CHAPTER 3
ISSUES
3.1
Submissions supporting the Bill were received from a broad range of
organisations, ranging from child advocacy groups, childcare provider groups,
and church and community and organisations which provide activities and
services for children.
3.2
A number of other organisations, while supportive of the broad principle
underlying the Bill, raised serious concerns with various aspects of the Bill.
Issues raised included the breadth of disclosure and rationale supporting it,
the implications for the presumptions currently in the Crimes Act in relation
to quashed and pardoned convictions, human rights issues and the right to
rehabilitation, the adequacy of privacy safeguards, the prescription of bodies
receiving and using criminal history information, and definitional issues.
Submissions endorsing the Bill
3.3
Community Child Care Co-operative, which advocates for quality
children's services, expressed support for the Bill stating that the safety of
a child in a children's service and a child's own rights to safety outweighed a
person's interest in putting the offence behind him or her via the normal
application of the spent conviction scheme.[1]
3.4
The Salvation Army (Eastern Australian Territory) made a similar point,
while acknowledging that there is a tension between conflicting interests:
The Salvation Army maintains a strong belief in the
possibility of change for all offenders regardless of the nature of the
offence, and is opposed to any form of unnecessary discrimination against them.
However we feel that the disclosure of spent, pardoned and quashed convictions
across jurisdictions for people working or seeking to work with children, youth
and other vulnerable persons is necessary for the protection of children.[2]
3.5
The Salvation Army explained that:
... it is estimated that around 70% of prison inmates
themselves report having experienced abuse as children, highlighting the
devastating and long-term effects of childhood abuse. The damage done to them
should be acknowledged, and every effort made to prevent similar effects on
future generations.[3]
3.6
Some submissions, while supporting provisions of the Bill, expressed a
view that consideration be given to a broader child-related screening
framework.
3.7
The Australian Childhood Foundation expressed the view that the Bill
will significantly enhance the capacity of organisations to protect children
accessing services and programs. The Foundation noted that:
In our work with child related organisations, they welcome
the structures and tools to manage risk to children, and view the content of
prior criminal behaviour as pivotal in their capacity and confidence to provide
safe environments for children. In our experience, if there is any unease for
the children's services or activity providers, it is that there is not enough
information available about applicants.
We believe that information relating to charges withdrawn or
not proven should not be excluded. The decision to exclude such information
does not take into account the prevalence of child sexual abuse and the
overwhelmingly poor rate of prosecution and convictions for child sex offences.[4]
3.8
Dr Joe Tucci from the Australian Childhood Foundation elaborated on why
the Foundation sees the need for the disclosure of information concerning spent
convictions:
From our point of view, we see adults who were sex offenders
a long time ago who basically go underground or do not come to the attention of
any authorities, not because they are not necessarily not engaging in sexual
assault against children but because they have learnt how to avoid being
caught. Over the period of time in which convictions can become spent it does
not necessarily follow that they are not engaging in that kind of sexual
assaulting and behaviour; it is just that we do not know about it. An early
conviction can point to the ongoing risk that this person might pose to
children. That kind of information needs to be made available across
jurisdictions. It will also help those authorities that are responsible for
making decisions around a working with children check or something similar so
that they are able to make some evaluation of whether that person is fit to
work with or support children. I do not think that we should just let that
information slide by. It should be made available and then contextualised by
the people who are in the decision-making position.[5]
3.9
While the submission received from Bravehearts gave thorough support to
the provisions of the Bill, it also suggested further consideration of more
extensive background checks, noting the limitations of a system based on
criminal history checks only for persons working with children. Other areas
for screening suggested in the submission included whether people had been
subject to disciplinary hearings or diversionary programs, their employment
history and also overseas checks.[6]
3.10
A submission from the Commissioner for Children Tasmania strongly
supported the inclusion of non-conviction information in any screening of
individuals for child-related work and endorsed the scope of the Bill. The
Commissioner did however observe that the expression 'risk assessment
frameworks' in proposed s.85ZZGE is not defined, and recommended that:
In order to be proclaimed a 'prescribed body' or 'prescribed
person' the person or body's 'risk assessment frameworks' should be defined.[7]
3.11
Other submissions in support of the Bill or the COAG initiative were
received from Hon. James Wood AO QC[8];
Family Daycare Australia[9];
Scouts Australia[10];
Surf Lifesaving Australia[11];
the Attorney-General and Minister for Corrective Services (WA)[12]
and the Commissioner for Children and Young People and Child Guardian (Qld)[13].
A brief submission was also received from the Law Society of NSW advising that
the Society's Criminal Law and Juvenile Justice Committees had reviewed the Bill
and 'have no objection to the provisions of the Bill'.[14]
Concerns about aspects of the Bill
3.12
While there was widespread support for the Bill, a number of submissions
while supporting endeavours to improve safety and protection to children from
harm through child-related screening processes, raised concerns with the Bill's
provisions.
