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

I table a supplementary explanatory memorandum relating to the government’s amendment to be moved to this bill. The memorandum was circulated in the chamber on 25 November 2009. I move the government amendment:

(1)    Schedule 1, item 6, page 5 (line 31) to page 6 (line 7), omit section 85ZZGG, substitute:

        (1)    The Minister must cause 2 reviews of the operation of this Subdivision to be conducted.

        (2)    The first review must:

             (a)    start not later than 30 June 2011; and

             (b)    be completed within 3 months.

        (3)    The 2nd review must:

             (a)    start not later than 30 June 2013; and

             (b)    be completed within 3 months.

        (4)    The Minister must cause a written report about each review to be prepared.

        (5)    The Minister must cause a copy of each report to be laid before each House of the Parliament within 15 sitting days of that House after the day on which the Minister receives the report.

I indicate, as I said in my summing up speech, that this amendment is to quite simply add an additional provision providing for further review of the legislation commencing no later than 30 June 2013. It implements a recommendation of the Senate Standing Committee on Legal and Constitutional Affairs in relation to the bill. I think it was the only recommendation arising out of the committee inquiry. The review is in addition to a current provision which would provide for a review to commence no later than 30 June 2011. So this amendment will ensure that the operation of the provision is subject to comprehensive review and will allow evidence about the legislation’s operation to be fully assessed. As I said, we are picking up the recommendation of the Senate Standing Committee on Legal and Constitutional Affairs providing for a second review. I think it is uncontroversial and I urge the Senate to support the amendment. We will speak to the Greens’ amendments when they move theirs.

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

I indicate that the opposition will be supporting the government’s amendment.

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

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

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

For reasons somewhat similar to those that have been outlined by Senator Evans on behalf of the government, the opposition does not feel able to support the Greens amendments. If I can detain the chamber for a moment, it should always be remembered, when dealing with legislation of this kind, that the spent conviction regime is itself an exception to the general principle that a conviction, once recorded, remains a matter of public record. My friend Senator Bernardi was observing to me just before that, in his home state of South Australia, there is in fact no such spent conviction regime. A spent conviction regime already creates, if you like, an indulgence or a concession to individuals who have committed offences. But society takes the view that, after a period of years has elapsed and if the offence is lower down the scale, that public record should be expunged.

What this legislation seeks to do is create an exception to that exception—in other words, to allow the position to revert to the way it would have been had the exception not been created in the first place to a particular class of case, and that class of case is where, because of the appropriately heightened sensitivity that society has in relation to sexual offences against children, it is appropriate that a person who might otherwise be subject to the spent offences regime should not, in the limited circumstances ordained by this bill, attract that indulgence. For example, if such a person were to apply to work in and around children, it is appropriate that an employer should be able to apply to a monitor and receive a check on that person. As I said in my contribution on the second reading, only a yes/no answer comes back as to whether there has been a relevant conviction recorded. That information is in itself challengeable by the person in relation to whom the information is sought.

The reason the opposition do not feel able to support the Greens amendments is that we think they unbalance the various balances that have been built into this legislation. Of the various interests that need to be protected, the legitimate interest of a person who is ordinarily subject to the spent offences regime in the protection of their privacy, and being able to take advantage of legislation which has been passed for their benefit so that they can get on with their lives years after the offence has been recorded, is one social value that needs to be respected. On the other hand, the interests of children who might potentially be exposed to a greater level of risk than society regards as acceptable by being exposed to a person whose past conduct might give rise to an apprehension of such risk are, of course, in the opposition’s view—I think we share this view with the government—a greater value. And then, apart from the interests of the children themselves, there is society’s overall concern to ensure that there is a suitable protective regime for children overall.

So, Senator Ludlam, by seeking to rebalance—or tilt the balance, as it were, if I may say so, with respect—away from the protection of the child and back towards the protection of the privacy of the person who is otherwise the beneficiary of the spent offences regime, we think that your amendments take the wrong approach and fail to acknowledge that, as I said at the start of these remarks, the spent offences regime is itself an exception to the ordinary rule that an offence, once recorded, remains a matter of public record. For those reasons, the opposition will not be supporting the Greens amendments.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I will just indicate briefly that I cannot support these amendments. I can understand the constructive intent, I think—to borrow from Senator Evans’s contribution—behind the Australian Greens amendments, but I believe that there ought to be the highest possible standards applied when it comes to checking the background of people who are trusted to work with our children. I think the amendments would go against the grain of what this legislation is intending to achieve.

Whilst the amendments seek to moderate the legislation in terms of various privacy concerns, I am concerned that there may be circumstances where the intent of the legislation and its effectiveness could, in some circumstances, be compromised by these amendments. I know that is not the intent of Senator Ludlam in relation to this, but I think the litmus test for me is: as a parent, wouldn’t you want to know if someone previously convicted of an illegal activity, even if the conviction were spent, quashed or pardoned, were working closely with your child?

I think it is important that we keep what the government has proposed intact. If there are problems in what is being proposed, if unfair circumstances arise, I am sure that that is something that can be the subject of review by the appropriate Senate standing committee. But I think it is important to err on the side of caution and leave the bill in its current form because I think that is the best way forward in terms of having a regime in place that enhances the protection of children.

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

I thank the various senators for their contributions on the Greens amendments and the respectful way in which those contributions were made. I really just want to draw out something that Senator Brandis said, which was that we are attempting to rebalance the way that the bill is drafted back in favour of privacy and away from child protection. In fact, that is not our intention at all. If we had been given evidence on the way through the committee process that this consideration of the full range of offences—everything from shoplifting or speeding to offences committed while you were a child yourself—had any relevance in these background checks then I am not sure that we would be standing here moving these amendments now.

