination, the Applicant said she thought that she had referred to her work at Glen Innes in her resume and application when seeking work with Drake Medox and assumed reference checks would have been done at that time. The Applicant also confirmed that she has a certificate level III in aged care.
Mr Josh Rynehart
Mr Josh Rynehart provided a witness statement dated 27 February 2014 and gave oral evidence on behalf of the Respondent.
He is the Senior Manager, Registrations and Background Screening at the Office of Regulatory Services (ORS), and it was Mr Rynehart, as Delegate of the Commissioner for Fair Trading, who issued the proposed negative notice on 9 September 2013.
In his witness statement, Mr Rynehart said that he has worked with ORS since March 2008 and since 2010 has led the planning, development and implementation of the Working with Vulnerable People (Background Checking) Act 2011. Mr Rynehart said he has specific knowledge of, and experience in, the area of accommodation services for people with a disability, because in 2004 he managed and implemented Government responses to the Board of Enquiry into Disability Services regarding tenancy options and individual supports for disabled persons. In 2009 he was employed by Disability ACT to undertake a research study into appropriate long-term accommodation options for people with high complex needs who require facility support services, which resulted in the report From House to Home. A copy of the report was attached to Mr Rynehart’s statement.
Mr Rynehart noted that residents of group homes generally have little input into the choice of support workers or people with whom they share their home. These decisions are normally made by the service provider. Generally a group home is unable to offer flexibility and is highly regularised, with “the needs of the organisation and support workers overriding the preferences of the individual”. He stated that “this leads to low levels of personal choice and autonomy about day-to-day routines, activities and decisions which can lead to an institutional style environment in the home”. The contrast between this perspective offered by Mr Rynehart and the more recent experience reported by Ms A was notable.
Mr Rynehart stated that, in his opinion based on his knowledge and experience, people with disability who access accommodation support generally have a moderate or profound intellectual or physical disability. He said “they are vulnerable in both the sense of their disability and a power imbalance inherent in the service”. He stated:
[the] resident is often completely dependent on their support worker for basic services such as toileting, eating, clothing and any access to the world outside the home. As support workers are generally autonomous and trusted, the potential for escalation of unacceptable control by the support worker is significantly higher than in a health or aged care environment. As a result there is a substantially enhanced risk, and there are countless examples, of unacceptable control (such as withholding food, toileting) and/or physical, emotional and sexual abuse of people in supported accommodation.
Mr Rynehart wrote in his statement that because of these factors, “it is critical that people working in supported accommodation are the least likely: to abuse a position of power, to become aggravated or violent in positions of stress; and to breach the trust of a vulnerable person.”
Mr Rynehart wrote in his statement that the risk assessment of the Applicant resulted in the classification of the level of risk as being “medium”, and that the option of conditional registration of the Applicant was considered, but ultimately rejected. This was because Mr Rynehart was unable to identify practical and appropriate conditions that would address the risk the Applicant poses. He stated that in the case of the Applicant, she has applied to work specifically with people with disability, and a risk has been identified that directly relates to vulnerable people, such as people with a disability. The circumstances of the assault in 2011 involved a vulnerable person under the Applicant’s direct care and the Applicant responding to a confrontational situation by assaulting that person.
In his oral evidence, Mr Rynehart adopted his written statement and reiterated the risks posed by institutionalisation in any supported care model. He explained that people with a disability receiving care in such a model are in a less powerful position than the person providing support and that this power imbalance can be exploited consciously or unconsciously, in a number of ways.
He explained that some clients may act aggressively or obstructively. A support worker must be able to deal with that situation in a less confrontational manner.
He confirmed that he issued the proposed negative notice as a delegate of the Commissioner for Fair Trading in September 2013 (T document 63).
Mr Rynehart said that the Commissioner considers eligibility for general registration for each applicant. If the information obtained indicates a risk, the Commissioner considers appropriate conditions which could address the risk. If there are no appropriate conditions, then a negative notice is issued.
General registration allows the performance of any regulated activity. Because of the breadth of work which can be undertaken with general registration, Mr Rynehart said that the tolerance of risk in general registration is quite low.
In the current matter, Mr Rynehart said that the Commissioner started considering conditions that could mitigate the risk identified as a result of the Applicant’s criminal history, early in the assessment process.
Mr Rynehart referred to the Risk Assessment Guidelines based on the Australia and New Zealand Standard for risk management - AS/NZS ISO 31000:2009 "Risk management – Principles and guidelines". Mr Rynehart took the Tribunal through an application of the Guidelines and the stages of risk identification, risk analysis and risk evaluation set out in the Guidelines. He explained that the risk treatment for unacceptable risk may be a conditional registration or a negative notice.
Mr Rynehart answered questions to clarify the way the Commissioner had undertaken the risk assessment in the Applicant’s case.
The risk assessment recommendation report was contained in the T documents (T document 65). Four risks were identified in the table at T document 69 being “possess substance”, “DUI/Drive suspended”, “conspiracy to supply/cultivate cannabis” and “assault”. The first three risks were identified from the criminal history provided by the Applicant about convictions imposed before 2004. Those risks received a risk rating of either “very low” or “low”. The risk of assault was given a consequence/impact of “moderate” and a likelihood of “possible” leading to an overall assessment of the rating of the risk of assault as “moderate”.
Mr Rynehart explained that an overall rating of “moderate” is not defined in the Risk Assessment Guidelines but requires an expert judgment by the assessor.
In relation to the likelihood of assault having been rated as “possible” (as opposed to “almost certain” or “likely” on one end of the spectrum or “unlikely” or “rare” at the other), he explained that that concept of “possible” could not be quantified. He said that a person who has committed an offence is more likely in the future to commit such an offence, but was unable to provide any further clarification as to why the likelihood had been assessed in that way.
In relation to the consequence/impact being rated as “moderate” (rather than “catastrophic” or “major” on the one hand or “minor” or “insignificant” on the other), Mr Rynehart said that the impact had been rated as “moderate” by considering the potential consequence of an assault of a vulnerable person.
Table 2 of the Risk Assessment Guidelines summarises the factors considered by the Commissioner in the risk assessment process. In looking at items contained in table 2, Mr Rynehart conceded that because the assault in this case was of the Applicant’s mother, there might be a reduced likelihood of an assault in a work context, however, he said that this did not outweigh the fact that the assault was on a person in the Applicant’s care.