3.13
These concerns focussed on the following issues:
- disclosure and use of information concerning pardoned and quashed
convictions;
- disclosure and use of information concerning all spent
convictions;
- definition of 'working with children'; and
- adequacy of privacy protections.
Disclosure and use of information concerning pardoned and quashed
convictions
3.14
Section 85ZS of the Crimes Act currently provides that a person who has
been granted a free and absolute pardon because they were wrongly
convicted of an offence is:
- not required to disclose the fact that they were charged with, or
convicted of the offence;
- able to claim that he or she was not charged with, or convicted
of, the offence;
-
not subject to any legal duty or disability to which he or she
would not have been subject if he or she had not been convicted; and
- able to expect that other people may not take into account that
the person was charged with or convicted of the offence, without consent.
3.15
Section 85ZU of the Crimes Act provides similar protections for a person
whose conviction has been quashed in particular circumstances and it is
lawful for a person to claim that they were not charged with, or convicted of,
the offence, and other people may not disclose or take into account the fact that
the person was charged or convicted, without their consent.
3.16
The Crimes Act does not currently provide any exceptions to the
protections afforded under sections 85ZS and 85ZU.
3.17
The proposed new exceptions to allow the disclosure and use of information
relating to a person's pardoned and quashed convictions caused concern for a
number of submitters. The Law Council of Australia, the Queensland Council for
Civil Liberties and the Queensland Law Society all raised issues about these
proposed amendments.
3.18
The Law Council expressed support for endeavours to minimise the risk of
harm to children by carefully screening persons involved with their care,
supervision and instruction. However, the Council expressed concern that:
... several of the Bill's provisions potentially interfere
with a person’s right to rehabilitation, privacy and employment without any
demonstrated justification.[15]
3.19
The Law Council argued that the Second Reading Speech and the
Explanatory Memorandum failed to explain why or how the fact that a person was
once wrongly convicted of an offence should be taken into account in
determining suitability to engage in child-related work.
3.20
Referring to the provisions in the Crimes Act regarding pardoned and quashed
convictions which are discussed above, the Council reminded the committee that
those provisions do not provide for any exceptions or exclusions, and reflect
the principle that:
... if a person has been pardoned (on the basis of a wrongful
conviction) or their conviction has been quashed or set aside by a higher court
on review, they are entitled to the full benefit of that decision. That
requires that the person be treated as if the conviction had never occurred.[16]
3.21
The Law Council summed up the implications of the proposal:
Any different approach would mean that, once convicted, a
person’s guilt can never be fully expunged even where the process by which the
conviction was secured is found to have been flawed.[17]
3.22
It was further explained that these amendments may result in limiting a
person's employment opportunities because of a prior criminal charge, even
though they had been exonerated. The
Council emphasised that it was important to note that these amendments relate
to offences of all types and are not confined to pardoned or quashed
convictions for offences against children.[18]
3.23
The Law Council also submitted that the approach in the Bill is
potentially inconsistent with Australia's obligations under the International
Covenant on Civil and Political Rights:
This appears to be inconsistent with 14(2) of the
International Covenant on Civil and Political Rights which provides that person
should be treated as innocent until proven guilty. In that respect, the Law
Council notes that those jurisdictions with Human Rights Acts, namely the ACT
and Victoria, have both declined to participate in the exchange of information
on non-conviction charges.
....
The amendments, by their very nature, declare that it will
sometimes be legitimate (and therefore compliant with applicable privacy, human
rights and natural justice principles) to take into account, including to a
person's disadvantage, a charge in relation to which that person was ultimately
exonerated.[19]
3.24
The Law Council concluded that:
In the absence of evidence demonstrating that these
amendments will deliver improved child protection outcomes which warrant
interference with fundamental rights, the Law Council submits that the proposed
exceptions to the prohibition on the disclosure and use of information relating
to pardoned or quashed convictions should not be passed.[20]
3.25
The Queensland Council for Civil Liberties was also highly critical of
this aspect of the Bill:
The quashing of their conviction or a person's pardon must
mean that they didn't commit the offence. How then it can in any rational sense
be proper to require them to disclose the fact they were charged?[21]
3.26
The Queensland Law Society also expressed 'serious concerns' about
aspects of the Bill and was also of the view that the requirement to disclose
pardoned and quashed convictions for child related screening was not justified
and had not been based on empirical evidence. The Society described the
research which the Minister quoted in his Second Reading speech for
justification for these amendments as 'limited and dated' and draws attention
to the need for further discussion around the issue.[22]
3.27
The Queensland Law Society stated that the requirement to disclose pardoned
and quashed convictions is inconsistent with section 5(1) of the Queensland
Criminal Law (Rehabilitation of Offenders) Act 1986, which embodies the
notion that when a conviction is quashed on appeal or pardoned, it should
effectively be treated as if it never occurred.[23]
3.28
While supportive of the initiative to facilitate the
inter-jurisdictional exchange of criminal history information, the Office of
the Privacy Commissioner also questioned the relevance of including information
about quashed and pardoned convictions in assessments. The Office’s view is
explained more completely in the subsequent section of this report entitled
'Privacy issues'.
