Catryna Bilyk (Tasmania, Australian Labor Party) Share this | Hansard source

I rise tonight in support of the Crimes Amendment (Working With Children—Criminal History) Bill 2009. Our children are our most valuable asset, but they are also one of our most vulnerable. They are vulnerable simply because they do not have the life experience that adults have had the time to acquire. As adults, we must do everything possible to keep children safe. Children need to be protected at all times, and this bill is designed to help ensure that they are so. This bill protects our children by amending part VIIC of the Crimes Act 1914 to allow exceptions to the spent convictions scheme for convictions of persons who are seeking to work with children. The amendments will enable Commonwealth, state and territory screening agencies to have access to information regarding spent convictions so that it can be considered when assessing a person to determine if they are suitable to work with children. I firmly believe that everyone is responsible for the wellbeing of the children in their lives. We must love and nurture our own children and we must act to protect them all from others seeking to harm them.

Every day children across Australia come into contact with a variety of organisations—places such as schools, childcare centres, medical centres, churches, and sporting and recreation clubs. It is therefore an important strategy for creating and maintaining child-safe organisations to develop and implement policy and legislation that provide for the pre-employment screening of adults who work or volunteer in child related organisations.

Until now there has been no single national framework setting out the requirements for obtaining working with children checks or police checks. Each state and territory has their own procedures, and it is necessary to fulfil the requirements in the jurisdiction in which the person is working. There are two types of screening programs operating in Australia. Some states—New South Wales and South Australia—have employer-driven systems that make it mandatory for employers in relevant fields to carry out background checks on prospective employees or volunteers. These systems provide point-in-time background checks and individuals must undergo screening each time they enter into a child related position.

The other type of screening program in operation offers certification to engage in child related work to individuals in Queensland, Victoria, Western Australia and the Northern Territory. These certifications are valid for a specific period of time—for example, three years if you are in Western Australia—and provide for ongoing monitoring of a person’s suitability for child related work. This means that, if a relevant criminal offence is committed during the validity of the check or if the individual is subject to relevant work related disciplinary procedures, the administering authority may inform employers of the offence and altar or withdraw an individual’s entitlement to work with children. Individuals can also carry their certification between positions and do not have to undergo repeated screening while their working with children check is valid.

In addition to child related employment legislation, where it exists, all states and territories have legislation that requires people who wish to register in certain occupations—for example, teachers, doctors or childcare workers—to be screened for criminal offences. This means that even in jurisdictions where child related employment legislation does not exist there are still requirements for adults working in certain occupations to undergo screening—for example, the Victorian Institute of Teaching Act 2001, the Medical Practitioners Registration Act 2001 in Queensland or the Tasmanian Child Care Act 2001.

Due to the screening already being part of the registration requirements, certain persons are exempt from working with children check requirements. In Victoria, persons registered under the Victorian Institute of Teaching Act 2001 are exempt from the working with children check. Organisations may also have developed their own policies that require employees and volunteers to undergo criminal record checks. These policies may exist as a substitute for relevant legislation in a jurisdiction where there is no legislation, or in addition to a relevant act. State and territory police provide criminal history checks to individuals and organisations wishing to obtain police checks for employment, voluntary work and occupation related licensing or registration purposes.

So what is the difference between a police check and a working with children check? Police checks identify and release relevant criminal history information relating to convictions, findings of guilt or pending court proceedings. However, due to w2 conviction non-disclosure legislation and information release policies, there are limitations on the information a police check can provide. As I have mentioned, the Spent Conviction Scheme stipulates that prior convictions are not to be disclosed where 10 years have passed from the date of the conviction. As the object of a working with children check is to make an assessment of the level of risk an individual poses to children’s safety, working with children checks are more extensive and also more targeted than police checks.

Across the five jurisdictions that currently carry out working with children checks—that is, New South Wales, the Northern Territory, Queensland, Victoria and Western Australia—there are differences in what information is considered and what sources of information are drawn upon. In all jurisdictions that have child related employment pre-screening legislation, it is mandatory for certain individuals engaged in occupations such as educational child care, child protection, child and family welfare, health, entertainment and recreation, and religious instruction to meet screening requirements. But, for example, in my home state of Tasmania at present there is no legislation that identifies broad categories of child related work and mandates for employees or volunteers to undergo a working with children check. However, the department of education administers a safety screening program for employers, individuals and students engaged in areas linked to the childcare industry. It is a requirement of the department of education that safety screening is undertaken for the following: childcare staff; home based child carers, including carers registered through a family day care scheme; volunteers and students, including those under 18 years of age, who are seeking employment or placement at a licensed or registered childcare service; regular visitors to licensed or registered childcare services; licensed applicants; and members of the management body. Additionally, government and non-government organisations may have developed their own requirements and procedures for screening.

So the importance of this bill is that it is seeking to amend the Spent Conviction Scheme. We are not doing it to make life difficult for people with convictions. However, as children are so vulnerable they need us to offer them extra protection. That is why exemptions to the Spent Conviction Scheme should apply. It is not about making people with convictions unable to work with children. They, like everyone else, should be allowed to work with children but only if their convictions are not relevant to children or if they have proved that they have completely mended their ways. A conviction is considered spent after five years for offences committed as a juvenile and 10 years for offences committed as an adult. Only convictions that were not punished with imprisonment or where the term of imprisonment was less than 30 months can be classed as spent. This is to ensure that people who commit serious crimes are ineligible.

The Standing Committee of Attorneys-General has been considering implementing a national scheme for spent convictions. The draft legislation has taken into account the fact that in some cases the public interest in a safe environment outweighs the individual’s right to move on with their life. Currently the law in relation to spent convictions varies from jurisdiction to jurisdiction, and it would obviously be much better to have a national approach. This would help prevent people gaining work with children in one jurisdiction when they would be unable to in another jurisdiction because of their criminal history.

This bill will allow interjurisdictional exchange of criminal history, including pardons, quashed convictions and spent convictions. The bill also takes into account that sometimes convictions are not pursued in order to protect a child from having to undergo the trauma of a court case. This bill would allow information regarding the alleged perpetrator to be used in these circumstances. This information can only be used for the purpose of screening people for work that specifically relates to children. This bill also offers protection by ensuring that criminal history is only disclosed to relevant people and is used for the sole purpose of determining if someone is suitable for work that involves caring for children. Under this proposal it will be a requirement for a review to be carried out. This review must commence no later than 30 June 2011 and must be completed within three months. Obviously, the review is necessary to ensure that the provisions are operating effectively. The review will also make sure that information is being used for appropriate purposes and by people who need to use that information.

Children are the wonder of our lives. It does not matter whether they are our own children or the children who live next door, or whether we are involved with them through family or a community group, each and every child is important and needs to be protected. Each adult has the responsibility to ensure that the children they interact with are protected from harm. This bill is offering yet another way in which we can protect children. It allows the sharing of information regarding criminal history to ensure that people who are a risk to children are not employed in jobs or voluntary work that provides them with an opportunity to hurt a child. It balances the need to protect children with the right of people to move on from past wrongs and to rebuild their lives, and it has safeguards in place to ensure that information is not misused. Most importantly of all, it is extra protection for our children. I commend the bill to the Senate.