Mr Rynehart noted that the incident occurred some two years before the decision, and stated that he regarded this as a recent offence, although there are no hard and fast rules about what is considered to be “recent” other than as set out in Table 2 under “Timing”.
In relation to the prospect of conditional registration, Mr Rynehart said that because work in a disability group home is autonomous, staff are trusted and need to be trusted while working alone. He said the most obvious condition would be to require direct supervision of the Applicant at all times, but this would simply not be possible. He concluded that the offence against the Applicant’s mother, and the circumstances in which it occurred, indicated an unacceptable risk that could not be mitigated by conditions. He felt that weekly meetings would be insufficient to ensure mitigation of the risk and that it would not be feasible to roster the Applicant as the second person for every shift, as even in that situation workers have to work separately at times.
SUBMISSIONS BY THE PARTIES
Oral submissions
Mr Selby, Counsel for the Applicant, in opening said the Applicant’s case relied on the following propositions:
1.The Applicant has demonstrated safe working with vulnerable people in aged care and disability services since 2006 (although not continuously).
2.Outside of the workplace and entirely partitioned from it she has a range of criminal convictions which are acknowledged.
3.There is no evidence as to any crossover between her criminal history and her work history.
4.The test which should be adopted is that of a test of unacceptable risk of harm - and such a risk does not necessarily mean 0% risk but rather “unacceptable” risk. Counsel submitted that the evidence in this case is that there is no risk whatsoever.
In relation to the Risk Assessment Guidelines, Mr Selby submitted that the Commissioner must apply the Guidelines, however, the Commissioner must follow all the provisions of the legislation, and looking at the criminal history is a necessary but not sufficient approach to the legislative task. He did not seek to impugn the validity of the Guidelines, but to challenge the Commissioner’s application of the Guidelines in this case.
At the commencement of the hearing, Mr Hassall, Counsel for the Respondent, submitted that the Commissioner cannot simply partition parts of a person’s history when performing a statutorily-required risk assessment. Counsel submitted that the factual issues in this case were of very narrow compass. The substantive question was whether, having regard to those matters, the Commissioner was correct to form the view that there was an unacceptable risk.
It was submitted on behalf of the Respondent that the decision to be made by the Tribunal is whether the Commissioner’s assessment of risk is the correct decision on the evidence now before the Tribunal. The Act requires a risk assessment to be performed in accordance with the Risk Assessment Guidelines. Those Guidelines require the Commissioner to have regard to the person’s criminal history. As a matter of law, the Commissioner must have regard to those convictions and any matter inherent to the requirements of the position. In this case, there was an assault of a person recovering from hip surgery who was in the Applicant’s care at the time,
Written submissions by the Applicant
The Applicant argued that the legal framework to be applied in this matter was whether the Applicant posed an “unacceptable risk of harm” to a vulnerable person with whom she is working.
The Applicant submitted that the phrase “unacceptable risk of harm” is usefully explained by Elliott J in Department of Human Services v D R [2013] VSC 579 as meaning “there is a sufficient likelihood of the occurrence of risk which, having regard to all relevant circumstances, makes it unacceptable” (at [60]). Counsel also referred to the examination of that phrase in Woods v DPP [2014] VSC 1 where Bell J found that the onus is on the party claiming that there is an unacceptable risk rather than an applicant.
The Applicant submitted that under section 28 of the WWVP Act, the Risk Assessment Guidelines used by the Respondent require the Commissioner, apart from criminal history, to look to other information that on reasonable grounds may be relevant to assessing the risk of harm, and that other information should be tested by relevance and reliability. It was submitted that, in this case, the Applicant’s current work with vulnerable people is relevant.
The Applicant’s history had features of relevant offences, being the fight with her mother and a public order offence involving alcohol, however, the Commissioner had clearly made an error in relation to the date of those offences, and had failed to realise that the most recent offence had occurred almost 3 years prior to the decision being taken. The Applicant also relied on the absence of adverse reports about the Applicant’s work performance with vulnerable people and the presence of positive statements attesting to the quality of her work.
Counsel for the Applicant submitted that the Commissioner’s risk assessment had ignored the most important evidence: that the Applicant is a sober good worker with vulnerable people and had taken steps to undertake training specific to her work needs. Counsel argued that the Respondent’s reasons for decision make no mention of the Applicant’s work performance, and this demonstrates the Commissioner failed to undertake the “other information” aspect of the risk assessment.
It was also submitted that the Respondent had ignored the Applicant’s “right to work”. Reference was made to cases involving the right to work in which it was pointed out that an “unjustifiable risk” does not equal “no risk” and that the risk has to be “real and appreciable”. The recent case of ZZ v Secretary, Department of Justice & Anor [2013] VSC 267 was relied on in support of this argument.
Written submissions by the Respondent
In submissions in response, Counsel for the Respondent contested the suggestion that the Act was intended to apply only to persons not already engaged in regulated activities, or that there was a right to continue to work in the now regulated area. The Respondent also refuted any suggestion that there is a greater onus on the Commissioner to be satisfied the Applicant poses an unacceptable risk of harm to a vulnerable person in circumstances where the Applicant has previously worked in the area now regulated.
Counsel for the Respondent noted that it is unhelpful in merits review proceedings for a tribunal to approach the matter on the basis that one or the other party carries a burden of proof (Phillips and Inspector-General in Bankruptcy [2012] AATA 788), and submitted that the Tribunal should instead apply the statutory scheme in determining the matters of which it has to be satisfied in order to reach the correct and preferable decision. In the present case, it was submitted, the Act provides that the Commissioner in declining registration must be satisfied that the Applicant poses “an unacceptable risk of harm to a vulnerable person”. Counsel submitted that this meant the Commissioner had to feel an “actual persuasion” of that risk and could not be said to have reached the requisite state of satisfaction as a result of “a mere mechanical comparison of the probabilities independent of any belief of its reality” (Phillips at [225]).[6]
[6] Quoting Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361
Except where an applicant had proposed a limited role-based registration, the Commissioner should, in conducting the risk assessment, consider suitability for registration of a particular applicant by reference to the full range of regulated activities covered by the Act.
