Bills Digest no. 25 2009–10
Crimes Amendment (Working With Children Criminal
History) Bill 2009
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage history
Purpose
Background
Financial implications
Main provisions
Concluding comments
Contact officer & copyright details
Passage history
Date
introduced: 20 August
2009
House: House of Representatives
Portfolio: Home Affairs
Commencement:
The day after Royal
Assent.
Links: The
relevant links to the Bill, Explanatory Memorandum and second
reading speech can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/.
When Bills have been passed they can be found at ComLaw, which is
at http://www.comlaw.gov.au/.
The purpose of the Bill is to
make relevant amendments to Part VIIC of the Crimes Act
1914 to create an exception to the spent convictions scheme
for convictions of persons who work, or seek to work, with
children.[1] The
amendments will require those convictions to 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.
Specific criminal convictions which are over a certain age may
be regarded as spent if certain prerequisites are met. The
rationale behind the spent convictions scheme is that old
convictions have little value in determining how a former offender
will behave in the future, and reliance on old convictions may
result in serious prejudice to the former offender, which could
outweigh their value. Furthermore,
the concept of spent conviction laws is linked
to a value which has considerable influence in our society that
people who do wrong should be given a second chance because they
have the capacity to reform their ways.[2]
It is for this reason that the Commonwealth and most States and
Territories have enacted legislation to counter any discrimination
that may be caused to an offender who declares a conviction which
is a number of years old.[3] It terms of Commonwealth legislation, Part VIIC of the
Crimes Act operates that, in general, a person whose criminal
conviction is spent or quashed, or where the person is pardoned,
they do not have to disclose this conviction, and third persons
cannot disclose the conviction or take it into account, except with
the convicted person s consent.
Under the Commonwealth spent convictions scheme, a person's
conviction is automatically spent on the expiration of a waiting period .
The waiting
period is five years if the offender was a juvenile when convicted
of the offence, or 10 years if the offender was an adult when
convicted of the offence, regardless of when the offence was
committed.
The scheme only applies to convictions which did not result in the
offender being sentenced to imprisonment at all, or where a term of
imprisonment was not more than 30 months and the waiting period has
expired.
Depending on the nature of a subsequent offence, the waiting
period may be extended. Explicitly, if an offender is convicted of
a further summary offence within the waiting period, then a court
may order that the earlier conviction is not spent until the
waiting period for the later offence has ended. If an offender is
convicted of an indictable offence within the waiting period, then
it is extended until the relevant time after the expiration of the
waiting period for the subsequent offence. However, this only
applies to further convictions imposed by a court exercising
federal jurisdiction or a court of a Territory. It does not cover
further offences against State legislation. If the subsequent
conviction relates to an offence against a State law (whether that
conviction was dealt with summarily or on indictment), the earlier
conviction becomes spent only after the expiration of the waiting
period for the subsequent offence.
The Commonwealth scheme, like those of New South Wales and the
Northern Territory, expressly exclude from their provisions
convictions by body corporates.
The Standing Committee of Attorneys-General has been considering
a national model for a spent convictions scheme. A draft Bill that
has been circulated for consultation includes an exclusion section
as it relates to working with children.[4] The discussion paper justifies this on
the grounds that that there are some types of employment where the
individual s interest in putting the offence behind him or her via
the normal application of the spent conviction scheme is outweighed
by the public interest in community safety.[5] Once the Model Bill is finalised, all
jurisdictions will consider whether to implement the model
provisions. This Bill will not frustrate the operation of a new
spent convictions scheme if the Commonwealth elects to adopt the
model provisions.
The following table outlines the current approach to Working
with Children Checks across the various jurisdictions in
Australia.[6]
|
ACT
|
No relevant Act
|
No formal Act or screening
program, however, individual employers may require police checks at
their discretion.