The problem is that the evidence simply is not there. It has not been gathered or collated or, if it has been, it certainly was not provided to the committee in any of the forums, either in a hearing or by way of submissions. So I am not sure that this bill is actually rebalancing back in favour of child protection; it appears to be trading away some rights of privacy without any clear public policy gain whatsoever. So I am not attempting to rebalance anything. We are seeking the evidence that this will in fact provide a greater protection for children. Perhaps the minister wants to stand up and show us the evidence that we missed on the way through the hearing process, because it was not tendered to us.

I just want to correct the record in the sense that we are not trying to trade away the rights of children here. That is absolutely the last thing that I came here to do. The issue is that no evidence was provided to us that this is actually going to be an effective measure in child protection.

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

Can I just say that of course the opposition do not for a moment suggest that Senator Ludlam or the Greens are motivated by any desire to weaken child protection, but we are concerned that the effect of their amendments on this legislation might conceivably be that. For that reason neither we nor, as we understand it, the government are persuaded to Senator Ludlam’s view, but the Greens’ good faith on this issue is not in dispute.

Julian McGauran (Victoria, National Party) Share this | Link to this | Hansard source

The question is that Greens amendments (1) to (5) be agreed to.

Question negatived.

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

I move Greens amendment (6):

(6)    Schedule 1, page 6 (after line 13), at the end of the bill, add:

9  At the end of Division 6

Add:

                 Other than as provided for in this Act, it is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on criminal history information, that has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

Australian Human Rights Commission Act 1986

10  Subsection 3(1) (at the end of paragraph (c) of the definition of unlawful discrimination)

Add “or”.

11  Subsection 3(1) (after paragraph (c) of the definition of unlawful discrimination)

Insert:

         (caa)    Part VIIC of the Crimes Act 1914;

This contains a number of amendments. I am basically moving the balance of the amendments that we have proposed en bloc. This second group is something quite different. It is about reinserting some balance into our laws, because a long-established right is being removed. With respect to Senator Brandis’s comments about the idea of spent convictions being a relatively recent innovation, nonetheless that is something that can be granted in appropriate circumstances in courts around the country, and people have an expectation of that. So we are suggesting that amendments be made to the human rights and equal opportunity act to insert discrimination on the grounds of criminal record and make that unlawful.

This is something that was proposed by the Law Council and by the Human Rights and Equal Opportunity Commission, as it was known. The commission submitted that such an insertion would ensure that employers with access to spent convictions make decisions based on the relevance of the conviction to the person’s ability to perform the inherent requirements of the particular job, so there is some affinity here with the first bloc of amendments that I moved, principally being about relevance.

Protection at the federal level is particularly important in the light of the absence of comprehensive protection on a state and territory level. Tasmania and the Northern Territory, I believe, have laws that specifically prohibit discrimination on the grounds of criminal record, so this would seek to level the playing field. It seems like a perfectly appropriate time to do so, given the nature of the bill that we are debating this afternoon. I commend this final amendment to the chamber.

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

It is a shame in such a constructive and considered debate that, again, I have to oppose Senator Ludlam’s amendments. But I, like Senator Brandis, accept the good faith involved. I think we are just talking about how we get the balance right between what may seem to be competing interests. We do not support this amendment. The government is currently considering the recommendations of the National human rights consultation report and believes that any significant changes to discrimination laws should only be considered as part of that broader process.

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

Are you going to tell us whether we have a bill of rights?

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

It is not in my brief today to announce that, Senator Brandis, as much as I would like to assist you. Perhaps on some occasion, if you want to buy me a glass of wine, I could tell you my own views on the subject. But perhaps it is best I wait for a formal announcement.

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

I suspect your views on the subject are similar to my own.

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

I would hate to think that was the case, Senator Brandis—I am much happier when I am disagreeing with you! As I said, the government are considering the National human rights consultation report. We think any changes to discrimination laws should only be considered as part of that broader process. Criminal record discrimination already forms part of the Commonwealth’s antidiscrimination framework. It is listed in the Australian Human Rights Commission’s regulations as part of the definition of discrimination in employment. So any person who does feel discriminated against by an employer can raise the matter with the Human Rights Commission and seek to have the issue conciliated. As Senator Ludlam pointed out, the vast majority of offences disclosed by the Working With Children Check were actually state and territory crimes and any consideration of changes would obviously require state and territory consultation before they could progress.

We do not support the amendment. We think the sorts of issues that this amendment seeks to raise would be better off considered as part of the broader response to the Human rights consultation report and should not be done on a piecemeal basis. We think that protections are already there and that the Human Rights Commission will police any concerns that might arise in that respect.

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

Can I just indicate that the opposition also opposes this amendment. Indeed, I do not adopt all of the reasons expressed by Senator Evans because, as you know, Mr Temporary Chairman, the opposition’s criticism of the National human rights consultation report is a very trenchant criticism. We do not think that the most powerful reason for not supporting the Greens amendments is that we are awaiting the government’s very tardy, leaden-footed, reluctant and slow response to that very deeply flawed report. We think there is a more obvious reason not to support the amendment, and that is that the suite of antidiscrimination laws, in the opposition’s view, should be limited to broad generic categories, whether it be race, gender, matrimonial status or sexuality. We think that to bring within the categories of the generic racial discrimination laws so narrow a category as this would not be good policy. That is not what the structure of the suite of racial discrimination legislation was designed for. For that reason the opposition is unpersuaded by the amendment.

Question negatived.

Bill, as amended, agreed to.

Bill reported with amendment; report adopted