In relation to the prescriptive nature of parts of the Risk Assessment Guidelines, Counsel for the Respondent pointed out that section 28 of the Act requires that the risk assessment guidelines issued by the Commissioner not only provide the matters the Commissioner must or may take into account in conducting a risk assessment, but also provide “how all those matters must or may be taken into account”. It was submitted that it is unsurprising, therefore, that the Guidelines issued on 11 July 2012 provide guidance not only as to the relevant factors to be taken into account, but also the consequences which should or may result from the presence of particular factors.
In relation to Table 1 of the Guidelines, Counsel for the Respondent referred to the differentiation between “offences against the person” and “offence involving violence”. During the hearing, the Tribunal asked Counsel about the definition of these terms, given that the relevant offences for the Applicant are assaults, which would seem to fall under both categories. These terms are not defined in the Act or Guidelines. Counsel submitted that the proper interpretation must be that the categories are not mutually exclusive and an offence such as assault may fall into both categories. Counsel submitted that that was the case in relation to the Applicant where the offence involving the Applicant’s mother concerned was an offence which was both “against the person” as well as an “offence involving violence” as those terms are understood. Counsel submitted that the correct interpretation of Table 1 was that the conduct be treated by reference to the more serious of the available classifications where more than one classification was available. Counsel conceded that, despite its prescriptive terms, Table 1 is expressed to be a “guide only and does not represent all the various factors that are taken into consideration when assessing a person’s background”.
Counsel for the Respondent submitted that, while the Guidelines attempt to provide an indication of the way in which risk factors are treated, they do not reverse the onus contained in the Act regarding the circumstances in which the Commissioner must refuse registration. Counsel submitted that the Commissioner must refuse to register a person if the Commissioner is satisfied the person poses an unacceptable risk of harm to a vulnerable person and the Guidelines endeavour to provide assistance to the Commissioner by way of a clearly identified framework for assessing such risk.
In relation to the facts of this case, Counsel for the Respondent submitted that the Applicant had been convicted of an offence involving violence less than two years before the date of application for registration. That assault had involved a vulnerable person, namely, the Applicant’s mother, with whom the Applicant was living at the time, who had limited mobility and for whom the Applicant had a caring role. It was submitted that in circumstances where the Applicant had indicated in the application that she intended to work specifically in the area of disability services, the conviction of assault was correctly assessed as being directly relevant to the inherent requirements of the job the Applicant would be required to perform if registered. In this respect, the Respondent referred to the evidence of Mr Rynehart regarding the nature of work in the area of disability services, which was not contested by the Applicant.
Counsel for the Respondent submitted that it would be an error to conclude that, because the assault had not occurred in a work context and had occurred while the Applicant was in a state of intoxication, it could simply be disregarded. Counsel submitted that is neither possible, nor consistent with, the Act’s intent, to “fence off” aspects of a person’s past behaviour. The Act takes a precautionary approach in respect of the registration of persons for the purpose of engaging in regulated activities, and the question is not whether the risk of harm is “likely” but whether it is “unacceptable”. Thus, for the purposes of overall risk evaluation it was submitted that the Guidelines appropriately require consideration be given not only to the likelihood of harm but also the impact of the risk if realised. Counsel for the Respondent submitted that in the present case the Respondent properly took the view that the potential harm, if repeated in the context of a regulated activity, was serious and that, therefore, the risk of harm to a vulnerable person posed by the Applicant was unacceptable.
Counsel submitted that the relatively short period of time that has elapsed since the two recent criminal offences occurred is a factor of critical significance, and also relevant is the number of convictions disclosed in that the Applicant’s criminal history (extending back to 1988) which involve the use of alcohol or other non-prescribed substances. It was submitted that the length of time between the events in 2011 to current day is insufficient to satisfy the Tribunal that the risk posed by the Applicant has decreased to the point where it is no longer an unacceptable risk.
Counsel took the Tribunal to a number of comparative cases from other jurisdictions. In Chief Executive Officer, Department for Child Protection v Grindrod (No 2) [2008] WASCA 28, the WA Court of Appeal determined that the question the tribunal had to address under the legislation applicable in Western Australia was “…whether, on all the relevant information and other material properly before him or her, there was an ‘unacceptable risk’ that the applicant might, in the future, cause sexual or physical harm to children, in the course of carrying out child related employment” (at [85]). Counsel submitted that the phrase “unacceptable risk of harm”, where it appears in the WWVP Act, derives from the judgment in that case.
Counsel for the Respondent referred to a number of other cases including those to which the Applicant had made reference. Counsel pointed out that Woods v DPP is a decision in the context of criminal prosecutions and is of little assistance to the Tribunal in this matter, as is Department of Human Services v D R, which considered the phrase in the context of care and protection proceedings. The legislation in the ACT is unique in extending checking of suitability to work with vulnerable people beyond working with children.
Finally, the Respondent made submissions about what orders should be made should the Tribunal conclude that conditional or role-based registration was the correct or preferable decision. At the conclusion of the hearing, the Tribunal requested Counsel to provide written submissions addressing the question of the procedure which the Tribunal should adopt if it determined that conditional or role-based registration would be the correct or preferable decision in respect of the Applicant.
Counsel for the Respondent submitted that, if conditional registration is considered suitable, the Tribunal might either itself issue the Applicant with a proposed conditional registration notice or remit the matter to the Commissioner for reconsideration in accordance with a particular direction regarding conditional registration. If the latter course were taken, the Commissioner would be required to exercise further discretion regarding actual registration of the Applicant at a later stage, once a response to the proposed conditional registration notice had been received.
Counsel for the Respondent submitted that it would not be appropriate to issue a proposed conditional notice to the Applicant without including the following conditions:
(a)the Applicant must not have unsupervised contact with a vulnerable person;
(b)the Applicant must be supervised by one or more persons with general registration under the Act;
(c)conditional registration would be dependent upon the consent of a third party, namely, the Director of Disability ACT, as Disability ACT would need to be involved in the ongoing supervision of a reporting upon work performance of the Applicant; and
(d)conditional registration should be for one year only.
Written submissions in response by the Applicant
In the Applicant’s Response, Counsel for the Applicant asserted that the Applicant is being assessed as to her possible overall future conduct on the basis of past “one-off” conduct. It was submitted that the test for registration is evidence-based, and the evidence with respect to the acceptability of the risk posed by the Applicant falls in the Applicant’s favour. Her work colleagues’ and supervisors’ assessment of her work, is glowing. It was submitted that a fair-minded and comprehensive examination of the totality of the relevant evidence yields that the Applicant should be registered unconditionally. However, Counsel for the Applicant submitted that if the Tribunal took a contrary view, the Applicant had indicated she is willing to work under conditions that reduce the risk to an acceptable risk and such conditions could include supervision, random testing and “the like”.