In August 2009, the ACT
government released a community discussion paper on a proposed
system of background checking of people working with vulnerable
people (including children).[7]
|
|
NSW
|
Commission for Children
and Young People Act 1998 (NSW)
|
The NSW Working With
Children Check is an employer driven "point-in-time" system
entailing background checks of employees and the permanent
exclusion of prohibited persons from child-related occupations.
|
|
NT
|
Care and Protection of Children Act 2007 (NT)
|
Individuals are required to
apply for a Working With Children Check, known as a Clearance
Notice in the Northern Territory. A Clearance Notice is valid for
two years, and applies to employers and volunteers in child-related
employment settings.
|
|
Qld
|
Commission for Children
and Young People and Child Guardian Act 2000 (Qld)
|
Individuals are required to
apply for a Working With Children Check, known as a Blue Card in
Queensland. Valid for two years, Blue Cards entitle individuals to
engage in child-related occupations/volunteering.
|
|
SA
|
Children's Protection
Act 1993 (SA)
|
The South Australian system
is an employer driven point-in-time system requiring employers and
responsible authorities to obtain criminal history checks for those
engaging in child-related occupations/volunteering.
|
|
Tasmania
|
No relevant Act
|
No formal Act or screening
program, however, individual employers may require police checks at
their discretion.
In 2005 the Commissioner
for Children Tasmania released a consultation paper discussing
proposals for the Government to introduce screening procedures for
Tasmanian organisations who want to employ people to work with
children.
|
|
Victoria
|
Working With Children
Act 2005 (Vic.)
|
Individuals are required to
apply for a Working With Children Check. Valid for five years, the
Check entitles individuals to engage in child-related
occupations/volunteering.
|
|
WA
|
Working with Children
(Criminal Record Checking) Act 2004 (WA)
|
Individuals are required to
apply for a Working With Children Check. Valid for three years, the
Check entitles individuals to engage in child-related
occupations/volunteering.
|
It is important to note the difference between Police Checks and
Working with Children Checks. Essentially, Working with Children
Checks are both more extensive and more targeted than Police
Checks.[8] The latter
identify and release relevant criminal history information relating
to convictions, findings of guilt or pending court proceedings but
are limited in the information they can provide due to, for
example, the Spent Convictions Scheme (under which prior
convictions are not to be disclosed where 10 years have passed from
the date of the conviction).[9] Working with Children Checks draw together information
from various sources, but may include a primary focus on certain
types of offences (e.g., sexual offences, offences related to the
harm or mistreatment of a child).[10]
This Bill implements the Council of Australian Governments
(COAG) agreement of 29 November 2008.[11] That agreement sought to facilitate
the inter-jurisdictional exchange of criminal history information
for people working with children, including information about
spent, pardoned and quashed convictions:
COAG at this meeting affirmed the importance of
an inter-jurisdictional exchange being put in place as soon as
possible, and endorsed a set of implementation actions, the
establishment of a project implementation committee under the
auspices of COAG and an implementation plan. The
implementation plan includes that jurisdictions will prepare,
introduce and seek passage of legislative amendments within nine
months, to enable the information exchange to commence in 12
months. COAG noted that all jurisdictions, with the exception
of Victoria and the Australian Capital Territory, would exchange
information on non-conviction charges for screening of people
working with children.[12]
This followed an agreement in April 2007 to a framework to
improve access to inter-jurisdictional criminal history information
by child-related employment screening schemes. According to a
spokesperson from the Commonwealth Attorney-General s Department,
there is currently only limited exchange of information in relation
to working with children checks between jurisdictions.[13] This, she says,
undermine(s) the integrity of child-related employment screening
.[14]
In the second reading speech on the Bill, the Minister for Home
Affairs, the Hon. Brendan O Connor MP, noted two main reasons for
COAG s agreement on a framework that allowed for consideration of a
person s full criminal history, including non-conviction
information:
- evidence that incarcerated sexual offenders are more likely to
have previous convictions for non-sexual offences than for sexual
offences and
- indications from law enforcement agencies 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 .[15]
However, the evidence that incarcerated sexual
offenders are more likely to have previous convictions for
non-sexual offences than for sexual offences is based on an
Australian Institute of Criminology report that was published in
2001 which made this statement based on studies conducted in 1992,
1997, 1998 and 2000.[16] Indeed only one of those studies was Australian. The
Government has not referred to more recent evidence to support this
statement. Furthermore, neither the second reading speech nor the
Explanatory Memorandum provides any detail of law enforcement
agencies indications that charges are often withdrawn to protect
the child from court proceedings.
The Explanatory Memorandum states that the amendments in this
Bill have no financial impact on Government revenue.[17] However, if the
working with children checks are to apply to volunteers as the Bill
intends, it is possible that the government will need to consider
the reimbursement of the administrative compliance costs through
the tax system.
