House debates
Thursday, 29 October 2009
Crimes Amendment (Working with Children — Criminal History) Bill 2009
Second Reading
Debate resumed from 20 August, on motion by Mr Brendan O’Connor:
That this bill be now read a second time.
11:47 am
Sussan Ley (Farrer, Liberal Party, Shadow Minister for Justice and Customs) Share this | Link to 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.
11:56 am
Graham Perrett (Moreton, Australian Labor Party) Share this | Link to this | Hansard source
Our children are coagulated hope. Our children are our hope coagulated. They are the future distilled. They are all our tomorrows right here, right now. I say this as somebody who has two young children but for 39 long years of my life I had no children. For a long while my lifelong partner and I began to contemplate a life without children, that is not to say we were contemplating a life without hope—and I do not wish for a minute to offend the many Australian couples and singles who live without offspring. In our circumstances it merely would have been a reprioritising of aspirations and dreams of our future together. It would have been Paris rather than the playground; London rather than Lego; more riding rather than the Wiggles. I am not arguing about those options or whether they were better or worse—although I do think of Paris a little bit—but they are just choices that we make when we have children. Just different options, I guess.
I have many close friends who will be travelling down life’s road without any little voices in the back seat asking, ‘Are we there yet? Are we there yet? Are we there yet?’ Sometimes fate, or God, or time, or geography, or our genes just happen to roll the dice that way. Sometimes people recklessly roll the dice that way, and sometimes people carefully and deliberately roll the dice that way. Having teetered between all of these roles I know that casual words—be they concerned or careless, such as, ‘Do you have any kids?’—can sometimes cut like a knife.
I have friends who have dropped my wife and I as a couple basically because we had children, maybe because of their own poignant circumstances, maybe because they voted Liberal—who knows?—and I will certainly never ask. As any parent knows, your kids are like a friendship recruiting agency. ‘Your kid likes Thomas the Tank Engine? Hey, mine too. Let’s be friends.’ ‘Your kids like yelling loudly and chucking tantrums at public events whenever his father is just about to speak? Hey, mine too. Let’s be friends.’
I make these introductory comments about children because I want to clearly place on the record what I believe is children’s crucial place in the centre of a strong society. Unfortunately, not all Australians have the same view of children. In fact, if all of my fellow Australians had exactly the same view and acted the same way towards children as I do, then my wife would be unemployed. I say that, and by way of explanation I refer to a press release from the Queensland Minister for Child Safety and Minister for Women, the Hon. Margaret Keech, on Thursday, 11 September 2008. The press release is headed: 20 Year Hero Honoured at Child Protection Week Awardsand this is about my wife.
After nearly 20 years on the front-line protecting Queensland’s abused and neglected children, Moorooka’s Leanne Scoines is being officially recognised as a community hero.
Child Safety Minister Margaret Keech today announced Ms Scoines has won the Child Protection Week Public Sector Award for her decades on the front-line and now at the after hours service centre.
I will not read the whole release, but it goes on to say:
Ms Scoines and her colleagues at the after hours centre assess risks to children, monitor families, arrange support for children and carers and ensure vulnerable children are protected—around the clock.
Armed with three university degrees, and working on her fourth, in law—
she has an exam next week, so good luck—
Ms Scoines sees her future in working with people who need her help.
And her husband is easily the best husband in Australia and does more than his fair share around the house. Actually, that was not in the release; I did add that last bit.
The reason I refer to that press release is that Lea has been a child protection worker for 20 years, and I have been with her for 18 of those 20 years. Therefore I have a little bit of understanding. She obviously has a lengthy understanding and the knowledge, skills, expertise and compassion, and through osmosis and observation I have only a little bit of understanding, but it has given me a bit of an understanding, I guess. I also have an understanding from my time as a union organiser in private schools, when I was working on the blue card discussions. For those people not from Queensland, the blue card is basically the Queensland equivalent of this legislation. I went through that same process, looking at the police records of teachers, when I was working for the Queensland Independent Education Union at the start of the decade.
On 29 November 2008 the Council of Australian Governments, COAG, endorsed recommendations for the interjurisdictional exchange of criminal history information for people working with children, including information about pardoned, quashed and spent convictions. So we have a bill before the House called theCrimes Amendment (Working With Children—Criminal History) Bill 2009. This would not include people who have been questioned and not charged or even necessarily those who were charged but whose charges were later dropped. However, I do point out that once a red flag is raised the information pertaining to whether somebody had been pardoned, had their conviction quashed or had spent convictions would be assessed and only acted on if it is relevant and deemed to be of risk.