Counsel for the Applicant submitted that Commissioner had failed to have regard to all the relevant circumstances in the Applicant’s case, and that these circumstances extended beyond a criminal record to encompass the relevant work history and other information. It was submitted that the Respondent’s explanations both in its written considerations and its oral evidence illustrated a fixation upon criminal history to the exclusion of positive evidence that dispelled any concerns that arise from the criminal history and that in this respect the Commissioner had disregarded the obligation to consider other relevant matters. In conclusion, the Applicant submitted that the correct and preferable decision would be that the Applicant be registered unconditionally. However, should the Tribunal consider there was a risk then that risk was capable of mitigation by the imposition of conditions.
CONSIDERATION
In this matter, as Counsel for the Respondent observed, the factual issues are of very narrow compass and are not in contest between the parties. The substantive issue is whether, having regard to those facts and applying a risk assessment made under the Risk Assessment Guidelines, the Tribunal is satisfied that the Applicant poses an unacceptable risk of harm to a vulnerable person and that this risk of harm cannot be mitigated to an acceptable level of risk by conditions upon the Applicant's registration under the WWVP Act. As noted in paragraphs 9 and 10, there were a number of subsidiary issues that fell to be determined in undertaking that task, which for convenience we will address as they become relevant
Procedural requirements of the Act – issue (a)
The WWVP Act includes a strict set of requirements around the submission of an application, processing of the application including the conduct of a risk assessment, capacity to refer applications in an independent expert panel for specialist advice, procedural fairness where a negative notice is contemplated, review rights and protection of personal information.
In this case, the Tribunal considers that the Respondent has properly complied with the Act in its handling of the Applicant's application. In particular, the Respondent:
(a)after disclosure of the Applicant's criminal history, undertook a comprehensive investigation of the evidence, including obtaining a clearance from OCYFS and obtaining a full transcript of the hearing of an assault charge in the Local Court. (This transcript provided a highly reliable account of the circumstances leading to conviction of the Applicant of common assault and the severity of the offence.);
(b)undertook a risk assessment (T documents 65-70) and placed the application and risk assessment before a RAC which made an unfavourable recommendation (T document 71) to the Delegate, Mr Josh Rynehart;
(c)complied with the requirement in section 37 of the Act to give notice of intention to refuse registration and to invite submissions from the Applicant (T documents 63-64);
(d)after receipt of further representations by the Applicant, conducted a reconsideration of the proposed decision, including a Revised Risk Assessment (T documents 17-18). The Reconsideration Delegate, Mr Jon Quiggin, made a decision on 5 November 2013 to issue a negative notice under section 40 of the Act (T documents 12-13). This Notice contained brief Reasons for Decision and gave adequate information to the Applicant about her right to review of the decision by ACAT, the availability of judicial review by the Supreme Court and the role of the ACT Ombudsman.
Characterisation of offences – issue (b)
Section 26 of the WWVP Act states that "relevant offence" means any of the offences listed in the section, including "(b) an offence against the person" and (c) an offence involving violence". These relevant offences are identified in Table 1 of the Risk Assessment Guidelines as being of different relative severity according to their importance as an indicator of potential level of risk to vulnerable people. Some offence categories, including "Offence involving violence unspent", are related to a very high level of severity (usually leading to a negative notice), while other categories are related to lesser levels of severity.
In Table 1 of the Risk Assessment Guidelines, an "Offence against the person unspent" is rated one level of severity lower than an "Offence involving violence unspent", raising the issue of how to characterise each type of offence as the outcome of the risk assessment may be affected by that characterisation. In this case, the offence of common assault would appear to fall within both categories. Counsel for the Respondent submitted that the proper interpretation must be that the categories are not mutually exclusive and an offence such as assault may fall into both categories. Where more than one offence category was available, the conduct should be treated by reference to the category of higher severity.
The Tribunal is not attracted to this proposed differentiation, as there is a wide range of severity between the offence of common assault and offences such as assault causing actual bodily harm (ABH) and assault causing grievous bodily harm. In this case, the Applicant has two convictions of common assault but her charge of ABH was dismissed by the magistrate because no prima facie case of "harm" was made out by the police evidence.
In this case, nothing flows from this issue and the Tribunal is not required to resolve the characterisation question because the outcome (the assessed level of risk) is not affected by the characterisation of the offence, but rather is determined by factors set out in Table 2 of the Risk Assessment Guidelines. The Commissioner may, however, wish to consider this issue of characterisation of offences in relation to the "continuous improvement" (page 1) of the Guidelines.
"Unacceptable risk of harm" and onus of proof – issues (c) and (g)
In written submissions, Counsel for the Applicant submitted that the phrase "unacceptable risk of harm" means "there is a sufficient likelihood of the occurrence of risk which, having regard to all relevant circumstances, makes it unacceptable". Counsel submitted that the "right to work" required a test that the risk be "real and appreciable". Counsel also submitted that there is an onus on the party claiming that there is an unacceptable risk of harm rather than on the Applicant.
The Tribunal does not accept these submissions.
In relation to the meaning of the phrase "unacceptable risk of harm", while there is no definition provided in the WWVP Act, the Commissioner, and on review of a decision the Tribunal, is not granted an unconstrained discretion to determine whether a risk is unacceptable or not in the relevant circumstances. The determination of an "unacceptable risk of harm" in any case is given subject matter, logical and systematic application and consistency through the mandatory application of the risk assessment process set out in the Guidelines. Significantly, Table 3 and the associated paragraphs demonstrate how "acceptable risk" and consequently "unacceptable risk" is to be determined, by reference to both impact and likelihood.
The Tribunal does not accept that the idea of a "right to work" has any relevance to consideration of whether a person poses an "unacceptable risk" of harm to a vulnerable person. There is no basis in the WWVP Act or associated legislation to conclude that there is an entitlement to continue in employment which has become a regulated activity, nor that the level at which a risk is considered unacceptable should be affected by an individual’s prior employment.
