Scott Ludlam (WA, Australian Greens) Share this | Hansard source

I will do likewise and indicate that the Australian Greens will be supporting the government’s amendment, limited as it is.

Question agreed to.

I will speak briefly on some context to two sets of amendments that I will move by leave as a group. As I was saying in my second reading contribution, a number of submissions, when we finally did get around to having a hearing, appreciated the gravity of the legal principles that were at stake in disclosing spent, pardoned or quashed convictions—and it is to this that our amendments go.

Under the bill incentives and rewards for rehabilitation are removed. There is quite an important principle here that we are trading away in order to achieve what I would put, and what several witnesses before the committee hearing suggested, are actually highly ambiguous policy gains. The incentives and the rewards for rehabilitation are removed and a person’s name is effectively marked for life, even if they were wrongly convicted or were exonerated. In this regard the Queensland Law Society noted that the bill provides another example:

… of a rapidly expanding criminal history checking regime that encroaches upon the spent convictions scheme without justification borne from relevant modern research.

This goes to my comments earlier that we have not seen anything cited recently or in an Australian context to really justify why we are encroaching so far. That submission urged the government to commission further research and said that the issue required further public discussion and reasoned parliamentary debate. I suggest we are having the latter now, but we certainly have not seen any of the research that was called for, nor indeed public discussion. The Law Council was also critical that the safeguards regime offers little protection in the circumstances. Other submissions described the cumbersome nature of the current screening processes—they are not linked nationally—and welcomed efforts to streamline processes and strengthen measures to protect children. So the underlying principles here are supported but not the actual measures that we are discussing now.

Some child advocacy experts expressed concern about the lack of definition of what ‘working with children’ even means, which is the entire basis of the bill. It is a term for which I think there is a need for a harmonised definition, if state and territory jurisdictions are cooperating and are intending to be brought into line here.

The Greens supported the committee’s recommendation for a review of the legislation after three years of operation, and we believe that the bill should be amended to link the disclosure of the offences where the offences are relevant to the situation—which is in an amendment I will be moving shortly—and that consequential amendments should be made to the Human Rights and Equal Opportunity Act to make discrimination on the grounds of criminal record unlawful, in order to balance the removal of protections that have been guaranteed for 30 years or so through the Crimes Act. So I seek leave to move amendments (1) to (5) together.

Leave granted.

I thank the Senate. I move:

(1)    Schedule 1, item 6, page 3 (line 22), after “information”, insert “that relates to sexual offences or offence against children”

(2)    Schedule 1, item 6, page 3 (after line 26), before paragraph 85ZZGB(a), insert:

           (aa)    the information relates to a designated offence; and

(3)    Schedule 1, item 6, page 4 (after line 10), before paragraph 85ZZGC(a), insert:

           (aa)    the information relates to a designated offence; and

(4)    Schedule 1, item 6, page 4 (after line 22), before paragraph 85ZZGD(a), insert:

           (aa)    the information relates to a designated offence; and

(5)    Schedule 1, item 6, page 5 (after line 10), after section 85ZZGE, insert:

        (1)    Information may be:

             (a)    disclosed to a person or body under section 85ZZGB; or

             (b)    taken into account by a person or body under section 85ZZGC; or

             (c)    disclosed by a person or body under section 85ZZGD;

only for the limited purpose of assessing the risk that the person to whom the information relates may pose in working with children.

        (2)    Nothing in this Subdivision authorises the disclosure or use of information for the purpose of a general probity or employment suitability check.

Amendments (1) to (5) implement a sensible suggestion of the Privacy Commissioner—someone the government has often been ignoring of late, which is quite concerning, given the degree of expertise and insight possessed by this office in an area that Australians are quite concerned about. We just heard in hearings upstairs that matters of privacy are in fact a human right. In many cases—with this bill being no less of an example—these rights are actually being trespassed on quite overtly.

There was an extensive study into the Privacy Act conducted by the Australian Law Reform Commission. The ALRC is another entity whose advice is not being heeded by government on many important matters, including this. The Privacy Commissioner, along with the Queensland Law Society, contended that it is quite important to ensure that any information on quashed, spent or pardoned convictions is:

… relevant to the purpose it will be used for … given the sensitivity attaching to this information and the potential for an individual to be stigmatised, embarrassed or discriminated against if it is mishandled.

The suggestion there is that we could introduce a number of safeguards such that screening units do not use irrelevant criminal history information and that such information only be used for a relevant purpose.

The amendments that we are moving here are consequent to those proposals. They link the disclosure of the convictions that were until now treated as though they did not occur only when the conviction signals danger and propensity for concerning behaviours. The obvious ones that would go to this would be sexual offences, offences against children or designated offences so that a causal link can be established between the offence and the type of employment applied for. In the absence of the kind of research that many submitters called for in the course of the committee’s deliberations into this bill, I think that is the bare minimum that the government could agree with to effectively narrow the range of offences that can be disclosed in the course of these investigations. I commend Greens amendments (1) to (5) to the Senate.