After the November 2008 COAG meeting, the states and territories agreed to prepare, introduce and seek the passage of legislative amendments within nine months of the COAG agreement. Jurisdictions also agreed to remove any legislative or administrative barriers to formally supplying criminal history information, including information on spent, quashed and pardoned convictions, to other jurisdictions for the purpose of child related employment screening.
There are important privacy considerations and public good benefits that must be balanced, but it is obviously very important that we get the balance just right.
One safeguard included in the Bill is that the criminal history information received may only be used 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 probity or employment suitability check.
… … …
… a person or body will only be prescribed for the purpose of enabling them to receive conviction information if the person or body:
- is authorised by the government of the State or Territory in which it operates
- has a legislative basis for screening that prohibits further release or use of the information (except for legislated child protection functions in exceptional circumstances)
- complies with applicable privacy, human rights and records management legislation
- reflects principles of natural justice, and
- has risk assessment frameworks and appropriately skilled staff to assess risks to children’s safety.
The bill before the House also requires the Minister for Home Affairs to review these new provisions after an initial trial period.
These government initiatives might well dissuade a couple of creeps from seeking to work with children, and that is obviously a good thing, we would all agree. However, I could not in good faith talk about child abuse, child protection and hope without touching on a couple of home truths about the real dangers that face most children. It is a horrible truth that our children are most likely to be harmed by the people they know, not by the paedophiles on the front page of the newspapers. Unfortunately it will usually be by their parents or somebody in the parent role and in their home environment. That is the truth. Leaving aside the mob hysteria and the Dennis Fergusons of the world, that is the reality.
The rates of sexual abuse are actually lower than the rates of other forms of harm. What is more likely to occur is emotional abuse. Sadly it is often due to domestic violence. The next most likely form of abuse is neglect. More often than not, this neglect stems from parental drug abuse issues. People who have addiction problems tend to focus their resources on their habits rather than on their children. Anyone of my age who has seen the movie Trainspotting would have seen some of the horrors of that. The second last most likely form of abuse is physical abuse. Last of all is sexual abuse. The rates are relatively low—from memory, only about eight per cent.
It is with much sadness that I repeat the fact that the sexual abuse is most likely to come from somebody acting in the nurturing role, usually the parent. Our newspapers and A Current Affair and Today Tonight would have us believe that abuse only occurs at the hands of strangers and opportunistic paedophiles such as Dennis Ferguson. I am not criticising ‘stranger danger’ programs and safety houses and the like. They are good, important things—and the bill before the House to bring in federal child safety legislation is also a good thing. However, for most children the opportunities for a stranger to have access to them are actually quite limited. Most parents keep a reasonably close watch on their children. The harm is more likely to come from a trusted person who has regular access.
I know that grooming does occur. That might have been Dennis Ferguson’s modus operandi—I do not know if that is what he did, and that will be the last time I mention that guy’s name. I just wanted to say this because I do not want anybody who is listening to or reading this to build a false sense of security about our legislation or, in Queensland’s case, the blue card. I have got my blue card here. As teachers in Queensland, we did not initially have to have it, but I subsequently got one as a politician on the board of a local community group.
We need to remember that legislative nets like the legislation before the House can only catch those who have been convicted. People who have experienced abuse, especially sexual abuse, will not disclose this experience easily. They are not likely to disclose it at the time. There is still a lot of shame associated with this trauma, especially for young boys. Often it is disclosed later, when the victim is in their 30s or 40s. The legislation before the House would not catch those perpetrators, because obviously they have not been charged or convicted.
Paedophiles will target kids who are vulnerable. Unfortunately such people normally get into a position of trust and present as fantastic saints. It is only later that we find out that they are actually horrible sinners. We need to teach kids and parents to recognise the telltale signs of abuse. We need to train our children to protect themselves—from strangers, sure, but also from their parents or the people in the parenting role. We also need to fund protective behaviour courses for children. These are real steps that will help us protect our hope.
A blue card like this is not a shield. It is just another weapon in the armoury. But the best weapon of all is to keep our children close and love them to bits. To paraphrase the singer Paul Kelly, from a song that I listened to carefully when I was younger, before I had children: I know sometimes that I’ve been careless, sometimes I’ve lost my tenderness. I’ve been careless and I sometimes take bad care of them. I can do better. I dare say that every parent can do better. Every Australian can do a little bit better, and this legislation before the House helps too. I commend the bill to the House.