In proceedings of this nature there is no formal onus of proof, rather the determining authority must ultimately be satisfied on the evidence before it that there is an unacceptable risk of harm. The Victorian case of Woods v DPP cited by Counsel for the Applicant involved human rights considerations in the grant of bail which is a substantially different context to WWVP registration. The case of Grinrod cited by Counsel for the Respondent is more directly relevant to the ACT legislation under review.
The Tribunal accepts the submissions of Counsel for the Respondent in respect of the proper construction of the WWVP Act set out in paragraphs [120]-[123] above.
Relevance of actions in private life and actual employment in a regulated activity – issues (d) and (g)
Counsel for the Applicant submitted that, outside of the workplace and entirely partitioned from it, the Applicant has a range of criminal convictions, but there was no evidence as to any crossover between her criminal history and her work history. She had demonstrated safe working with vulnerable people for several years, and there were no adverse reports about her work performance, rather there are positive statements.
The Tribunal does not accept the submission that activities in private life can be partitioned out of the consideration of applications for WWVP registration. The WWVP Act explicitly draws in information about the private activities of an applicant. For example, sections 24 and 25 require provision of an applicant's whole criminal history and "non-conviction information", in relation to relevant offences. Section 28(2)(e) provides that the risk assessment guidelines must take into account "any other information the commissioner believes on reasonable grounds is or may be relevant in deciding whether, in engaging in the activity, the applicant poses a risk of harm to a vulnerable person". The test is one of reasonable relevance to risk, not the previous workplace activities of the applicant.
Counsel for the Applicant also submitted that the Respondent had failed to take account of important evidence – that the Applicant had for several years demonstrated good work performance as a disability support worker – as required by s 28(2)(e).
The Tribunal acknowledges that there was no evidence of risk arising from activities of the Applicant as a disability support worker with Disability ACT. Indeed, there was evidence from her employer, Ms Stratford, of good workplace performance and very supportive evidence from her supervisor, Ms A, about the Applicant's "remarkable patience and tact", Ms A's desire to employ the Applicant on a consistent, part-time basis, and Ms A's belief that the Applicant "poses no threat to any vulnerable people that she may work with now or in the future".
The Tribunal accepts the Applicant's submission that this evidence from the Applicant's workplace is relevant "other information" for the risk assessment. What is relevant to the risk assessment is not the observations on the overall quality of her workplace performance, but rather the evidence from her workplace of whether she demonstrably meets the inherent requirements of the job of working with vulnerable people - tolerance, self-control, compassion and professionalism.
Risk Assessment Guidelines – issue (e)
The Risk Assessment Guidelines were made by the Commissioner for Fair Trading under section 27 of the WWVP Act and commenced on 8 November 2012. Section 28(1) of the Act states that the risk assessment guidelines made under section 27 must provide for: (a) matters the Commissioner must or may take into account in conducting a risk assessment; and (b) how those matters must or may be taken into account. Section 28(2) specifies certain factors which must be included in the guidelines and section 28(3) gives an applicant a right to make submissions and requires the Commissioner to be satisfied on reasonable grounds that information taken into account is accurate.
After studying the Risk Assessment Guidelines and using them to conduct a Revised Risk Assessment on the Applicant, the Tribunal is satisfied that the Guidelines are properly authorised by the Act and do not improperly fetter the exercise of powers and discretions under the Act. In this respect, the Tribunal notes that Counsel for the Applicant did not seek to impugn the validity of the Guidelines, but rather sought to challenge the Commissioner's application of the Guidelines in the Applicant's particular circumstances.
At page 1 of the Risk Assessment Guidelines, it is stated that "the Guidelines are intended to be subject to continuous improvement". In the following paragraphs, the Tribunal makes some observations on the Guidelines for consideration by the Commissioner in this process of continuous improvement.
The substantive parts of the Risk Assessment Guidelines are contained in Attachment A to the Instrument of DI2012-190.
In relation to RISK IDENTIFICATION, the Guidelines list possible threats of harm: sexual, physical, emotional, financial, neglect or other risk, and seeks to identify these threats of harm through the application process. While the Act and the Guidelines identify five major sources of information for risk identification, the Guidelines tend to focus on criminal history and spent convictions (see Table 1) with little explanation of the treatment to be given to the four other factors: non-conviction information; previous negative notices; previous registrations under the Act or a corresponding law; and any other relevant information.
The Tribunal suggests that the Guidelines could be supplemented by an additional table or textual material discussing the use of these other factors in risk identification. For example, non-conviction information about a person's acquittal of a serious sexual offence, or information about a long history of domestic violence orders or apprehended violence orders (AVOs), may be very material to identification of risk.
[11] AS/NZS ISO 13000:2009 Risk management – Principles and guidelines
Criminal history
The primary source of risk that is examined by the Commissioner is the applicant’s criminal history. The criminal history check will identify spent[12] and unspent offences (the Act provides for the Commissioner to consider these convictions).
[12] A conviction is ‘spent’ (based on the definition under the Spent Convictions Act 2000) on completion of the relevant crime-free period (5 consecutive years if the person was not dealt with as an adult, or in any other case 10 consecutive years), or the conviction or findings were quashed or set aside, or the person was granted a pardon for the offence.
The Commissioner will consider the following characteristics of any relevant offence in the applicant’s history:
a)the nature, gravity and circumstances of the offence;
b)the relevance of the offence;
c)how long ago the offence was committed;
d)the age of the person and of the victim at the time of the offence;
e)whether the person’s circumstances have changed since the offence;
f)the applicant’s attitude to the offence;
g)if any treatment or intervention was undertaken, any subsequent assessment of the person;
h)if there is an equivalent offence in Australia (for an offence committed overseas);
i)number of relevant offences; and
j)any submission made by the applicant addressing the above.
For offences of the same category, the Commissioner will consider a spent conviction a lower risk to the vulnerable person than an unspent one. This is based on the significant period of non‑offending required for a conviction to be considered spent, and the fact that the offence could not have been deemed significant enough to attract more than 6 months imprisonment. However, the Spent Convictions Act 2000 prescribes that sexual offences, offences by a corporation, and offences where a penalty of six months or more imprisonment was imposed cannot be spent.
