George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Hansard source

The coalition supports the Crimes Amendment (Working With Children—Criminal History) Bill 2009. The safeguarding of children from sexual, physical or other abuse should be a key priority for all Australian governments. The COAG agreement, which is 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 records checks in recent years. Between 2004-05 and 2007-08 requests to CrimTrac, the national criminal records agency, increased by 73 per cent from 1.5 million to 2.6 million. Requests to the Australian Federal Police increased by 57 per cent from 350,000 to 550,000 over the same period. I note that other countries have experienced significant increases as well. For example, in England and Wales in the period between 2002-03 and 2008-09, the number of such requests for records checks nearly tripled from 1.4 million to 3.85 million.

The proposed 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. The bill contains amendments to part VIIC of the Crimes Act 1914. Part VIIC governs the disclosure and nondisclosure of pardoned, 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 and 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 which relate to the disclosure of spent convictions information in relation to the care, instruction or supervision of a minor and replace the existing exclusions with new exclusions which allow the disclosure of information about a person’s spent, quashed or pardoned convictions in certain circumstances.

The amendments also 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 the COAG agreement and include compliance with applicable privacy, human rights and records management legislation, natural justice principles and implementation of risk assessment frameworks. As well 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.

As noted in the explanatory memorandum, under the Commonwealth Spent Conviction 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 if 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 appropriate safeguards and conditions. The bill provides that the criminal history information 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 integrity or employment suitability check. A potential employee’s criminal history information will not be given to their employer. The employer only receives a ‘yes’ or a ‘no’ from the screening unit. A person can appeal the decision of a screening unit and is able to view the reason they received a ‘no’ decision. A 12-month trial of the new sharing arrangements began in November 2009 between agencies that already had screening units. Ongoing monitoring, training and supervision of employees who have access to children is critical to minimising the incidence of child sexual assault. It is essential to achieve the best possible protection measures so that there is a comprehensive approach that combines both effective screening and safe government and organisational practices and policies.

The bill was considered by the Senate Legal and Constitutional Affairs Legislation Committee, which recommended that it be reviewed after three years of operation. I note that the government has accepted that recommendation and has in fact gone further; the legislation will be reviewed twice, at two-yearly intervals. That is an appropriate course to take. The coalition supports the bill in its amended form and I commend it to the Senate.