ADDITIONAL COMMENTS BY THE AUSTRALIAN GREENS
This Bill provides for Commonwealth pardoned, spent or quashed
convictions to be disclosed in criminal history information provided by
CrimTrac or the AFP to employers assessing a prospective employee's suitability
through a Working with Children Check.
This Bill was subjected to a very rapid inquiry, which was going to
proceed without an opportunity to discuss its merits or weaknesses in a public
hearing due to the large load of legislation before this Committee. Given the
very divergent views the Committee did have a brief half day Inquiry which
proved to be very useful in clarifying a number of core issues that had not
been communicated clearly in the Explanatory Memorandum or Bill.
Several thoughtful submissions appreciated the gravity of the legal
principles at stake in disclosing spent, pardoned or quashed convictions
because in so doing incentives and reward for rehabilitation are removed, or a
person's name is marked for life even when they were wrongly convicted or
exonerated. Other submissions described the cumbersome nature of current
screening processes that are not linked nationally, and welcomed efforts to
streamline processes and strengthen measures to protect children.
QLD Law Society noted that the 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," urging the government to commission further research, invite
public discussion and reasoned parliamentary debate. The Law Council was
critical that the safeguards regime, 'offer little protection in the
The Privacy Commissioner contended that it is important to ensure that
any information on such convictions, "is relevant to the purpose it will
be used for...given the sensitivity attached to this information and the
potential for an individual to be stigmatised, embarrassed or discriminated
against if it is mishandled," and suggests a number of safeguards that
screening units do not use irrelevant criminal history information, and that
such information only be used for a relevant purpose."
The Australian Greens acknowledge an epidemic of sexual violence against
women and children across Australia at shamefully high levels. The Greens also
believe that it is every child's right to experience the conditions for optimal
health, growth and development, and protection from violence and abuse. In
examining the Bill in question, it remains unclear as to how disclosing spent,
quashed or pardoned convictions can in this instance better protect children's
Along with the government of Victoria, the Greens do not support the
sharing of information relating to non-convictions as it would be inconsistent
with the principle of innocent until proven guilty and is inconsistent with
human rights which Victorian and ACT citizens enjoy through their Charters of
The Australian Greens support the Committees recommendation for a review
of the legislation after three years of operation. In addition the Greens
believe the Bill should be amended to:
account of the Privacy Commissioner's sensible suggestions, in particular to
disclose quashed, spent or pardoned convictions only where the offence is
demonstrably relevant to the situation, where a causal link can be established
between the offence and the type of employment.
a definition of 'working with children' for the purposes of disclosing
convictions under Commonwealth laws in order to provide guidance to the states
and proscribing authorities as to the scope of situations under which
disclosures could be deemed appropriate. Not only legal and civil liberties
experts were concerned with this issue, the Australian Childhood Foundation
agreed that a definition would give some purpose to the legislation.
consequential amendments to the Human Rights and Equal Opportunity Commission
Act to make discrimination on the ground of criminal record unlawful.
the inconsistency between the Explanatory Memorandum and the Bill noted by the
Law Council in proposed s85ZZGE to include the prohibition into the Bill that
is referred to in the EM.
Senator Scott Ludlam
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