There appears to be broad acceptance of the necessity of some
form of working with children check in ensuring the safety of
children. Nevertheless, there appears to be an emerging debate
about issues related to the expansion of criminal records checks in
general. In Australia, there has been a significant increase in
requests for criminal records checks in recent years. Between
2004-05 and 2007-08, requests to CrimTrac, the national criminal
record agency, increased by 73 per cent (1.5 million to 2.6
million).[18]
Requests to the Australian Federal Police increased by 57 per cent
(350,000 to 550,000) in the same period.[19] Other countries have also experienced
significant increases. For example, in England and Wales between
2002-03 and 2008-09, the number of such checks nearly tripled from
1.4 million to 3.85 million.[20]
One general concern with expanding the extent of criminal checks
of people working with children is the increased cost and
administrative burden on employers, charities and other
organisations. For example, the increasing volume of checks,
together with substantial fee increases, has meant that the cost of
fees paid for such checks in England and Wales tripled from 41
million in 2002-03 to 131 million in 2008-09.[21] It has been argued that this has
led to delays in processing job applications and acted as a
deterrent to potential volunteers and employees.[22]
There are some parallels
with the issue of mandatory reporting of suspected cases of child
abuse and neglect. There are mandatory reporting requirements of
some description in every state and territory.[23] In 2007, the Wood inquiry into
child protection services in NSW found that the NSW Department of
Community Services (DoCS) Helpline had been overwhelmed with
reports, too many of which did not warrant the exercise of its
considerable statutory powers .[24] As a result, Justice Wood argued:
much effort and cost is expended in managing
these reports, as a result of which the children and young people
the subject of them receive little in the way of subsequent
assistance, while others who do require attention from DoCS may
have their cases closed because of competing demands on the
system.[25]
In other words, Wood found
that DoCS had been forced to spend an excessive amount of time and
resources on reports of child abuse, thereby diverting attention
away from other important areas of child protection. In response to
the findings of the Wood inquiry, the NSW government announced a
number of changes, including increasing the reporting threshold for
matters reported to DoCS to risk of significant harm.[26] An important lesson
from this experience is that the resource implications of changes
to child protection services can be significant and, if not
adequately addressed, can have a detrimental impact on the overall
quality of services provided.
A further concern is that the expanding use of criminal history
information can undermine the principle that people who have served
their time are entitled to make a fresh start.[27] This point was reportedly made
earlier this year by Federal Human Rights Commissioner, Graeme
Innes, in a letter to Attorney-General, Robert McClelland, in which
he expressed concern about the increasing use of police checks by
employers to deny jobs to people with past convictions (including
for less serious offences that had little bearing on the job
involved).[28]
Further, as Naylor, Paterson and Pittard argue:
the use of this information to exclude people
from employment damages an ex-offender s prospects of
rehabilitation and increases their risk of reoffending, along with
all of the economic and social costs associated with
recidivism.[29]
Clearly, each of the above concerns should be balanced against
the need to take appropriate steps to protect children from abuse.
However, it is also worth noting that to date there has been little
debate about the appropriate use of criminal record checks in
Australia and that there would be some value in further public
discussion about the various issues involved.[30]
Item 1 will remove the reference to section
85ZR of the Crimes Act in section 85ZS and substitute it with the
words (1) Subject to Division 6 . Division 6 outlines the
exclusions to the spent convictions scheme. This will have the
effect that agencies can disclose the pardoned convictions of a
person who seeks to work with children. Item 2
will make a consequential amendment to the end of section 85ZS.
Item 3 will amend existing subsections 85ZT(1)
and (2) so that the exclusions in Division 6 may be used. That is,
where a person s conviction has been quashed, agencies can disclose
the quashed convictions of a person who seeks to work with
children. Further, item 4 will also amend section
85ZU (which deals with the effect of quashed convictions) to make
it clear that
- a person is not able to claim that he or she was not charged
with, or convicted of, an offence and
- other people are able to disclose or take into account the fact
that the person has been charged or convicted, without the first
person s consent.
Item 5 will allow the Privacy Commissioner to
receive and examine 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. The Explanatory Memorandum notes that this is a
safeguard against broader dissemination of pardoned and quashed
convictions .[31]
Item 6 will insert a new Subdivision
A entitled Exclusions (Divisions 2 and 3) into Part VIIC.