12:09 pm
Luke Simpkins (Cowan, Liberal Party) Share this | Link to this | Hansard source
I would like to echo the words of the member for Moreton. Often when we think of the threat to our children from paedophiles or those who would abuse them, we think of cliches like, ‘Watch out around public toilets in parks,’ and ‘Watch out for the car driving past,’ or the white van that we often hear so much about over in Perth when someone tries to grab children off the streets. But the reality is that our vigilance as parents must start at home, particularly with regard to members of the family and family friends, because it is often there that the greatest threat lies. So I certainly echo the words of the member for Moreton on that point.
I welcome the opportunity to make a contribution today on the Crimes Amendment (Working With Children—Criminal History) Bill 2009. I do see it as a reminder that we must always look for opportunities to strengthen the safeguards we have for the protection of children. The working with children checks and cards have been since their introduction a very important part of the safeguard regime. The proposed amendments in this bill would create an exception for convictions of persons who work or seek work with children so that those convictions can be and rightfully should be disclosed to and taken into account by the Commonwealth, state and territory screening agencies in determining whether a person is suitable to work with children.
There is nothing more important than the safety of our children and I share the view of many in our society that sexual abuse assaults against children are the worst of crimes. It just does not get any worse than where power and absolute control by an adult over children is used to undertake sexual assault. My view is that rehabilitation for such criminals is highly unlikely and that they should actually be retained in prisons. It is certainly the case that victims of these crimes will struggle to recover, mentally and socially; they are likely to have ongoing psychological issues and an inability to relate to others socially. They are less likely to succeed in education and in work. Also they are more likely to become involved in crime themselves. This is a reminder to us that we cannot afford to allow any children to be subjected to sexual crime because beyond the tragic lifelong damage that they will experience, the impact on society is also significant when you add up the cases across the nation. The point being that not a single case of child sexual abuse or assault is ever acceptable.
I would expect that all members of parliament are committed to fighting for the absolute elimination of these crimes and we must look to take every step that we can to achieve that goal. It is for that reason that I support this bill as it will amend the Crimes Act 1914 to allow exceptions to the provisions that prevent the disclosure of pardoned, quashed or spent convictions. In this bill pardoned and quashed convictions would be disclosed to persons or bodies in prescribed jurisdictions and could be used to determine whether an applicant would be able to be authorised to work with children. In the case of spent convictions exceptions which already exist would be expanded upon. The extract from the COAG communiqué from the meeting of 29 November last year regarding interjurisdictional exchange of criminal history information for people working with children read:
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.
While it is hoped by COAG that all states would agree Victoria unfortunately has chosen to be excluded from the operation of the exchange of criminal history information. It must be said that I find the Victorian approach disappointing but hardly surprising. I say that because Victoria has a charter of human rights. That document allows judges to overrule the decisions of elected representatives in many cases. This raises an interesting point given the Commonwealth government’s commitment to more jobs for lawyers and slower decision-making also known as a federal charter for human rights. As Senator Brandis has pointed out, the issues that Victoria needs elite lawyers and judges to decide are in fact those that should be decided by elected representatives.
If the Rudd government wants a charter of human rights then, unlike Victoria, it should have a referendum to ask the people. I make the point for Western Australians that, with regard to illegal immigrants, any move back by the coalition to strong border controls could be overruled by judges. Also, the popular WA mandatory sentencing laws for assaults on public officials would be a target for lawyers and judges under the charter of human rights. In fact, everyone who feels that the criminal courts in Australia rarely dispense justice should get used to the rights of criminals being paramount. These are matters worth thinking about as the push for this left-wing icon marches forward.
I return now to the matter of spent, pardoned and quashed convictions. In Western Australia, convictions are only spent by application to the court. South Australia has no spent convictions regime at all. Pardoned convictions can only be approved by a minister and convictions can be pardoned for technical reasons or for a lack of evidence. A quashed conviction can only be approved by a court. If a conviction is overturned on appeal, it is quashed. According to the Attorney-General’s Department, the reasoning behind this legislation is that, even if a conviction is pardoned or quashed, there is still reason to believe that the person concerned has an unreliable nature and may offend in the future—quite right.
Safeguards within the bill include a comprehensive regime for assessing people who work or who seek to work with children to 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—as it should be. One safeguard included in the bill is that the criminal history information received may only be used for the limited purpose of assessing the risks that a person may pose in working with children—which is quite necessary. 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 will be able to view the reason they received a ‘no’ decision. In November 2009, a 12-month trial of the new sharing arrangements will begin between agencies that already have screening units.
The facts are that the rights of Australian citizens have been and are still protected under existing laws and amendments passed by this House and the other place. What concerns me about a federal charter of human rights is that it might take away the most important obligation in this nation—that of the personal responsibility of elected representatives to pass laws that place controls on actions.