Disclosure and use of information concerning all spent convictions
3.29
The Law Council of Australia and other submitters also commented on the
proposed amendments relating to spent convictions.
3.30
The Law Council reminded the committee that the Crimes Act currently
provides that when persons are being assessed for a position which relates to
the care, instruction or supervision of minors, the assessment may have access
to and take into account any information about prior convictions for a sex
offence or an offence committed against a child, even though even though that
offence would otherwise be regarded as a spent conviction. The Law Council
noted that this provision was to be repealed and replaced with a significantly
broader exception that would allow all spent convictions, not just sex offences
or those against children, to be disclosed where the person was being assessed
for suitability for working with children.[24]
3.31
The Law Council acknowledged that exemptions from the spent convictions
regime were sometimes needed but questioned why it was necessary to disclose all
convictions rather than those that might be relevant to the situation.
3.32
The Law Council submitted that no justification has been offered for why
complete access to information about a person’s spent convictions was needed.
The Council noted the explanations offered in the Second Reading Speech. These
were to the effect that the Australian Institute of Criminology report Child
sexual abuse: offender characteristics and modus operandi had observed that
incarcerated sexual offenders are more likely to have previous convictions for
non-sexual offences than for sexual offences; and that law enforcement agencies
have indicated that charges relating to offences against children are often
withdrawn as a decision is made to protect the child victim from the stress and
trauma of giving evidence, cross-examination and simply waiting for committal
and trial. However, the Law Council did not regard this explanation as
empirically compelling, contending that:
...even if the accuracy of these claims is accepted, they
establish nothing further than that the absence of prior convictions for sexual
offences is not, in itself, a reliable indicia of whether a person is suitable
to work with children.[25]
3.33
The Law Council submitted that the danger of this broad disclosure of
convictions is that it raises the risk that people will be discriminated
against on the basis of old convictions, regardless of relevance to the
inherent requirements of the position sought. The Law Council drew the
committee's attention to the Australian Human Rights Commission (AHRC)
submission on the draft Model Spent Convictions Bill, which provided a case
study highlighting the nature of the risk:
Employment as a youth worker: The complainant was employed as
a locum caseworker for a State Government Department. He disclosed his criminal
convictions and provided information regarding the circumstances surrounding
his convictions. He states that he then applied for a permanent position. He
was told that due to his criminal history, a drug possession (marijuana) charge
16 years ago, he would not be appointed to the position and could no longer
have one-on-one contact with clients. The complainant’s employment was then
terminated.[26]
3.34
The proposed safeguards that were proposed to apply in relation to
compliance of a prescribed person or body with standards set in proposed
s85ZZGE were acknowledged and welcomed, but described by the Law Council as
offering limited protection. The Law Council also noted what it considered an
omission from the Bill:
...while the Explanatory Memorandum provides that a prescribed
person or body may only use a person's criminal history information 'for the
limited purpose of assessing the risk that [the] person may pose in working
with children' and that the 'information may not be used for the purpose of a
general probity or employment suitability check', this prohibition is not
reflected in the Bill itself.[27]
3.35
The Law Council submitted that in the absence of evidence demonstrating
that a particular type of spent conviction is relevant to assessing a person’s
suitability to care for, supervise or instruct children, such a conviction
should not be able to be disclosed or taken into account, and that the Senate
should reject the proposed amendment. The Council stated that if the proposed
amendment were to be passed, it supported the AHRC submission to the Government
on the model. The AHRC's position, in essence, was that there should be a
balancing amendment to the Human Rights and Equal Opportunity Act 1986
to make discrimination on the ground of criminal record unlawful.
3.36
The Queensland Council of Civil Liberties put a similar argument to that
of the Law Council. It submitted that an inquiry should be conducted to assess
what types of offences might signify that a person has a propensity to mistreat
minors and also over what period that propensity might continue.[28]
3.37
The submission of the Queensland Law Society was similar in character,
the Society submitting that a spent conviction should only be required to be
disclosed when a causal link can be established between the offence and the
type of employment sought. The Society's submission was scathing:
The spent convictions scheme is built on the premise that
historic convictions are not a reliable indicator for determining future
behaviour and reliance upon such convictions has the potential to result in
serious prejudice to a former offender. The use of criminal history information
to exclude individuals from employment not only impacts upon a former
offender's rehabilitation, but ultimately increases their risk of re-offending.
It is concerning that this Bill provides yet another example
of a rapidly expanding criminal history checking regime that encroaches upon
the spent convictions scheme without justification borne from relevant modern
research.[29]
3.38
The submission of the Office of the Privacy Commissioner also expressed
the view that it was unclear why the Bill permitted the use and disclosure of
an individual's full criminal history irrespective of the type of offence. The
Office's view is expounded more completely in the subsequent section of this
report entitled 'Privacy issues'.