Proposed section 85ZZGA clearly states that the
object of this Subdivision is 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. Divisions 2 and 3
set out how the spent convictions scheme applies to pardoned,
quashed and general spent convictions
Proposed section 85ZZGB inserts a new exclusion
section in Division 6 that states that Divisions 2 and 3 do not
apply in relation to the disclosure of information
to a prescribed person or body if:
- the person or body is required or permitted by or under a
prescribed Commonwealth law, a prescribed State law or a prescribed
Territory law, to deal with information about persons who work, or
seek to work, with children and
- the disclosure is required by or under a Commonwealth law, a
State law or a Territory law.
The Explanatory Memorandum notes that this section will
implement the COAG agreement to facilitate the inter-jurisdictional
exchange of criminal history information for people working, or
seeking to work, with children.[32]
Proposed section 85ZZGC inserts the same
exclusion as proposed section 85ZZGB except in so
far as it relates to a prescribed person or body taking into
account information. Prescribed persons or bodies must be able
to take into account the criminal history information in order to
assess the risk that a person may pose to children if permitted to
engage in child related work.[33]
Further, proposed section 85ZZGD allows for
disclosure of information by a prescribed person or body
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.
Proposed section 85ZZGE is essentially a
safeguard provision for the individual. It requires that the
Minister, before prescribing a person or body for the purposes of
section 85ZZGB, 85ZZGC or 85ZZGD, must be satisfied that person or
body meets the following criteria:
- is required or permitted by or under a Commonwealth law, a
State law or a Territory law to obtain and deal with information
about persons who work, or seek to work, with children; and
- complies with applicable Commonwealth law, State law or
Territory law relating to privacy, human rights and records
management; and
- complies with the principles of natural justice; and
- has risk assessment frameworks and appropriately skilled staff
to assess risks to children s safety.
Proposed section 85ZZGC will insert two new
definitions to facilitate the interpretation of the provisions in
this Bill.
Child is defined to mean a person who is under 18.
Work is defined very broadly. It includes working (including
acting) in the following capacities:
- under a contract of employment, contract of apprenticeship or
contract for services; or
- 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
- 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
- as a volunteer, other than unpaid work engaged in for a private
or domestic purpose; or
- as a self-employed person.
Working can also include practical training as part of a course
of education or vocational training. It can also be prescribed
(presumably by legislative instrument) as a person working in
particular capacity or in a particular activity.
The broad definition of work is problematic as it does not
exclude adults who work alongside children such as in a supermarket
or take-away food restaurant. It is likely that the Government
intends the working with children relationship to cover those
adults who have a direct and unsupervised engagement with children
however this is not explicit in the Bill. An amendment to make this
intention clearer is recommended.
Proposed section 85ZZGG requires the Minister
to cause a review to be conducted on the operation of these new
provisions. The review must start not later than 30 June 201 and be
completed, by way of a written report, within 3 months.[34] That report must then
be tabled in Parliament within 15 sitting days after the day on
which the Minister receives the report.
Item 7 repeals paragraphs 85ZZHE(e) and (f)
which contain the current limited exceptions to the existing spent
convictions scheme in relation to the care, instruction or
supervision of minors . These provisions are now proposed to be
replaced by the broader range of working with children exceptions
contained in the Bill.
Concluding comments
This Bill will implement the November 2008 COAG agreement to
share criminal history information between jurisdictions where it
relates to a person seeking to work with children. The Bill is
broad in its application and may serve as a model for other
jurisdictions to adopt. Ensuring the protection and safety of
children is always a desirable outcome and this legislation is
unlikely to field much criticism. However, as noted on page 7 of
this Digest, the justification for aspects of this Bill appears to
be based on very limited relevant evidence. The only source of
evidence provided relies on dated studies (only one of which was
Australian). Given the importance of striking a balance between the
rights of the individual, including the right to privacy, against
the interests of the community, it is reasonable to expect that
more substantial evidence than this could have been provided in
support of such a change. At the very least, the expansion of
criminal checks in recent years suggests the need for greater
public discussion on how to get this balance right. The general
issue is one that deserves a comprehensive and reasoned debate in
Parliament.
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Monica Biddington
Luke Buckmaster
4 September 2009
Bills Digest Service
Parliamentary Library
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