Chris Evans (WA, Australian Labor Party, Leader of the Government in the Senate) Share this | Hansard source

I appreciate the manner in which Senator Ludlam has proposed these amendments and the constructive way in which he is seeking to improve the bill, in his view, but the government cannot support this set of amendments. In our view, limiting disclosure to relevant offences would be inconsistent with the terms of the COAG agreement, which provides for full disclosure of criminal history information for people who work with, or seek to work with, children. It is appropriate to consider a person’s full criminal history in assessing whether he or she poses a risk to children if employed in child related work. A prior criminal record may be relevant in assessing a person’s suitability to work with children, even if it is not a violent or sexual offence.

The Australian Institute of Criminology has noted that incarcerated sexual offenders are more likely to have previous convictions for non-sexual offences than for sexual offences. For example, convictions for a range of offences where the victim is a child may be relevant and offences such as drug trafficking and menacing or harassing another person may also be relevant. Restricting the exchange of criminal history information to certain categories of offences may create a risk that certain relevant information may not be disclosed to a screening unit.

Non-conviction information is also relevant to assessing the suitability of a person to work with children. Law enforcement agencies have indicated that charges relating to offences against children are often withdrawn because a decision is made to protect the child victim from the stress and trauma of giving evidence, cross-examination and waiting for committal and trial. A person’s convictions may also be quashed for reasons that do not negate the credibility of evidence on which the conviction was based.

Screening units are required, obviously, to have risk-assessment frameworks and appropriately skilled staff. This will ensure that, when a screening unit receives a person’s complete criminal history information, it undertakes a rigorous process to determine the relevance of a particular conviction to a person’s suitability to work with children. All current jurisdictional screening units have appeals processes in place for decisions made in relation to working-with-children checks. Each jurisdictional or authorised screening unit is also required to take a number of steps before a decision is made to issue a negative notice for an application. These include disclosure of the criminal history information to the individual, allowing the individual a reasonable opportunity to be heard and consideration of the individual’s response prior to finalisation of the screening decision.

Particularly in relation to Greens amendment (5), we believe that it is unnecessary and confusing because the bill already makes clear the very limited circumstances in which information can be disclosed and taken into account. It can only be taken into account by a prescribed person or body if that person or body is permitted or required under a prescribed Commonwealth, state or territory law to obtain and deal with information about persons who work with, or seek to work with, children and if the disclosure is for the purposes of the person or body obtaining and dealing with such information in accordance with the prescribed law. Prescribed Commonwealth, state and territory laws will be limited to legislation that establishes criminal history checking regimes for people who work with children.

The government cannot support the Greens proposed amendments. We think they would weaken the regime put in place to try to protect children. I understand that there are concerns about the rights, if you like, of those who might be assessed. We think that this bill provides the appropriate protections through the screening units and the accountability mechanisms, and we think it would not be appropriate to accept the amendments moved by the Greens.