Government response regarding
spent, pardoned and quashed convictions
3.39
The Attorney-General's Department submission responded to the issues
raised about the proposed exemptions in respect of spent, pardoned and quashed
convictions. In relation to the requirement that all convictions could be
disclosed, not just those relating to sexual or child related offences, the
Department told the committee that:
It is appropriate to consider a person’s complete criminal
history in assessing whether he or she poses a risk to children if employed in
child related work. The nature and circumstances of the offence of which a
person is convicted may be relevant in assessing the person’s suitability to
work with children even if it is not a violent or sexual offence. For example,
convictions for a range of offences where the victim is a child may be
relevant. Other types of offences such as drug trafficking offences or
offences of 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 relevant information would not be disclosed
to a screening unit and could undermine the comprehensiveness of the screening
process. [30]
3.40
At the public hearing, the Department also addressed the question of
disclosure of all offences, not just those of obvious relevance to child
related employment. Officers explained that it would be difficult to include
only certain categories, as there may be other offences where the circumstances
may make the offence relevant to assessing a person's suitability to work with
children.[31]
Officers advised that screening units, with skilled staff, would assess the
relevance of convictions.
We would also accept that there may be such offences where
they may not be relevant and the job of the screening unit is to properly
filter relevant offences from non-relevant offences. There is a full natural
justice process that each of them comply with where individuals who are the
subject of screening have the opportunity to respond to any adverse
information and most processes have both their merits review and a judicial
review of findings of screening units in place. So there is a full process for
that to be worked through with the screening unit.[32]
3.41
Concerning the inclusion of quashed or pardoned convictions, a matter of
considerable controversy for several submitters, the Department responded that:
The fact that a person’s conviction for an offence has been
quashed or pardoned does not necessarily make the facts and circumstances of
that offence irrelevant to an assessment of the risk that the person poses to
children if employed in child related work. A person’s conviction may be
quashed for reasons that do not negate the credibility of evidence on which the
conviction was based. Accordingly, non-conviction information may be useful in
assessing the suitability of a person to work with children.[33]
3.42
Addressing the balance that is to be struck between the interests of
child safety and rehabilitation and the right to work, the Department pointed
to the safeguards built into the Bill:
The jurisdictional authorised screening units that assess a
person’s suitability to work with children are required to have risk assessment
frameworks and appropriately skilled staff to assess risks to children’s safety
and to comply with the principles of natural justice. 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.
An applicant for a working with children check would always
have an opportunity to access the criminal history information available to the
screening unit and to respond to the veracity or circumstances of criminal
history information relating to them that had been sourced by the screening
unit.[34]
3.43
In evidence before the committee, the Department emphasised that the
'bill has been designed to strike an appropriate balance between protecting
children from harm and providing individuals with opportunities to find gainful
employment.'[35]
3.44
The Department told the committee that it had been advised that all
current jurisdictional screening units have appeals processes in place for
decisions made in relation to working with children checks and that each
jurisdictional authorised screening unit would be required to complete a number
of specific tasks before making a decision to issue a negative notice to an
application:
- 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 the
finalisation of the screening decision.[36]
3.45
Responding to concerns that the Bill may breach Australia's Human Rights
obligations, the Department maintained that this was not the case, as while the
Bill allows a screening unit to consider pardoned or quashed convictions, 'it
does not override the presumption of innocence'.[37]
Definition of 'working with children'
3.46
Proposed s85ZZGF of the Bill defines 'child' as a person who is under 18
years of age; and 'work' is defined broadly as including the following:
work includes the following:
(a) work:
(i) under
a contract of employment, contract of apprenticeship or contract for services;
or
(ii) in
a leadership role in a religious institution, as part of the duties of a
religious vocation or in any other capacity for the purposes of a religious
institution; or
(iii) as
an officer of a body corporate, member of the committee of management of an
unincorporated body or association or member of a partnership; or
(iv) as
a volunteer, other than unpaid work engaged in for a private or domestic
purpose; or
(v) as a self employed person;
(b) practical
training as part of a course of education or vocational training;
(c) acting in a prescribed capacity or engaging in a
prescribed activity.
3.47
However, the Bill does not define the term 'working with children'. The
lack of a definition of this term was a matter of concern to a number of
submitters.
3.48
The Law Council of Australia pointed out that under the current
provisions of the Crimes Act, relevant exemptions to the spent conviction
regime are drafted so that they only apply to the assessment of people engaged
in or seeking to engage in a job or activity which involves 'the care,
instruction or supervision' of children. However, the approach in the Bill is different,
referring to 'work, or seek to work, with children.'
3.49
The Law Council was of the view that this phrase is very broad and could
encompass large parts of the workforce who work alongside or in contact with
people under the age of 18, but who have no direct responsibility for them.[38]
The Queensland Law Society made a similar observation, claiming that the
breadth of the definition meant that it would 'encapsulate a vast number of
individuals whose roles involve only indirect association with children', for
example retail shop employees.[39]
3.50
At the hearing, Ms Rosemary Budavari of the Law Council provided the
committee with some examples of the potential impact of this amendment:
The broadness of the phrase might mean that a cleaner in a
childcare centre may have to have their conviction disclosed or taken into
account.
