Explanatory Memorandum
(Circulated by authority of the Minister for for Home Affairs, the Honourable Brendan O'Connor MP)General outline and financial impact statement
General outline
The Bill contains amendments to Part VIIC of the Crimes Act 1914 (Crimes Act). Part VIIC governs the disclosure and non-disclosure of pardons, 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 from taking it 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:
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- Repeal the existing exclusions in Division 6 which relates to the disclosure of spent convictions information in relation to the care, instruction or supervision of minors.
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- Replace the existing exclusions with new exclusions which allow the disclosure of information:
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- about a person's spent, quashed and pardoned convictions,
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- to or by a prescribed person or body permitted or required by or under a prescribed law to obtain and deal with information about persons who work, or seek to work, with children, and
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- for the purpose of obtaining or dealing with such information in accordance with the prescribed law.
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- Define 'child' and 'work' for the purposes of the new exclusions.
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- 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.
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- 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.
PURPOSE
The purpose of the Bill is to implement the Council of Australian Governments' (COAG) agreement of 29 November 2008 to facilitate the inter-jurisdictional exchange of criminal history information for people working with children (ECHIPWC), including information about spent, pardoned and quashed convictions.
As part of the agreement, each jurisdiction is required to remove any legislative impediments to the exchange of criminal history information for people working with children. This Bill removes the legislative barriers at the Commonwealth level to ensure that the Commonwealth can provide information in accordance with the COAG agreement.
FINANCIAL IMPACT STATEMENT
The amendments in this Bill have no financial impact on Government revenue.
NOTES ON CLAUSES
Clause 1: Short Title
This clause provides that when the Bill is enacted, it is to be cited as the Crimes Amendment (Working With Children - Criminal History) Act 2009.
Clause 2: Commencement
This clause sets out that the Act will commence on the day after it receives the Royal Assent.
Clause 3: Schedule(s)
This is a formal clause that enables the Schedules to amend Acts by including amendments under the title of the relevant Act.
Schedule 1 - Crimes Act 1914
Item 1: Amend section 85ZS
This item removes the reference to the effect of section 85ZR on section 85ZS from the beginning of the section. Item 2, below, inserts this reference at the end of section 85ZS. This ensures drafting consistency between the related provisions in Part VIIC.
Section 85ZR provides that where a person has been granted a full and absolute pardon for an offence because he or she is was wrongly convicted, they are taken not to have been convicted of the offence.
Section 85ZS currently provides that, where a person is convicted of an offence but is later pardoned because he or she was wrongly convicted of the offence, in particular circumstances and for particular purposes:
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- the person is not required to disclose the fact that he or she was charged with, or convicted of, the offence
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- it is lawful for the person to claim that he or she was not charged with, or convicted of, the offence
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- the person is 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
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- 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.
This item amends section 85ZS so that it is subject to the exclusions in Subdivision A of Division 6. The qualifications outlined above will not apply to the disclosure of pardoned 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, as detailed in Item 6 below.
This has the effect of permitting agencies such as CrimTrac and the Australian Federal Police to disclose pardoned convictions for the purpose of assessing a person's suitability to engage in child-related work.
Item 2: Amend section 85ZS
This item inserts a reference to the effect of section 85ZR on section 85ZS, as detailed above, to ensure drafting consistency between the related provisions in Part VIIC.
Item 3: Amend subsections 85ZT(1) and (2)
Section 85ZT currently provides that, where a person's conviction has been quashed, the person is not required to disclose the fact that the person has been charged with, or convicted of, the offence.
This item amends section 85ZT so that it is subject to the exclusions in Subdivision A of Division 6.
Item 4: Amend section 85ZU
Section 85ZU currently provides that, where a person's conviction has been quashed, in particular circumstances and for particular purposes:
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- it is lawful for the person to claim that he or she was not charged with, or convicted of, the offence, and
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- 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.