After somewhat of a digression, I would like to return to the core issue of the ‘working with children’ checks. I have longed believed that after a person’s criminal history check has been concluded, the ‘working with children’ card indicates that the person has not been convicted of certain crimes. That is good. However, the question must be asked: how do we better protect our children from those who have an intention to take advantage of them? I therefore bring a proposal to the parliament which represents my own personal viewpoint. I propose that every person seeking a ‘working with children’ card should be required to authorise their internet service provider to provide to the department or the screening authority a certificate stating whether or not that person had ever visited a pornographic website. I believe that such information would seriously undermine confidence in such a person’s reliability in working with children and, if not, at least it should be considered.
It is my view that the amendments outlined in this bill will provide additional benefits in the fight to better protect our children. However, there will always be more that can be done—and I have just provided such a proposal. It is always a matter of conjecture as to whether there are more paedophiles now than in the past. I do not believe so. But I do believe that if these warped predators are given an opportunity by weak systems then they will attempt to abuse children. The internet is one such weak system where predators can indulge with some ease their darker side. The Australian Federal Police and other agencies have been doing great work in that area. However, more can be done via such a suggestion as mine. A lack of communication between authorities across this country is also a weakness that could be exploited. I therefore welcome the changes brought forward in this legislation.
Finally, as adults and particularly with our extra responsibilities in this place, we have a clear obligation to make sure that we do everything in our power to protect children. I say that not just for those in this place but for every adult in this country. We all have a clear obligation to protect children and to report suspicions or concerns to the appropriate authority. We should never think twice about fulfilling that obligation, and I think more people in this country could do a whole lot better in that regard.
12:19 pm
Craig Thomson (Dobell, Australian Labor Party) Share this | Link to this | Hansard source
I rise to speak on the Crimes Amendment (Working With Children—Criminal History) Bill 2009. I do not think there is a member in this House who would disagree with the notion that the safety of our children is of paramount concern to the national community. The object of these amendments is to help protect children from sexual, physical and emotional harm, by permitting criminal history information to be disclosed and taken into account in assessing the suitability of persons to work with children. According to the Australian Institute of Criminology, unofficial estimates are that approximately one in four girls and between one in seven and one in 12 boys are victims of some form of sexual abuse alone. The effects of abuse and neglect on children are tragic. The Australian Institute of Health and Welfare reports that there are established links between abuse or neglect as a child and poor social, behavioural and health outcomes, as well as a higher likelihood of criminal offending and mental health issues. I do not think we need an institute or a study to tell us this; it is almost self-evident. Most Australians would already understand and acknowledge these links.
This bill will amend the Crimes Act 1914 to enable the disclosure and use of criminal history information about a person’s pardoned, quashed and spent convictions, but only for the purpose of child related employment screening. The bill implements the COAG agreement to facilitate the interjurisdictional exchange of criminal history information for people working with children. At its meeting on 29 November 2008 the Council of Australian Governments endorsed recommendations for the interjurisdictional exchange of criminal history information for people working with children, including pardoned, quashed and spent convictions. Jurisdictions agreed to prepare, introduce and seek passage of legislative amendments within nine months of the COAG agreement. Jurisdictions also agreed to remove any legislative or administrative barriers to formally supplying criminal history information, including information on spent convictions and quashed and pardoned convictions, to other jurisdictions for the purpose of child related employment screening.
At the Commonwealth level, the legislative barriers to the exchange of criminal history information under the COAG implementation plan are contained in part VIIC of the Crimes Act 1914. This bill provides for new exclusions which allow the disclosure of information about a person’s spent, quashed and pardoned convictions to or by a prescribed person or body permitted or required by or under a prescribed law to obtain or deal with information about a person who works, or seeks to work, with children and for the purpose of obtaining or dealing with such information in accordance with prescribed law. At the moment there is national inconsistency with regard to the screening of those who seek to work with children. The differences in laws and approach over different jurisdictions are sparse.
In the ACT, there is no formal act or screening program. However, individual employees may require police checks at their discretion. In August 2009 the ACT government released a community discussion paper and a proposed system of background checking of people working with vulnerable people, including children. In New South Wales, the Commission for Children and Young People Act 1988 underpins the New South Wales working with children check. This is an employer-driven point in time system entailing background checks of employees and the permanent exclusion of prohibited persons from child related occupations. In the Northern Territory, the Care and Protection of Children Act 2007 requires individuals to apply for a working with children check, known as a clearance notice. A clearance notice is valid for two years. This applies to employers and volunteers in child related employment settings.
