I rise today to address the amended Motion (Motion 189) passed by this House on 28 September 2023 requiring the Government to report back with options to independently investigate the issues raised by the Commission in Volume 1, 5.1 Challenges we faced, by 17 October 2023.
In handing down their report, the Commissioners advised that they had found it “difficult and in some cases impossible” to make some of the adverse comments or findings they might otherwise make due to legislative and accountability challenges relating to the Commission’s processes as outlined in the Commissions of Inquiry Act 1995.
In identifying these challenges, I am aware a level of concern has arisen in the community that some individuals who may not have been made the subject of findings, due to the operation or interpretation of law, may not be held accountable for their actions or omissions.
I want to assure this Parliament and the Tasmanian people that our government will act to ensure that we respond to these concerns, investigate any allegations, and make certain that all issues have been identified and addressed.
Today our government has announced two important independent reviews to do just that.
It is important to note that the Commission’s indication that it could not include findings in its report is a statement regarding the content of the report’s publication – it is not a statement that relevant individuals who the Commission has identified will not be held accountable.
The Commission identified two main legislative challenges to their work being Section 18 and 19 of the Commissions of Inquiry Act 1995 and Section 194K of the Evidence Act 2001 and their operations in the Commission’s process.
To ensure these issues are considered appropriately, and independently, the Attorney has made a referral to the Tasmanian Law Reform Institute. One of the functions of the Institute is to conduct reviews and research on proposals for reform of law and
as such possess the necessary knowledge and understanding of Tasmanian law. They have undertaken a similar task before, having produced a report regarding the Commissions of Inquiry Act in 2003.
The terms of reference for any such review will be considered as a matter of priority.
Subject to the Board’s approval, the Tasmania Law Reform Institute has been asked to examine and report on the operation of the Commissions of Inquiry Act 1995, and section 194K of the Evidence Act 2001 (Tas) and whether there is a need for an extension of the powers of a Commission of Inquiry. It will also investigate any statutory limitations identified by the Commission of Inquiry’s final report – specifically the appropriateness of sections 18 and 19 of the Commissions of Inquiry Act 1995 – and make recommendations for any necessary legislative change.
The TLRI final report will be made public, and our government will consider all their findings and, where necessary, seek to amend relevant legislation as quickly as possible.
As I have previously mentioned, the Commission’s indication that it could not include findings in its report is a statement regarding the content of its publication – it is not a statement that relevant individuals who the Commission considered had engaged in misconduct and broken the law will not be held accountable.
Section 34A of the Commissions of Inquiry Act is the mechanism by which the Commission raised issues of concern with the State. Their report states they made some 230 referrals in respect to over 100 individuals to Tasmanian and other authorities.
I am confident that all entities that have received these 34A referrals have acted expeditiously and appropriately in response.
To make sure that this is the case, the Department of Justice will request each Tasmanian Government Agency, Tasmanian Regulator, and related Commonwealth entities to provide information regarding all section 34A referrals received, for the purpose of auditing and reviewing these concerns.
I will also write to the three former Commissioners of the Inquiry to confirm that they are satisfied that the Commission made all necessary section 34A referrals.
In addition, my letter to the former Commissioners will seek their confirmation relating to the issuing of misconduct notices.
Specifically, we want to confirm if any of the 30 misconduct notices formally issued relate to individuals who the Commission was unable to make a finding against because of issues relating to time limitations and/or legislative constraints.
Following receipt of this information the State will take any additional steps including but not limited to, making any referral to regulators.
I understand that in highlighting these difficulties, there is a mistaken perception that some State Servants and other individuals have not, or will not, be held accountable. I want to stress that this is not the case.
We will endeavour to provide the community with as much information as is permitted by law. I have tasked my Department to prepare and publish a specific routine disclosure regarding the relevant process for these referred individuals.
Additionally, in advance of the receipt of the Final Report, my government took action to put in place cross agency processes to make sure that all concerns are responded to.