Non-conviction information
Another source of information on the applicant’s risk that may be examined is the applicant’s non-conviction history. Consent to access this information is given in the application and is obtained from Police. The Commissioner will consider the following characteristics of any relevant offence, or alleged relevant offence, included in the non-conviction information[13]:
[13] Non-conviction information is the following about an offence or an alleged offence: person has been charged with offence but; a proceeding for the alleged offence is not finalised, or charge has lapsed, been withdrawn or discharged, or struck out; person has been acquitted; person has had a conviction for the alleged offence quashed or set aside; person has been served with an infringement notice for the alleged offence; or person has a spent conviction for the offence.
a)the nature, gravity and circumstances of the offence or alleged offence;
b)the relevance of the offence or alleged offence;
c)how long ago the offence or alleged offence was committed;
d)the age of the person and of the victim at the time of the offence or alleged offence;
e)the truthfulness, completeness and reliability of any information or evidence provided by the person who made the allegation;
f)the nature, extent and outcome of any investigation into the offence or alleged offence;
g)any formal statement made by the applicant to a Police officer;
h)any evidence given by the person in a court proceeding for the offence or alleged offence;
i)whether this was the person’s first offence or alleged offence; and
j)any submission made by the applicant addressing the above.
Non-conviction information about alleged offences will carry significantly less influence in the assessment of risk as there was insufficient evidence for a conviction. Where there is a history of recurrent alleged relevant offences the applicant will be asked to make a submission providing further information.
The outcome of a risk assessment will not be determined solely on the basis of any non‑conviction information. Information obtained from a criminal history check and other entities will be also be considered.
Previous negative notices
If a person was issued a negative notice more than three years ago, the circumstances will be examined by the Commissioner. If the negative notice (or equivalent) was given by the Issuing Authority in another State or Territory they will be contacted for further information with the applicant’s consent. Due to the ACT not applying disqualifying offences, it may be possible in some circumstances for a person refused in another State or Territory to receive registration in the ACT.
If the notice was issued by the Commissioner within the previous three years, the applicant is ineligible to apply for registration unless there has been a change in circumstances; such as a change in the status of the offence (i.e. becomes spent, is acquitted of a pending charge, or is quashed) or an employer/prospective employer is now available to support the applicant in mitigating previously identified risks to achieve role-based registration.
Previous registrations
If a person has held an equivalent registration (to work with children or vulnerable people) in another State or Territory cancelled or suspended; with the applicant’s consent, the Commissioner will contact the Issuing Authority to establish the circumstances. The applicant may provide a submission to the Commissioner in support of their application.
Any person holding a conditional or role-based registration (or equivalent) in another State or Territory will be subjected to the full risk assessment process. The Issuing Authority or previous employers, with the applicant’s consent, may be contacted for further information.
Where a person holds a current general registration for working with children and/or vulnerable people (or equivalent) in another State or Territory, unless there has been a change in circumstances since approval (as indicated in a criminal history check – which all interstate applicants will be subject to), the Commissioner will usually issue a general registration.
Other information
The Commissioner will consider any information obtained from other sources during the risk assessment process if believed it is, or may be, relevant to determining whether the applicant poses an unacceptable risk. This includes information obtained from other government authorities (including, but not limited to, the Courts, Police, Care and Protection agencies, professional regulatory or registration authorities), employers, the applicant, or other public sources.
Where an applicant has indicated that they were previously registered as a health professional or health practitioner, with the applicant’s consent, the Commissioner will contact the relevant regulatory or registration authority, or other complaints bodies to obtain further information about any suspensions, cancellations or disciplinary action.
In considering information obtained from other sources the Commissioner will take into account:
a)how the information was obtained;
b)the relevance of the information;
c)the truthfulness, completeness and reliability of the information; and
d)any submission made by the applicant addressing the above.
As this scheme affects a broad number of activities and people it is not possible to outline every potential consideration or outcome. The tables below identify the minimum considerations should a criminal history check, non-conviction history, registration history, or other information examined during the risk assessment identify a relevant offence/s or alleged offence for further scrutiny.
The Commissioner will only consider the facts of the offence.Any conclusions reached, about a person’s risk when engaged in a regulated activity with vulnerable people, will have an evidentiary basis; relying on statements from professionals, employers, referees or reports on incidents as evidence to support these variables.
Table 2.Summary of factors considered by the Commissioner
Where information is available and relevant the Commissioner will consider the following matters:
| Characteristic | Consideration[14] | Possible evidence[15] | Impact on risk level[16] |
| Nature of offence or alleged offence | Abuse of power or breach of trust | Statement of facts/Prosecution brief Criminal history check Non-conviction information | ↑ |
| Pre-meditated or wilful action to harm | ↑ | ||
| Committed against a vulnerable person | ↑ | ||
| Used force or weapons | ↑ | ||
| Unlawful deprivation of personal liberty | ↑ | ||
| No identifiable victim | ↔ | ||
| Sexual offence | ↑ | ||
| Gravity of offence or alleged offence | Penalty imposed: Imprisonment (including suspended) Penalty other than imprisonment Maximum imposed | Criminal history check | ↑ ↔ ↑ |
| Impact on victim | Victim Impact Statement Statement of facts/Prosecution brief | ↔ | |
| Pattern of escalating severity/seriousness | Criminal history check | ↑ | |
| Circumstances of the offence or alleged offence | Intoxicated during offence/alleged offence: Non‑recurring | Submission Statement of facts/Prosecution brief Psychological/Professional reports Police or witness statements Non-conviction information | ↓ |
| Diminished capacity due to mental state at time of offence/alleged offence | ↔ | ||
| Diminished insight at time of offence/alleged offence | ↔ | ||
| Overseas offences | Equivalent offence in Australia | Criminal history check from other country | ─ |
| Equivalency of the penalty imposed in foreign country to maximum penalty in Australia | ↔ | ||
| Characteristic | Consideration | Possible evidence | Impact on risk level |
| Number of offences or alleged offences | Multiple convictions/allegations for same type of offence | Criminal history check Non-conviction information | ↑ |
| Multiple convictions/allegations over time | ↑ | ||
| Single offence or alleged offence | ↓ | ||
| Change in circumstances since offence | Mental health/illness/insight/problematic alcohol and/or other drug use: Improvement or managed | Treatment plan Professional reports/assessment | ↓ |
| Maturity or change in behaviour (demonstrated) | Referee report Submission | ↓ | |
| Greater social support or stability | ↓ | ||
| Change in socio-economic factors that influenced the circumstances that led to the offence(s) | Submission Statement of facts/Prosecution | ↓ | |
| Timing | Lapse of time since last offence or alleged offence: less than 1 year 1-5 years 5+ years (except child sexual offence) | Criminal history check | ↑ |
| Alleged/Committed over extended time Repeated Frequent Spontaneous | Criminal history check Statement of facts/Prosecution brief Non-conviction information | ↑ ↑ ↑ ─ | |
| Age | Age of applicant at time of first offence: Before 14 yrs After 14 yrs | Criminal history check | ↑[17] ─ |
| Age of victim: under 18 or elderly | Statement of facts/Prosecution brief | ↑ | |
| Significant difference in age/mental capacity between victim and applicant | ↑ |
[14] These are indicative and do not represent an exhaustive list of considerations. The Commissioner will only consider these factors where there is available evidence. The applicant may make a submission in relation to any matter listed in this table.