... some of the hypothetical scenarios we considered when
looking at this were things like someone working at McDonald’s, where there is
going to be a clientele of both adults and children; is that working with
children? Or someone working in a retail outlet where some of the customers are
going to be adults and some are going to be children—is that working with children,
potentially?[40]
3.51
The Law Council submitted that there is no need or child protection
imperative for breaching the privacy of this broader class of persons by
subjecting them to criminal history checks, let alone in circumstances where
their pardoned, quashed and spent convictions may be disclosed and taken into
account. It was of the view that a definition of 'work with children' should be
added to the Bill which provides that the phrase only encompasses those
directly engaged in the care, supervision or instruction of children or close
contact with children. Ms Budavari advised the committee that the Law Council
felt this approach was reasonable and proportionate to the risk being addressed.[41]
3.52
The Queensland Law Society also thought that the breadth of the
definition would be problematic in that it would require a much larger number
of people to undergo screening, and strain the resources of screening
organisations.
3.53
Dr Joe Tucci of the Australian Childhood Foundation also felt a
definition of 'working with children' should be included in the Bill:
I think it would be helpful, because I think then you give
some purpose to what the legislation is about, and you can find some common
dimensions across all of the jurisdictions. As you would know, many of the jurisdictions
do have some form of working-with-children check now, and if they do not they
are actively working on developing it, so I think having a definition of it
would definitely give a focus to why this information needs to be exchanged.[42]
3.54
The Attorney-General's Department provided some explanation of this
issue, advising the committee that:
The Bill does not broaden the scope of persons who may need
to undergo a working with children check as these requirements are defined in
each jurisdiction. Defining ‘working with children’ in the Commonwealth Bill is
not possible as there are some variations between jurisdictions in how the term
is defined.[43]
3.55
The Department elaborated on this issue at the hearing, advising that
the Bill was drafted to fit into the current screening processes that exist in
each jurisdiction which operate under their own definitions.
We examined those very closely and in fact circulated to
states and territories a possible draft of the definition of ‘working with
children’. States and territories informed us that including that in a
Commonwealth bill would create real difficulties for them because each of their
jurisdictions has a slightly different definition and imposing our definition
on them could create difficulties with the operation of their existing
screening processes. They advised us quite strongly that they would prefer a
system in which we pick up their existing legislative arrangements, basically,
and have general requirements that our minister has to be satisfied of, but if
we in our bill drafted a whole set of privacy requirements which applied to
them, they could potentially conflict with their own definitions of ‘working
with children’ and our own separate privacy requirements and create real
difficulties for a workable system.[44]
3.56
While the Department is of the view that the current amendment will work
appropriately, officers acknowledged that a consistent approach to the
definition of 'working with children' between jurisdictions is an issue that could
be considered further.[45]
Privacy issues
3.57
Item 5 of the Bill would amend paragraph 85ZZ(1)(b) of the Crimes Act to
extend the Privacy Commissioner's role to include receiving written requests
for exclusion from the quashed and pardoned convictions scheme and advising the
Minister whether an exclusion should be granted. The Commissioner already has
a similar function in respect of spent convictions.
3.58
The Office of the Privacy Commissioner (the Office) made a comprehensive
submission to the inquiry in which it raised a number of issues in relation to
privacy safeguards. The Office’s submission is a useful document which provides
a clear explanation of the operation of the privacy principles as they impinge
on the proposals in this Bill. The committee thanks the Office for the submission,
and commends it to Senators for close reading as part of the consideration of
this Bill.
3.59
The Office expressed support for the initiative underlying the Bill,
acknowledging the importance of the public interest objective aimed at
protecting children from sexual, physical and emotional harm through
comprehensively assessing the criminal history information of people working
with or seeking to work with children. However, the Office also acknowledged
the importance of ensuring that any information excluded from the quashed,
pardoned and spent convictions schemes is relevant to the purpose for which it
will be used, and is not mishandled. The Office highlighted the tensions that
underlie the widening of the exclusions:
The challenge is to ensure that individuals are not prevented
from working with children because of a minor offence committed more than 10
years earlier which had no bearing on that risk.[46]
3.60
The Office's submission addressed a number of safeguards which it
considered 'may help to ensure that screening units do not take account of
irrelevant criminal history information, that such information will only be
used for a relevant purpose and that the information is not misused in another
way.'[47]
The issues raised by the Office were as follows:
- coverage of the Privacy Principles;
- use and disclosure for a relevant purpose;
- privacy safeguards in prescribed laws;
- privacy safeguards and prescribed persons or bodies; and
- Privacy Commissioner's functions.
Coverage of the privacy principles
3.61
The Office pointed out that the Bill and the Explanatory Memorandum do
not clarify which types of persons or bodies will be prescribed as screening
units, and submitted that it is also possible that some of these entities may
not be covered by privacy law.