In August we established the Joint Safety and Accountability Team (JSAT) to undertake an urgent assessment which involved determining that all alleged perpetrators had been:
- reported to Tasmania Police
- reviewed by the Registrar, Registration to Work with Vulnerable People
- checked by the Department for Education, Children and Young People to ensure that there were appropriate entries on the Child Protection Information System; and
- checked in terms of their current employment status.
This process identified 34 alleged perpetrators. I will outline actions with respect to these individuals shortly.
Phase two of this work has now commenced and includes an audit of all databases that may contain allegations of child abuse to ensure all matters have been appropriately reported.
This work will exceed the Commission of Inquiry expectations and will consider institutional abuse more broadly. And the JSAT has the power to review their program of work and expand it should more information come to light as part of their review.
There are a range of categories of current and former State Servants identified in the Final Report from ‘alleged perpetrators’ to employees mentioned as part of other commentary.
I want to be very clear, any allegations of child sexual abuse made against a State Servant in the Report led to their immediate removal from the workplace and notification to relevant external agencies.
In some cases a process has already been undertaken and they have either left the state service or, following investigation, it has been deemed appropriate that they return to work.
All allegations are reported to Tasmania Police. Police have laid charges related to 10 matters against 9 people relating to child sexual abuse.
All agencies are required to report suspensions due to these allegations to the Head of the State Service, and all reported suspensions are included in the Routine Disclosures provided on the Department of Premier and Cabinet’s website. Any employee suspended since October 2020 when the Routine Disclosures began are included on this report.
The findings and individual circumstances of other State Servants identified in the Report are currently being considered by Heads of Agency.
Each relevant Head of Agency is working through an agreed process whereby any behaviour or conduct that is deemed inappropriate will be assessed for a potential breach of the State Service Code of Conduct.
It is my expectation that the assessment being undertaken by each Head of Agency will cover all people who have received section 34 and a section 18 notices, where known.
Seven of the 34 alleged perpetrators identified in the JSAT process are current State Servants. All seven are employed by the Department for Education, Children and Young People.
Of these seven individuals, five are currently subject to a disciplinary process under employment direction 5.
Disciplinary processes have been completed for two employees. The matters were fully investigated, and the staff were deemed able to return to work.
A series of referrals have been made to Regulators, including the Australian Health Practitioner Regulation Agency (AHPRA) and the Teachers Registration Board.
The Head of the State Service will write to Heads of Agencies to confirm that all matters have been referred.
Several concerns have been raised recently, both through the media and directly to the State Government, about legal assistance being provided by the Government to current and former state servants who are the subject of findings made by the Commission of Inquiry.
Employment Direction No. 16 (ED16) specifies the circumstances in which indemnity and legal assistance may be granted to a public officer, or former public officer, employed under the State Service Act 2000.
The Direction notes that any independent legal assistance paid for under the policy may need to be repaid if the public officer did not at a relevant time act in good faith.
ED16 has been used to grant independent legal assistance to 26 individuals.
The Attorney has also asked his department to establish an independent review into whether Public Officers who received a grant of legal assistance during the COI acted in good faith, and if not, whether they should be required to reimburse the Crown for expenses incurred.
Finally, our government is committed to acting on the recommendations, findings and information gathered by the Commission of Inquiry. We are also committed to maintaining public confidence in the actions taken, including action to hold those responsible to account.
An independent audit of all the actions taken in response to the information and concerns raised by the Commission regarding public officers employed in the State Services will be undertaken, with the results tabled in this place and any suggestions or findings acted on.
This is just the beginning of our response. The Commission’s report makes it clear that there is much more work ahead of us, but we will continue to make sure that we hold all of those identified to account and rebuild the Tasmanian community’s trust in our government institutions.
I want to assure members there is a lot more detail in relation to this. Given a number of these matters relate to legal or employment matters, our government has arranged for the briefing of members which will be scheduled later this week with the relevant Secretaries.
Keeping children safe and implementing all 191 recommendations of the Commission of Inquiry report remains our government’s highest priority.
