The legislation is promoted as "a crucial part of the Government's strategy to help protect children from sexual, physical and emotional harm", given that "children deserve our utmost efforts to ensure their safety and wellbeing".
The Bill will amend the Crimes Act 1914 (Cth) -
to expand the range of criminal history information that can be exchanged between jurisdictions for the purpose of assessing the suitability of persons to work with children.Reviews of the legislation, which implements a November 2008 agreement by the Council of Australian Governments (COAG), will be conducted in 2011 and 2013. As part of the 2008 agreement, each Australian jurisdiction is required to remove any legislative impediments to the exchange of criminal history information for people working with children. The current Bill removes the legislative barriers at the Commonwealth level to ensure that the national government can provide information in accord with the COAG agreement.
These amendments will allow authorised screening units to receive a greater range of Commonwealth criminal history information in order to assess the risk a person poses in working with children.
The use and disclosure of the information will only be for this limited purpose, and will be subject to strict safeguards.
Screening units will be required to comply with applicable privacy, human rights and records management legislation and to reflect the principles of natural justice in their screening processes.
The legislation aims to -
help protect children from sexual, physical and emotional harm by permitting criminal history information to be disclosed and taken into account in assessing the suitability of persons for work with children.Work includes -
(a) work:In essence, the Bill contains amendments to Part VIIC of the Crimes Act. That Part governs the disclosure and non-disclosure of pardons, quashed and spent convictions. It provides that a person whose conviction is 'spent', pardoned or quashed does not have to disclose the fact of the conviction. It also prohibits others from disclosing the conviction without the person's consent and from taking it into account.
(i) under a contract of employment, contract of apprenticeship or contract for services; or(b) practical training as part of a course of education or vocational training;
(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;
(c) acting in a prescribed capacity or engaging in a prescribed activity.
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 a wide range of Commonwealth, State and Territory screening agencies in determining whether the person is suitable to work with children.
The amendments thus repeal existing exclusions in Division 6 regarding disclosure by bodies such as CrimTrac and the Australian Federal Police of spent convictions information in relation to the care, instruction or supervision of minors. Those provisions are replaced with new exclusions that allow the disclosure of information about a person's spent, quashed and pardoned convictions to entities permitted/required to obtain and deal with information about persons who work, or seek to work, with children.
Section 85ZU of the Crimes Act currently provides that, where a person's conviction has been quashed, in particular circumstances and for particular purposes, it is lawful for that person to claim that he/she was not charged with, or convicted of, the offence, and other people may not disclose or take into account (for the particular purpose) the fact that the person has been charged or convicted, without his or her consent.
The Bill amends the section so that it is subject to exclusions, meaning that those restrictions will not apply to the disclosure of quashed convictions for the purpose of assessing the risk a person may pose to the safety and well-being of children if they are engaged in child-related work. That will permit agencies such as CrimTrac to disclose quashed convictions for the purpose of assessing a person's suitability to engage in child-related work.
That disclosure is problematical and the Government has indicated that
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 stringent safeguards and conditions.Given misadventures with information going for a wander outside state/territory government offices (and nongovernment bodies gifted with such data) the Government has announced that -
One safeguard included in the Bill is that the criminal history information received 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 probity or employment suitability check.
Another important safeguard under the COAG agreement is that certain participation requirements must be met before a person or body can receive the information. In accordance with the COAG agreement, a person or body will only be prescribed for the purpose of enabling them to receive conviction information if the person or body:
. is authorised by the government of the State or Territory in which it operates
. has a legislative basis for screening that prohibits further release or use of the information (except for legislated child protection functions in exceptional circumstances)
. complies with applicable privacy, human rights and records management legislation
. reflects principles of natural justice, and
. has risk assessment frameworks and appropriately skilled staff to assess risks to children's safety.