3.62
The Office gave the example of small businesses with an annual turnover
of $3 million or less, which it said were not generally covered by the Privacy
Act 1988 unless they are contracted service providers to a Commonwealth
government agency or otherwise brought within the coverage of the Privacy Act. The
Office also advised that the Act does not cover State or Territory government
agencies other than ACT government agencies. While some entities that are
exempt from the Privacy Act may be covered by applicable State or Territory
privacy laws, others may not.
3.63
To ensure appropriate coverage, the Office suggested that proposed
section 85ZZGE of the Bill could be amended to require the Minister to be
satisfied that a person or body ‘is subject to’ applicable Commonwealth, State
or Territory privacy law before it may be prescribed as a screening unit.
3.64
The Office submitted that by way of meeting such a requirement, a person
or body that seeks to be prescribed as a screening unit and that is not covered
by privacy laws, could:
i) If it is a small business, choose to be covered by
the Privacy Act under section 6EA of the Privacy Act, which states that ‘a
small business operator may make a choice in writing given to the [Privacy]
Commissioner to be treated as an organisation’
ii) If it is a small business, be prescribed as an ‘organisation’ for particular acts or practices under section 6E(2) of the
Privacy Act, which states that ‘this Act also applies, with prescribed
modifications (if any), in relation to the prescribed acts or practices of a
small business operator prescribed for the purposes of this subsection as if
the small business operator were an organisation’
iii) If it is a State or Territory authority or
instrumentality, be prescribed as an ‘organisation’ under section 6F(1), which
states that ‘this Act applies, with the prescribed modifications (if any), in
relation to a prescribed State or Territory authority or a prescribed
instrumentality of a State or Territory (except an instrumentality that is an
organisation because of section 6C) as if the authority or instrumentality were
an organisation’ or
iv)Where possible, be declared covered by a State or
Territory privacy scheme.[48]
3.65
The Office also suggested a fall-back position should its suggestion not
be adopted, which would require the development, in consultation with the
Office, of a set of publicly available guidelines on good privacy practice for
all entities handling criminal history information under the Bill irrespective
of whether they are covered by the Privacy Act or other privacy laws.
Use and disclosure for a relevant
purpose
3.66
The Office advised the committee of a fundamental principle in the
privacy Act:
...it is a fundamental principle of the Privacy Act that an
individual’s personal information should only be used for a purpose to which
the information is relevant.[49]
3.67
In relation to the Bill, the Office submitted that in its view, an
individual’s full criminal history information may not always be relevant to
assessing a person’s suitability to work with children.
3.68
Addressing the proposed use and disclosure of quashed or pardoned conviction
information as provided for in the Bill, the Office noted that the reasons
given for inserting the original protections relating to the non-disclosure of
this information were that 'if it is subsequently found that a person was
wrongly convicted and a pardon is granted on that basis, justice requires that
the person should be put in the same position as if he or she had never been
convicted at all.'[50]
On this basis, the Office questioned the relevance of including information
about quashed and pardoned convictions in assessments:
In the Office’s opinion where an individual has been
exonerated in relation to a particular offence, that person may have a
reasonable expectation that this information will not need to be collected or
taken into account by others. The Office is also unsure of the relevance of
such information in assessing a person’s suitability to work with children.[51]
3.69
This view had similarities to that put by the Law Council and others,
which are described earlier in this report.
3.70
The Office suggested that if this information was, however, judged to be
relevant, then screening staff should be provided with publicly available
criteria for determining relevance:
The Office would suggest that screening unit staff handling
this information be provided with clear publicly available criteria to help
them identify the comparative relevance of particular criminal history
information in assessing a person’s suitability to work with children and make
consistent decisions.[52]
Privacy safeguards in prescribed
laws
3.71
The Office noted that the Bill refers to 'prescribed Commonwealth, State
and Territory laws' which require or permit a screening unit to ‘deal with
information about persons who work, or seek to work, with children’. The Office
advised the committee that it understood that laws would be developed and
prescribed in fulfilment of the COAG agreement. It expressed concern that these
laws should contain appropriate privacy safeguards, and suggested the inclusion
of the following safeguards in any such laws:
i) Publicly available assessment criteria – The
prescribed laws should contain publicly available criteria to assist screening
units to assess an individual’s suitability for child-related work. Such
criteria should reflect that assessing a person’s criminal history is a risk
management tool and not a guarantee that an individual is suitable or
unsuitable to work with children.
ii) Use for a limited purpose – A screening unit
should only use a person’s criminal history information ‘for the limited purpose
of assessing the risk that [the] person may pose in working with children. The
information may not be used for the purpose of a general probity or employment
suitability check’.
iii) Clearly require or authorise uses or disclosures – If a prescribed law is intended to require or permit the use or disclosure of
a person’s criminal history information, it should clearly and unambiguously
require or authorise such use or disclosure and identify the circumstances in
which this information may be used or disclosed. This measure will help to
clarify whether a particular use or disclosure falls within the ‘required or
authorised by or under law’ exceptions to the use and disclosure privacy
principles in IPP 10.1(c), 11.1(d) and NPP 2.1(g).
iv) Natural justice and appeals – Natural justice
should apply where a screening unit intends to make an adverse decision about
an individual on the basis of their criminal history information. This may
include obtaining the individual’s consent before undertaking the suitability
assessment, disclosing criminal history information considered as part of the
assessment, allowing the individual a reasonable opportunity to be heard,
considering the individual’s response before finalising a decision and allowing
a right to appeal a decision.[53]
3.72
In relation to safeguard ii, the 'use for limited purpose' safeguard,
the Office stated that while this is referred to in the Explanatory Memorandum,
it does not appear to be included in the Bill, and suggested that it be
included in any prescribed laws.