[15] These are indicative and do not represent an exhaustive list of possible sources of evidence. Applicant’s consent will be obtained where an entity requires it.
[16] These are indicative; various combinations of factors and the applicant’s individual circumstances will influence the specific change in risk. ↑ represents an increase to the risk/significance. ↓ represents a decrease to the risk/significance. ─ represents no impact on the risk/significance. ↔risk level is dependent upon other circumstances of the offence/alleged offence.
[17] Age is an increased risk factor only where the first offence preceded a history of criminal activity.
| Attitude towards offence | Accepted responsibility and/or apologised | Submission Statement of facts/Prosecution brief Professional reports/assessment | ↔ |
| Expressed remorse[18] | ↓ | ||
| Expressed regret | ─ | ||
| Timing: expressed upfront or at time of offence or conviction Expressed after significant lapse in time or for personal benefit | ↓ ─ | ||
| Accepted treatment and/or need for change | Enrolment/graduation in treatment program | ↓ | |
| Multiple breaches of court orders | Criminal history check | ↑ | |
| Assessment[19] following treatment | Demonstrated improvement in area of concern | Treatment program/professional report Statement of facts/Prosecution brie | ↓ |
| High risk of relapse | ↔[20] | ||
| Implications from failure to complete mandated treatment or engage with professional support | ↑ | ||
| Implications from multiple withdrawals or non-graduation from voluntary treatment | Submission Treatment program/professional report | ↔ | |
| Relevance of offence or alleged offence | Nature of offence is inherent to the requirements of the regulated activity[21] | Application form Criminal history check Employer information | ↑ |
| Nature of offence is not relevant to the requirements of the regulated activity | ↓ |
[18] There is a legal difference between remorse and regret. In essence, remorse requires an admission of guilt and recognition of the impact of the individual’s actions on the victim (empathy); whereas regret is an emotional response, which can range from disappointment to sorrow, that may not include repentance or empathy. Remorse and regret will only be considered where assessed by a qualified professional or stated in a Court document.
[19] Assessment will only be considered where they are a qualified professional.
[20] Relevant when relapse would directly increase identified risks or impact on the inherent requirements of the regulated activity or role.
[21] The type of offence and its relevance will be given greater consideration where a specified activity or role is identified.
The Commissioner will also give consideration to the following when evaluating information provided in relation to the risk assessment:
| Characteristic | Consideration[22] | Possible evidence | Relative weight given to info[23] |
| Truthfulness, completeness and reliability of information | Competent, reliable and credible witness | Statement of facts/Prosecution brief Court decision Complaint information | ↗ |
| Unbiased or unconnected witness | ↗ | ||
| History of fraud or deception | ↙ | ||
| How information was obtained | Obtained from a public authority | Statement of facts/Prosecution brief Complaint information | ↗ |
| Anonymous tip-off | ↙ | ||
| Nature, extent and outcome of investigation | Insufficient information for investigation | Statement of facts/Prosecution brief | ↙ |
| Full investigation, with witness statements | ↗ | ||
| Evidence given by applicant in defence; formal statement or in Court | Consistent with information provided by applicant, in application, and by other sources utilised by Commissioner | Statement of facts/Prosecution brief Court documents Submission | ↗ |
| Evidence was tested in a court of law | ↗ | ||
| Submissions from applicant | Submission provides rationale for actions, cause or circumstances, supported by evidence where available | Professional reports/assessment Statutory Declaration Referee report Statement of facts/Prosecution brief | ↗ |
| Submission outlines change in circumstances and reasons for change | ↗ | ||
| Inconsistent with objective facts of a matter (where known) | ↙ |
[22] These are indicative and do not represent an exhaustive list of considerations.
[23] ↗ represents increased weight given to information. ↙ represents reduced weight given to information.
Further considerations
Personal and/or professional referees
The Commissioner will generally give greater weight to references from referees who have known a person for an extended period of time and who may have specific knowledge of the offence/s and any subsequent change in behaviour or circumstances; or are qualified to make inferences about any change in behaviour or circumstances.
This information will generally only be requested by the Commissioner where a decision cannot be made without it, and is relevant to the current consideration. However, the applicant may provide any further relevant information that they believe supports their case at any time.
Number and seriousness of relevant offences:
If the criminal history check has multiple offences, the Commissioner will assess the potential risk to vulnerable people by considering offences in the context of the relative risk matrix on page 6.
If the multiple offences are of varying severity, the Commissioner will firstly consider the offence that has been identified as having the greatest risk as the trigger for the risk assessment process.
Lived experience
The Commissioner acknowledges that some individuals, by virtue of their history, have valuable lived experience to share with vulnerable people accessing a regulated activity or service, and that people can make significant changes in their lives. These experiences may, in some circumstance, also increase the risk of harm; however, they do not automatically preclude general registration.
Depending on the individual’s circumstances, the applicant may need to demonstrate that these risks can be mitigated sufficiently to meet the requirements for a role-based or conditional licence.
Inherent requirements of the job
A primary consideration of the Commissioner is that the risks relate to the type of registration applied for. Where general registration is requested, risks will be considered equally for all regulated activities, regardless of whether the applicant has indicated they will only work with a specified type of vulnerable person.
If a person applies for (or the Commissioner recommends) conditional or role-based registration, the impact of the risks will be considered specifically within the context of the regulated activity the person works in or the type of vulnerable person they work with.