This item amends section 85ZU so that it is subject to the exclusions in Subdivision A of Division 6. As a result, the above qualifications 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, as detailed in Item 6 below.
This has the effect of permitting agencies such as CrimTrac and the Australian Federal Police to disclose quashed convictions for the purpose of assessing a person's suitability to engage in child-related work.
Item 5: Amend paragraph 85ZZ(1)(b)
The Privacy Commissioner currently has the function under Part VIIC of receiving and examining any written requests for complete or partial exclusion of persons from the application of Division 3 of Part VIIC, relating to the non-disclosure of spent convictions, and providing advice to the Minister.
This item inserts an additional function of receiving and examining any written requests for complete or partial exclusion of persons from the application of Division 2 of Part VIIC, relating to the non-disclosure of pardoned and quashed convictions. This amendment is necessary as no exclusions previously applied to Division 2.
This item ensures that the Privacy Commissioner has the opportunity to examine any further requests for exclusion from the application of Division 2 of Part VIIC. The Privacy Commissioner will have the opportunity to advise the Minister whether an exclusion should be granted, and any restrictions that should be imposed.
This provides an important safeguard against broader dissemination of pardoned and quashed convictions, extending the existing safeguard which applies to spent convictions.
Item 6:
Insert new Subdivision A - Exclusions (Divisions 2 and 3) into Part VIIC
Section 85ZZGA
This item explicitly states the purpose of the provisions being introduced. That purpose is to assist in the protection of children by permitting criminal history information to be disclosed and taken into account in assessing the suitability of persons for work with children.
Section 85ZZGB
This item will allow the disclosure of information:
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- about a person's spent, quashed and pardoned convictions
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- to a prescribed person or body permitted or required by or under a prescribed law to obtain and deal with information about persons who work, or seek to work, with children, and
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- where that information is disclosed for the purpose of obtaining or dealing with such information in accordance with the prescribed law.
This is necessary to implement the COAG agreement to facilitate the inter-jurisdictional exchange of criminal history information for people working, or seeking to work, with children.
This item provides an exclusion to the application of Division 2 of the Crimes Act, which states that a person is not required to disclose criminal history information about:
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- quashed convictions, or
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- pardoned convictions, where a pardon was granted because he or she was wrongly convicted of the offence.
This item also provides an exclusion to the application of Divisions 2 and 3 of Part VIIC of the Crimes Act, which state that a person is not required to disclose criminal history information about spent convictions, which are:
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- pardoned convictions, where a pardon was granted for a reason other than that the person was wrongly convicted of the offence, or
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- other convictions for which a person was sentenced as an adult to imprisonment for 30 months or less, after a waiting period has expired.
Currently the Crimes Act does not allow the disclosure of criminal history information about quashed convictions and pardons for wrongful convictions. In relation to spent convictions it only allows disclosure in relation to a person working with children for the limited purpose of determining whether the person has been convicted of:
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- a sexual offence, or
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- an offence against the person where the victim was under 18 years of age at the time the offence was committed.
Safeguards
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.
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:
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- is authorised by the government of the State or Territory in which it operates
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- has a legislative basis for screening that prohibits further release or use of the information (except for legislated child protection functions in exceptional circumstances)
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- complies with applicable privacy, human rights and records management legislation
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- reflects principles of natural justice, and
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- has risk assessment frameworks and appropriately skilled staff to assess risks to children's safety.
Establishment of screening units
In several jurisdictions, various bodies currently undertake child-related employment screening. Some, but not all, of these bodies will be prescribed to obtain and deal with criminal history information under this Bill, in accordance with the participation requirements. Examples include:
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- Commission for Children and Young People and Child Guardian (Qld)
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- Commission for Children and Young People (NSW), and
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- Department of Justice (Working with Children Check Unit) (Vic)
In other cases, new bodies will be established to make assessments of the risk a person may pose in working with children. This item provides the capacity to prescribe by regulation additional bodies as they are created, to ensure that all appropriately authorised screening bodies will be able to access the criminal history information.