3.73
The Office also suggests that when the laws are prescribed by
regulation, the explanatory statement should state that the prescribed laws
contain these privacy safeguards.
Privacy safeguards and prescribed
persons or bodies
3.74
The Office advised the committee that in its view, the Bill and
Explanatory Memorandum could provide more detail about safeguards relating to
the prescription by the Minister of a person or body as a screening unit in
proposed s85ZZGE of the Bill. The Office reiterated its suggestion that the
Minister should be satisfied that a person or body is 'subject to' applicable
privacy laws before it is prescribed as a screening unit. The Office stated
that if this was impractical, the Explanatory Memorandum could include a
non-exhaustive list of the factors the Minister could take into account in
determining whether a person or body complies (or is likely to comply) with
applicable privacy laws.
3.75
The Office submitted the following comments:
- that the list of factors to be considered by the Minister could
include whether the prescribed person or body has appropriate policies and
procedures in place for the handling of information about individuals’ criminal
history and has appropriate complaint handling practices.
- to ensure there are risk assessment frameworks and appropriately
skilled staff, the Explanatory Memorandum could include a non-exhaustive list
of the factors the Minister may consider when assessing this criterion. These
factors could include whether:
- The person or body has policies, procedures and training programs
in place to help staff determine from a risk management perspective, if
particular criminal history information is relevant to assessing the
suitability of a person to work with children; and
- The person or body has policies, procedures and training programs
in place to ensure that staff will handle individuals’ criminal history
information appropriately. [54]
3.76
The Office also drew the committee's attention to a possible omission in
the Bill, noting that while the Explanatory Memorandum states that ‘a person or
body will only be prescribed for the purpose of enabling them to receive
conviction information if the person or body has a legislative basis for
screening that prohibits further release or use of the information (except for
legislated child protection functions in exceptional circumstances)’, the Bill
does not specifically refer to this criterion. The Office suggested that it
may enhance consistency with the Explanatory Memorandum if this criterion were
added to proposed section 85ZZGE of the Bill.[55]
Functions of the Privacy Commissioner
3.77
On the basis of the Office's submission, it is not clear whether there
was any consultation with the Office of the Privacy Commissioner about its
intended new role under the Bill, especially since the Office submitted that it
considered it would be appropriate for the Privacy Commissioner to be consulted
on any future proposed exclusions from the quashed or pardoned convictions
scheme.[56]
Current child-related employment
exclusions
3.78
The Office noted that the Bill proposes to repeal the exclusions in
sections 85ZZH (e) and (f) of the Crimes Act which currently apply to screening
for child-related work, and drew the committee's attention to item 15 in
Schedule 4 of the Crimes Regulations 1990, which also contains an exclusion
applying to screening for child-related work. The Office suggested that it may
be appropriate to repeal item 15 in Schedule 4. This may help to ensure there
is a consistent approach to applying exclusions from Part VIIC of the Crimes
Act for individuals who work or seek work with children.
Government response to privacy issues
3.79
The Attorney-General's Department did not respond individually to all of
the points made in the Office of the Privacy Commissioner's submission, but did
make a number of comments in relation to the Office's comments relevant to
issues raised in the Office's submission that it is important to establish
safeguards regarding privacy and how disclosure and use of information will be
controlled. The Department submitted that:
Section 85ZZGG of the Bill provides that the Minister for
Home Affairs must be satisfied that a screening unit complies with privacy and
records management legislation in the relevant jurisdiction before it can
become a prescribed body under the Regulations. By virtue of the power to
prescribe a screening unit, the Minister also has the power to remove a
screening unit from the list of prescribed bodies where such an organisation
fails to meet its ongoing obligation to comply with privacy laws. The Minister
and the Implementation Working Group will undertake independent reviews after
the 12 month trial period to ensure that the privacy safeguards set out in the
Bill provide adequate protection to individuals. One of the factors relevant to
the Reviews will be whether screening units are complying with privacy
obligations.[57]
3.80
The Department responded briefly in the public hearing on the Bill to
the Office's suggestions for enhancing privacy safeguards:
Issues were raised about why our bill does not have very
detailed privacy requirements that all jurisdiction screening units have to
comply with ...The reason is that this bill is very much fitting into screening
processes that exist in every jurisdiction. Most jurisdictions have their own
privacy legislation that governs the operation of their screening units...[58]
3.81
The Department disagreed with the Office of the Privacy Commissioner's
suggestion to repeal item 15 of Schedule 4 of the Crimes Regulations 1990. Ms Chidgey
noted at the hearing that this item:
... certainly overlaps to a degree with this bill. That covers
a narrower range of convictions but a slightly broader category of people, and
it just covers spent convictions. It is important that that be there if there
are jurisdictions—Victoria, for instance—where they do not necessarily want the
full range of pardoned or quashed convictions. It also covers some categories
that the bill will not pick up. So, if we remove that, we could inadvertently
limit some of the existing flow of information.[59]
Committee comments
3.82
The committee acknowledges that a number of respected organisations such
as the Law Council have raised significant concerns about this Bill, and does
not dismiss these concerns lightly. However, on this occasion the safeguarding
children from abuse must outweigh those concerns, and the committee is
therefore of the view that the Bill should be supported.
