Sussan Ley (Farrer, Liberal Party, Shadow Minister for Justice and Customs) Share this | Hansard source

I rise to speak on the Crimes Amendment (Working With Children—Criminal History) Bill 2009. The coalition supports the objectives of this bill. However, amendments may be moved in the Senate pending the recommendations of the Senate Legal and Constitutional Affairs Legislation Committee on the bill, which are due today. The safeguarding of children from sexual, physical and other abuse should be a key priority for all Australian governments. The COAG agreement which forms the basis of this bill aims to enable the interjurisdictional exchange of information for people working with children.

Protecting children from harm is the paramount objective of the bill. At the same time, it is important for society to afford opportunities for offenders to rehabilitate themselves and find gainful employment. There appears to be broad community acceptance of the necessity of some form of working-with-children check in ensuring the safety of children. However, notably, there is also an emerging debate about issues relating to the expansion of criminal records checks in general. In Australia, there has been a significant increase in requests for criminal record checks in recent years. Between 2004-05 and 2007-08, requests to CrimTrac, the national criminal record agency, increased by 73 per cent, from 1½ million to 2.6 million. Requests to the Australian Federal Police increased by 57 per cent, from 350,000 to 550,000 in the same period. It is interesting to note that other countries have also experienced the same significant increases—for example, in England and Wales between 2002-03 and 2008-09 the number of such checks nearly tripled, from 1.4 million to 3.85 million.

The proposed amendments in the bill before the House today would create an exception for convictions of persons who work or seek to work with children so that those convictions can be disclosed to and taken into account by Commonwealth, state and territory screening agencies in determining whether a person is suitable to work with children. The bill contains amendments to part VIIC of the Crimes Act 1914. Part VIIC covers the disclosure and nondisclosure of pardons and quashed and spent convictions. Part VIIC provides that a person whose conviction is spent, pardoned or quashed does not have to disclose the fact of the conviction, prohibits others from disclosing the conviction without the person’s consent and prohibits them from taking the conviction into account.

The amendments would create an exception for convictions of persons who work or seek to work with children so that those convictions can be disclosed to and taken into account by Commonwealth, state and territory screening agencies in determining whether the person is suitable to work with children. In particular the amendments: repeal existing exclusions in division 6 that relate to the disclosure of spent convictions information in relation to the care, instruction or supervision of a minor; replace the existing exclusions with new exclusions that allow the disclosure of information about a person’s spent, quashed and pardoned convictions to or by a prescribed person or body, permitted or acquired by or under a prescribed law, to obtain and deal with information about persons who work or seek to work with children; and are for the purposes of obtaining or dealing with such information in accordance with the prescribed law.

The amendments also define ‘child’ and ‘work’ for the purposes of the new exclusions and specify criteria that screening units must meet before they can be prescribed, to enable them to obtain and deal with Commonwealth criminal history information. These criteria reflect the requirements of COAG agreements and include compliance with applicable privacy, human rights and records management legislation, natural justice principles and implementation of risk assessment frameworks. The amendments require the Minister for Home Affairs to cause a review of the operation of the new provisions to be conducted after an initial trial period.

The bill implements the COAG agreement of 29 November 2008 to facilitate the interjurisdictional exchange of criminal history information for people working with children, including information about spent, pardoned and quashed convictions. That is the background to the bill before us. An extract from the communique on the significant COAG meeting of 29 November 2008 reads:

Leaders agreed in principle at the April 2007 COAG meeting to a framework to improve access to inter-jurisdictional criminal history information by child-related employment screening schemes.

COAG at this meeting affirmed the importance of an inter-jurisdictional exchange being put in place as soon as possible, and endorsed a set of implementation actions, the establishment of a project implementation committee under the auspices of COAG and an implementation plan.  The implementation plan includes that jurisdictions will prepare, introduce and seek passage of legislative amendments within nine months, to enable the information exchange to commence in 12 months.  COAG noted that all jurisdictions, with the exception of Victoria and the Australian Capital Territory, would exchange information on non-conviction charges for screening of people working with children.

As part of the agreement, each jurisdiction is required to remove any legislative impediments to the exchange of criminal history information for people working with children. The bill removes legislative barriers at the Commonwealth level to ensure that the Commonwealth can provide information in accordance with the COAG agreement.

As noted in the bill’s explanatory memorandum, under the Commonwealth spent convictions scheme, a person’s conviction is automatically spent on the expiration of a waiting period. The waiting period is five years if the offender was a juvenile when convicted of the offence or 10 years if the offender was an adult when convicted of the offence, regardless of when the offence was committed. The scheme only applies to convictions which did not result in the offender being sentenced to imprisonment at all or where a term of imprisonment was not more than 30 months and the waiting period has expired.

As I mentioned earlier, a comprehensive regime for assessing people who work or seek to work with children must be balanced with a person’s right to rehabilitation, privacy and employment. Accordingly, the use and disclosure of extended criminal history information will be subject to stringent safeguards and conditions. One safeguard included in the bill is that the criminal history information received may be used only for the limited purpose of assessing the risk that a person may pose in working with children. The information may not be used for the purpose of a general integrity or employment suitability check. A potential employee’s criminal history information will not be given to their employer; the employer receives only a ‘yes’ or a ‘no’ from the screening unit. A person can appeal the decision of a screening unit and is able to review the reason that they received a ‘no’ decision. A 12-month trial of the new sharing arrangements starts in November 2009 between agents that already have screening units.

The Senate Standing Committee on Legal and Constitutional Affairs inquiry is worth noting at this point. I wish to review some submissions to that inquiry. Bravehearts, as a non profit organisation specialising in child sexual assault, wrote in their submission:

Information sharing is our best weapon for protecting our children. Sharing powers would allow the federal, state and territory bodies to better assess the suitability of those seeking to work in areas that involve significant contact with children. Bravehearts thoroughly supports the Crimes Amendment (Working With Children—Criminal History) Bill allowing for information to be shared on pardons quashed and spent offences.

Bravehearts, however, believes the bill does not go far enough and would:

…also like to see consideration given to extending background checks to include, for example, disciplinary hearings, diversionary programs, employment history and overseas checks.

The Australian Childhood Foundation’s submission to the Senate committee stated:

We believe that information relating to charges withdrawn or not proven should not be excluded. The decision to exclude such information does not take into account the problems of child sexual abuse and the overwhelmingly poor rate of prosecution and convictions for child sexual offences.

In conclusion, the ongoing monitoring, training and supervision of employees who have access to children are critical to minimising the incidence of child sexual assault. In order to achieve the best possible child protection measures it is essential that there is a comprehensive approach that combines both effective screening and safe government and organisational practices and policies. As I noted at the commencement of these remarks, the coalition reserves the right to move amendments in the Senate pending the Senate Legal and Constitutional Affairs Committee’s recommendations which are due today. We do, in broad, support this bill.

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