Section 85ZZGC
This item provides the same exclusions to Divisions 2 and 3 of Part VIIC of the Crimes Act as section 85ZZGB, but in relation to the taking into account of criminal history information by a prescribed person or body.
This item allows a prescribed person or body, to take into account the criminal history information received through the information exchange as required or permitted by law. Prescribed persons or bodies must be able to take into account the information received in order to assess the risk that a person may pose to children if permitted to engage in child related work.
Section 85ZZGD
This item provides the same exclusions to Divisions 2 and 3 of Part VIIC of the Crimes Act as section 85ZZGB, but in relation to the disclosure of information by a prescribed person or body rather than to a prescribed person or body.
This item recognises, and allows for, a prescribed person or body to disclose information received under the exchange where there is a statutory obligation to use or disclose information for the protection of a particular child or class of children, as part of a legislated child protection function.
Section 85ZZGE
This item requires the Minister for Home Affairs be satisfied that certain criteria are met before a person or body can be prescribed to deal with Commonwealth criminal history information about persons who work, or seek to work, with children.
A person or body will not be able to be prescribed unless the Minister is satisfied that the screening unit has a legislative basis for doing so and complies with applicable privacy, human rights and records management legislation.
Also, the Minister must be satisfied that the person or body complies with the principles of natural justice, and has risk assessment frameworks and appropriately skilled staff to assess risks to children's safety.
This provides additional safeguards against the misuse of criminal history information.
Section 85ZZGC
This item inserts two definitions, relevant to Part VIIC of the Crimes Act as amended by this Bill.
The term 'child' is defined to mean a person who is under 18. This is consistent with the definition of a child used by the ECHIPWC Working Group.
The term 'work' has a broad inclusive definition in the Bill. It includes individuals who are engaged to work under a contract of employment or contract for services. The definition encompasses those persons in leadership roles of religious institutions and extends to persons holding positions as officers of a body corporate, a committee, association or partnership. The definition includes persons in paid and voluntary work and extends to persons who are self employed or in practical training as part of an educational or vocational course.
Defining 'work' broadly will assist in comprehensive child-related employment screening and ensure that all forms of work which involve children are captured by the definition.
This item also provides the capacity to prescribe additional roles and activities to ensure that emerging forms of child-related work can be included.
Section 85ZZGD
This item requires the Minister to cause a review of Subdivision A to be conducted. The review is to commence not later than 30 June 2011 and must be completed within 3 months. The report on the review must be prepared and tabled in each House of the Parliament within 15 sitting days of that House after the day the Minister receives the report.
Given the sensitive nature of the information that will be available under the information exchange it is important to assess the effectiveness of the regime, and ensure that information is being dealt with appropriately.
This safeguard is in addition to the ECHIPWC Working Group recommendation that the expanded information exchange program be assessed after a one year trial period.
Subdivision B - Exclusions (Division 3)
Item 7: Repeal paragraphs 85ZZH(e) and (f)
Paragraphs 85ZZH(e) and (f) exclude the application of Division 3 of Part VIIC of the Crimes Act and enable the disclosure of spent conviction information to or by, or the taking into account of spent convictions information by:
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- a person or body who employs or otherwise engages other persons in relation to the care, instruction or supervision of minors, and
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- a person or body who otherwise makes available care, instruction or supervision services for minors,
for the purpose of determining whether that person has been convicted of a 'designated offence', defined as:
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- a sexual offence, or
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- an offence against the person where the victim was under 18 at the time the offence was committed.
This item repeals these provisions as they are inconsistent with the terms of the COAG agreement. Paragraphs 85ZZH(e) and (f) do not cover all offences and are not sufficiently comprehensive in enabling the assessment the risk a person may pose to the safety and well-being of children if they are engaged in child-related work.
Item 8: Insert a new heading - Subdivision C - Other matters
This item inserts a new heading, Subdivision C - Other matters into the Crimes Act, after section 85ZZJ.