3.83
In coming to this view the committee was persuaded by the evidence of
two organisations in particular, these being the sensible and balanced analysis
of the Salvation Army (Australian Eastern Territory), and the Australian
Childhood Foundation.
3.84
For its part, the Salvation Army pointed to the need for informed risk
management:
It is important to emphasise that disclosure is intended to
allow this information to be known and taken into account for risk management
rather than to automatically preclude employment, particularly when the
conviction was many years in the past with no subsequent convictions and the
applicant has shown evidence of positive change. However disclosure can give
the prospective employer opportunity to make a more accurately informed
decision and to ensure that appropriate risk management strategies are in place
where necessary.[60]
3.85
The Australian Childhood Foundation reminded the committee of the
unfortunate reality that necessitates the proposed amendments. While quoted
earlier in this chapter, Dr Tucci's evidence is of sufficient weight to quote
again in this conclusion:
From our point of view, we see adults who were sex offenders
a long time ago who basically go underground or do not come to the attention of
any authorities, not because they are not necessarily not engaging in sexual
assault against children but because they have learnt how to avoid being
caught. Over the period of time in which convictions can become spent it does
not necessarily follow that they are not engaging in that kind of sexual
assaulting and behaviour; it is just that we do not know about it. An early conviction
can point to the ongoing risk that this person might pose to children.[61]
3.86
The Committee also notes the evidence of the officers of the
Attorney-General's Department which pointed out that most jurisdictions already
have screening arrangements in place which take account of their own pardoned
and quashed convictions. The initiatives in this bill will build on what is
already in place, allowing the details of Commonwealth convictions to be
provided to other jurisdictions and facilitating the exchange of information
between jurisdictions. As such, the Bill is not a radical departure from
existing principles. As noted by the Department representative:
I think there has been some misunderstanding that this sets
up a sort of national scheme for the Commonwealth controlling all checks to do
with working with children. All this bill does is remove Commonwealth
legislative barriers to the provision of some categories of Commonwealth
conviction information. It does not regulate any state or territory conviction
information. We have carefully avoided trying to impose a Commonwealth checking
regime over the top of the existing state and territory ones. We have left
state and territory checking regimes intact. The idea is that we simply
prescribe those regimes so that we can give them our pardoned, quashed and
additional categories of spent convictions—Commonwealth
convictions—information.[62]
3.87
The committee was also reassured by Attorney-General's Department
evidence that the Bill will not lead to unwarranted disclosure of a person's
criminal history, and this information will be confined to the qualified
screening assessment units. Prospective employers will receive only a yes or no
answer as to whether a person is suitable for working with children.[63]
3.88
The committee also notes that the Senate Standing Committee for the
Scrutiny of Bills reported on this Bill in Report No. 12 of 2009, and published
a comprehensive response received from the Minister to issues raised in Alert
Digest No. 11. That committee appears to have been satisfied with the
Minister's response, noting '...the processes in place in screening units in
other jurisdictions which are designed to provide natural justice to those
affected by the operation of the provisions.' [64]
3.89
The committee noted the detailed submission of the Office of the Privacy
Commissioner concerning the need to ensure stringent privacy safeguards are in
place, and the department's response that most jurisdictions already have their
own privacy legislation. The committee was unable to reconcile these views,
which are apparently conflicting. The committee suggests that Minister and the
Implementation Working Group independent reviews referred to in the
Department's submission use the standards described by the Office as a
yardstick to determine whether screening units are adequately complying with
privacy obligations.
3.90
The committee was persuaded by the evidence of the Office of the Privacy
Commissioner that a review of the legislation after 12 months of operation may
not be sufficient due to the possibility that evidence after this period may be
limited, and that a three-year review should be conducted. The committee
recommends accordingly.
Recommendation 1
3.91 The committee recommends that the Bill be amended to provide for a
further review of the legislation after three years of operation, in addition
to that provided for by proposed section 85ZZGG.
Recommendation 2
3.92 The committee recommends that subject to recommendation 1, the Senate pass
the Bill.
Senator Trish Crossin
Chair
Navigation: Previous Page | Contents | Next Page