Adults accused of child abuse crimes can still work alongside under-age employees in retail and hospitality settings under a gap in the ACT bail laws, a retail union has argued.
An ACT Legislative Assembly inquiry into a bill seeking to amend the Bail Act has heard children working in supermarkets, retail stores and other venues are slipping "through the cracks" of child protection measures.
However, senior ACT lawyers have warned a mandatory condition could have unintended detrimental consequences, including unfairly restricting young offenders, and courts already imposed strict bail conditions on individuals in most child abuse cases.
Shop, Distributive and Allied Employees Association (SDA) branch secretary Bernie Smith told the inquiry most working with children protections were designed for people providing a service to children rather than working alongside them.
"That's where we see a significant failing in the act," he said.
"We've seen too many examples across the country of young workers exposed to this risk and actually being assaulted or suffering from grooming practices that we think that their safety and wellbeing should take precedence."
The SDA called for a mandatory bail condition to be imposed on individuals charged with child-related offences, where the person agrees not to engage in or apply for child-related work, as well as changes to the ACT's Working with Vulnerable People Act.
Mr Smith gave an example of a retail manager accused of child sex offences, who he said would not be prevented from working in a store alongside child workers while on bail.
He said the union was unwilling to leave the protection of vulnerable young people, many entering the workforce for the first time, to the discretion of lawyers, judges or magistrates.
"Having stable employment is actually something that goes in favour of granting bail," he said.
However, Legal Aid ACT chief executive John Boersig said the issue could be managed by tighter bail conditions during the application process in court, when concerns could be raised by police or the prosecution.
"If the court is sufficiently concerned about a risk to children, in our experience it will implement conditions restricting access to children ... for example, restricting access to children in private places, distance restrictions from schools, playgrounds etc," he said.
"[I] query whether this sufficiently mitigates risk raised by the union without needing someone to lose their employment on the basis of unproven allegations."
Mr Boersig said the organisation would not be generally supportive of a mandatory condition as the union's definition of child-related offences was broad, and accused individuals were entitled to the presumption of innocence.
Hugo Law Group partner Adrian McKenna agreed, saying it was the responsibility of the prosecution to ask for stricter bail requirements on a case-by-case basis and mandatory conditions could have unintended consequences.
"For example, [under the proposed mandatory condition] a 16-year-old charged with a technical child sex offence, but it's only a few years' difference in age ... can't work anywhere where there's any other child until the matter's finished," he said.
The lawyer said that anecdotally, it was not common for adults accused of child abuse to be bailed to work in retail or hospitality alongside under-age employees in the ACT.
A Woolworths spokesperson said all candidates were required to disclose any criminal convictions prior to employment.
This masthead understands that major supermarket chains, including ALDI and Coles, manage criminal issues on a case-by-case basis. It is understood ALDI conducts mandatory police checks for people management positions as part of onboarding, and all roles consent to being police checked.
However, Mr McKenna said the ACT government's Bail Amendment Bill could have considered laws on the presumption of bail, which is often neutral or in favour of release for first-time child sex crimes. That means the court is more likely to grant bail to the alleged perpetrator.
"I resonate with the idea that whilst the new bail laws are helpful, it probably was a missed opportunity to revisit how our presumptions system works," he said.