In Queensland, the Commission for Children and Young People and Child Guardian Act 2000 requires individuals to apply for a working with children check, known as a blue card. This is valid for two years, and blue cards entitle individuals to engage in child related occupations and volunteering. In South Australia, the Children’s Protection Act 1993 underpins an employer-driven point in time system requiring employers and responsible authorities to obtain criminal history checks for those engaged in child related occupations or volunteering. In Tasmania, there is no formal act or screening program. However, individual employers may require police checks at their discretion. In 2005 the Commissioner for Children Tasmania released a consultation paper discussing proposals for the government to introduce screening procedures for Tasmanian organisations which want to employ people to work with children. In Victoria, the Working With Children Act 2005 requires individuals to apply for a working with children check. This is valid for five years. The check entitles individuals to engage in child related occupations and volunteering. Finally, in Western Australia, the Working With Children (Criminal Record Checking) Act 2004 requires individuals to apply for a working with children check. This is valid for three years. Again, the check entitles individuals to engage in child related occupations and volunteering.
One safeguard included in this bill is that the criminal history information received may only be used for the limited purposes 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 probity or employment suitability check. Another important safeguard under the COAG agreement is that certain participation requirements must be met before a person or body can receive the information. In accordance with the COAG agreement, a person or body will only be prescribed for the purpose of enabling them to receive conviction information if the person or body: is authorised by the government of the state or territory in which it operates; has a legislative basis for screening that prohibits further release or use of the information, except for legislated child protection functions in exceptional circumstances; complies with applicable privacy, human rights and records management legislation; reflects principles of natural justice; and has risk assessment frameworks and appropriately skilled staff to assess risks to children’s safety. To reinforce the importance of these safeguards, before a person or body in a state or territory can be prescribed in regulations to allow them to obtain and deal with the Commonwealth criminal history information, the Minister for Home Affairs must first be satisfied they meet all of these safeguards in their own jurisdiction. The bill also requires 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 review is to commence not later than 30 June 2011 and must be completed within three months.
In the second reading speech on this bill, the Minister for Home Affairs, the Hon Brendan O’Connor, noted two main reasons for COAG’s agreement on a framework that allowed for consideration of a person’s full criminal history, including non-conviction information—that is, evidence that incarcerated sexual offenders are more likely to have previous convictions for nonsexual offences than for sexual offences and indications from law-enforcement agencies that charges relating to offences against children are often withdrawn, as a decision is made to protect the child victim from the stress and trauma of giving evidence, cross-examination and simply waiting for committal and trial.
There is broad acceptance of the necessity for some form of working with children checking and for ensuring the safety of children. It is appropriate that we are debating this during this sitting, when the plight of the forgotten Australians is very much a topic of the national conversation. The Prime Minister will give a national apology next week to recognise the ongoing hurt suffered by Australians held in care as children. As Minister Jenny Macklin said in parliament:
For the most part, these were cold, loveless, authoritarian places, with no time at all for the exuberance and innocence of childhood; no time for the love or laughter and warmth of family life; no time to play, to eat healthy food or to get a decent education.
Around half a million Australians are believed to be in the group known as the forgotten Australians. Many of these children were subject to emotional, physical and sexual abuse at the hands of those who had the responsibility to care for them. It makes you wonder whether, if governments of the past had been more stringent in their hiring practices and less cold and more humane in nature, this apology from the Prime Minister would have been be necessary. Today, many of the forgotten Australians continue to struggle as a result of their experiences, grappling with mental illness, homelessness and substance abuse.
I have spoken in this parliament about my personal experience as an adopted child in the sixties and seventies. Similarly, I have heard in this place the experiences as an adoptee of the member for Forde and the experiences as a foster child of the member for Swan. I can speak only for myself as to how fortunate I was to have two very loving adoptive parents, who continue to support me, but hundreds of thousands of children in similar circumstances were not as lucky. I was part of a loving family environment.
An inquiry by the Senate Community Affairs References Committee began in 2004 and allowed many of those affected by the institutional care system of times past to pour out their stories of immense pain and hurt. This committee received over 440 public submissions and 174 confidential submissions. The first recommendation from that report was:
That the Commonwealth Government issue a formal statement acknowledging, on behalf of the nation, the hurt and distress suffered by many children in institutional care, particularly the children who were victims of abuse and assault; and apologising for the harm caused to these children.
Thankfully, the Rudd government is acknowledging the suffering of the forgotten Australians. An apology will at least acknowledge the hurt of these once-innocent children and make the forgotten Australians forgotten no more.
In closing, I wish again to endorse the spirit of this bill. There is a role for government to play to help protect children from sexual, physical and emotional harm. Criminal history information should and must be disclosed and taken into account in assessing the suitability of persons working with children. I commend this bill to the House.