Actions following identification and analysis of risks
Request further information: Where there is insufficient information to assess identified risk/s that impact on the person’s ability to engage with vulnerable people, the Commissioner, or a delegate, will request further information from the applicant or other agencies on the nature and severity of the offences or alleged offences.
How the applicant addresses the Commissioner’s request is up to them; however documentation that may assist the Commissioner includes (but is not limited to): a statement of facts on the matter; the finding and summary of the court decision; references from the applicant (personal and/or professional); evidence of completion of a justice program or satisfactory completion of parole; or any other information the applicant believes supports their application.
Where the applicant is supported by their employer, with the applicant’s consent, the employer can provide evidence of implemented workplace-based measures (either organisational or individual) that mitigate the identified risks. The Commissioner will work with the applicant and named employers to ensure the measures sufficiently mitigate the risks and are acceptable to all parties.
The Commissioner is authorised under section 33 of the Act to seek information or advice from any entity considered relevant in the risk assessment process.
Referral to internal advisory committee: The Commissioner may consult relevant officers within the Office of Regulatory Services. Officers will review complex cases and together recommend options to the Commissioner, which may include referral to Independent Advisors.
Referral to Independent Advisors to the Commissioner: Independent Advisors are appointed by the Commissioner under the Act to give independent advice to the Commissioner about any aspect of the risk assessment. A member’s appointment to the advisory panel will be dependent on qualifications, expertise and/or experience in relevant fields including, but not limited to, forensic or clinical psychology, psychiatry, criminology, domestic violence, children and young people, refugees and migrants, alcohol and other drugs, and mental health.
When requesting advice, the Commissioner will write to a minimum of three Independent Advisors. The request will provide a summary of the current status of the risk assessment and identify the specific matters of concern the Commissioner requires to be addressed by the advisor – this may be limited to the advisor’s area of expertise or experience. The advisor will have access to all relevant information obtained on the applicant with all personal information de-identified. The advisor will be given a minimum of 10 business days to respond in writing addressing the Commissioner’s concerns and, if requested, provide a recommendation for registration.
The Commissioner will, unless otherwise satisfied, consult with Independent Advisors prior to issuing a proposed negative notice, and may consult with them on proposed role-based registrations. Applicants will be advised when an application is to be referred for advice.
RISK EVALUATION
Risk evaluation is the process by which the Commissioner compares the results of the risk analysis (background checking) with the risk criteria to determine whether the risk, and/or its magnitude, is acceptable.
What is acceptable risk?
Following consideration of an applicant’s background, the Commissioner will determine whether identified risk factors (criminal history, non-conviction information, previous registration, previous negative notices and other information) require mitigation to be acceptable for the purposes of issuing a registration.
Where there is a very low or low level of risk this is acceptable without any mitigation. A moderate or high level of risk requires mitigation (i.e. conditions) to reduce the risk to an acceptable level. A critical level of risk is unacceptable (i.e. applicant will be issued with a proposed negative notice).
Table 3.Risk Rating Matrix.
| Impact | Likelihood | ||||
| Rare | Unlikely | Possible | Likely | Almost certain | |
| Catastrophic | Moderate | High | High | Critical | Critical |
| Major | Moderate | Moderate | High | High | Critical |
| Moderate | Low | Moderate | Moderate | High | High |
| Minor | Very low | Low | Moderate | Moderate | Moderate |
| Insignificant | Very low | Very low | Low | Moderate | Moderate |
Outcomes following risk evaluation
The registration scheme has been designed to provide flexibility; with general, conditional and role-based options for registration. The outcome of the risk assessment, including consideration of any submissions made by the applicant, will influence the type of registration that can be issued.
There are four potential outcomes of the risk assessment:
General registration: Where there is no evidence of risk, or an acceptable risk, of harm to vulnerable people, applicants will be issued with general registration for a period of not more than three years.
People who are granted general registration are able to move between employers or volunteer positions without reapplying.
Conditional registration: Where identified risk/s requires mitigation to be acceptable, the Commissioner will propose conditional registration. Conditional registration may be broad (John may work in X, Y and Z regulated activities) or specific (Jane may not drive a vehicle with a vulnerable person as a passenger in the course of their role) and will be designed according to the specific risk/s identified during the risk assessment process.
The applicant can request reconsideration of any proposed conditions. The Commissioner will consider any new or corrected information provided before making a decision.
The Commissioner will inform the employer (where named) of the conditions placed on the individual’s registration but not the reasons for doing so.
Conditional arrangements are transferable and do not require nomination of a specific employer.
If the person’s circumstances change during the period of registration, the Commissioner also has the capacity to amend a person’s application or registration, and may issue a higher level of registration if satisfied that a conditional or role-based registration is unnecessary.
Role-based registration: This is a specific type of conditional registration where certain employer/workplace‑based measures are required to mitigate identified risks. This type of registration restricts a person to engagement in a specified regulated activity and requires support and input from a named employer; for example, a person may only work as a counsellor in a particular mental health program.
The Commissioner will assess the organisational capability of the employer, and the controls in place to support that person in their employment, based on the information provided in support of the applicant. Role‑based registration decisions will be made on a case-by-case basis in consultation with the applicant.
Role-based arrangements are not transferrable and the person cannot move freely between regulated activities or employers.
Negative Notice: Where a person has committed offences, or has a history of non‑conviction or other information which indicates that they pose an unacceptable risk of harm to vulnerable people accessing regulated activities or services, the Commissioner will issue a proposed negative notice.
The notice will outline the process for requesting a reconsideration of the proposed negative notice. If reconsideration is requested the Commissioner will conduct a revised risk assessment and consider any new or corrected information provided.
If no further information is received, or additional information does not satisfy the Commissioner that the risk of harm is reduced, a negative notice will be issued.
MONITORING OF REGISTERED PEOPLE
At any time during the period of registration the Commissioner may seek information or advice from an entity if it is believed that they may be able to give advice that is relevant to whether a registered person continues to pose an acceptable risk of harm to a vulnerable person.
If it is believed there is new relevant information the Commissioner will write to the registered person notifying them that an additional risk assessment will be conducted in accordance with the Guidelines. The person may make a submission to support their case.FURTHER INFORMATION
Further information on the Working with Vulnerable People Background Checking System and related legislation can be located as follows:
ACT Legislation Register:
ORS website Rights Commission:
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