George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to 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.

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

The Crimes Amendment (Working With Children—Criminal History) Bill 2009 before us provides for Commonwealth pardoned, spent or quashed convictions to be disclosed in criminal history information provided by CrimTrac or by the AFP to employers assessing a prospective employee’s suitability through a working with children check. The Australian Greens acknowledge the epidemic of sexual violence against women and children across Australia. The statistics in this country regarding violence against children and women are at horrific levels. The Greens also believe that it is every child’s right to experience the conditions for optimal health, growth and development and protection from violence and abuse.

The work of my colleague Senator Hanson-Young on child care—in particular in driving an inquiry into childcare services in this country and in calling for genuine commitments from the government to safe and affordable child care and adequate resources to provide decent pay and conditions for carers—attests to the value and the effort that the Greens believe our children deserve. Senator Hanson-Young has also called for the appointment of a commissioner for children and young people, with the powers to ensure recognition of their needs, their views and their rights. Much of the work of the Greens is about protecting the welfare and the safety of future generations, and our pillar of non-violence is an absolute commitment for children to be free of violence, safe from sexual violence and safe from molestation.

These views inform my belief that law reform in the area of child protection is too important to compromise or to rush. The inquiry into this bill was carried out very rapidly. The government intended to proceed with the bill without a hearing. It was very useful, however, to have a committee hearing to clarify a number of core issues that had not been communicated clearly in the explanatory memorandum or in the bill itself. As the opposition noted in their additional comments in the committee’s report, the EM for the bill was inadequate and potentially quite misleading. It was particularly useful from my point of view to have the hearing because the views expressed in the submissions were extremely divergent. There is no way the government could say that all the submissions we received on this issue were aligned, because they simply were not. Experts in child protection and legal experts on the significance of the proposed amendments were diametrically opposed on whether the approach set out in this bill is the best way to protect children. In closely examining the bill in question, it remains quite unclear how disclosing all Commonwealth spent, quashed or pardoned convictions can in this instance better protect children’s human rights.

The Bills Digest and various submissions strongly made the case that very little relevant evidence had been provided by the government as to how spent, quashed or pardoned convictions could signify that a person had a propensity to mistreat minors. That really goes to the core of the intention of this bill. Many of the submitters called for more public discussion and further studies to gather evidence on this issue, ‘as the only source of evidence relies on dated studies (only one of which was Australian)’. The government has made a lot of promoting evidence based policy and I would have thought that there was probably no area more important than child protection in which to base public policy on the evidence—certainly on recent evidence from an Australian context. Some submissions provided studies that contradicted the government’s proposition and studies that contended that the most serious and violent criminals did not have previous convictions for violence and did not repeat their offending. So the entire underpinnings for this bill remain ambiguous, despite the valuable work of the committee and the evidence that it received.

It should also be noted that not all jurisdictions are participating in the proposed changes before us. Along with the governments of the ACT and Victoria, the Greens specifically do not support the sharing of information relating to non-convictions, as it would be inconsistent with the principle of innocent until proven guilty and inconsistent with the human rights which Victorian and ACT citizens enjoy through their charters of human rights. I will speak more to the specific purpose and nature of our amendments when we reach the committee stage.

Catryna Bilyk (Tasmania, Australian Labor Party) Share this | Link to 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.

Guy Barnett (Tasmania, Liberal Party, Chairman of the Scrutiny of Government Waste Committee) Share this | Link to this | Hansard source

I stand to support the Crimes Amendment (Working With Children—Criminal History) Bill 2009 and also to put on record my thanks to the Legal and Constitutional Affairs Legislation Committee secretariat for their help and assistance in putting together the report that was tabled in the Senate in November 2009 in response to this particular bill. We received 17 submissions. We had a hearing in Melbourne in early November and we had a number of organisations and individuals who made submissions and gave evidence at our public hearing. As this was one of the last reports of the secretary, Peter Hallahan, I want to put on the record my sincere thanks to him. I have done that before and I say it again. He has now retired and I hope he is thoroughly enjoying himself and spending time with his family. He has done an excellent job for and on behalf of the secretariat together with the support of Margaret Cahill and Cassimah Mackay.

Having said that, the report did recommend a review after three years. I am pleased the government has listened and read the report and will have a review within two years and then another review two years after that. I think that is important. The Liberal senators, Mary Jo Fisher and I, made some additional comments because we agree 100 per cent with the imperative of minimising the risk of sexual, physical and emotional harm to children by stringent screening of people who are seeking to work with them, but we wanted to highlight that a number of significant and respected organisations, including the Law Council of Australia, held reservations about a number of aspects of the bill. Those reservations related to whether sufficient justification has been provided for overriding important legal principles associated with quashed and pardoned convictions. That really means giving those people who are so affected, whether they have quashed or pardoned convictions, the opportunity to get back into the community and back into life again.

The other areas of concern that we raised were the lack of a definition of ‘working with children’ and the adequacy of privacy safeguards. I will not say any more; it is set out in the report. We have made some recommendations there with respect to the importance of a consistent definition of ‘working with children’ and of ensuring the adequacy of privacy safeguards. On the basis that there is a review within two years and the importance of making children the top priority and ensuring their potential is achieved—they are properly cared for, looked after and protected in all ways, shapes and forms; physically, mentally and in every other respect—I support the bill and again thank the secretariat for their support in pulling the report together. I commend the bill.

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

I notice that Senator Fisher was on the list of speakers but is not here. I will sum up for the government and she can speak in the committee stage if she wants to make a contribution. I also understand that Senator Xenophon was interested in contributing, but he is paired at the moment. So I will sum up unless someone urgently seeks the call. They can make a contribution in the committee stage. I understand that, in addition to the government amendment, there are some Greens amendments.

First of all, I thank the senators for their contributions to the debate. Protecting children from any form of abuse is a matter of utmost importance for the government and for the parliament as a whole. The Crimes Amendment (Working With Children—Criminal History) Bill 2009 will enhance the mechanisms in place to ensure that people who work with children are properly vetted. It will enable organisations conducting working with children checks to consider the full criminal history of a person. The bill includes stringent safeguards to ensure that the information is dealt with appropriately and to limit any potential misuse of the information. As I indicated, I will be moving a government amendment that inserts the provision providing for a further review of the legislation in 2013 in addition to the review in 2011. I think that is largely uncontroversial and we think it is an improvement. We must all take steps to protect our children and I think this bill will enhance our overall strategy for managing risks to the safety and wellbeing of children. I thank senators for their contributions and we will obviously look to debate the amendments in the committee stages.

Question agreed to.

Bill read a second time.