Final Report Review of the Operation of Subdivision a of Division 6 of Part VIIC of The

Review of the operation of Subdivision A of Division 6 of Part VIIC of the Crimes Act 1914

Final Report

October 2013

Contents

1.Introduction

2.Background

History of the amendments

Working with children criminal history provisions — Subdivision A of Division 6 of Part VIIC of the Crimes Act

3.Conduct of the review

Parameters of the review

Information sought

4.Information provided under Subdivision A

Data

Operational issues

Safeguards

Complaints

5.Views on the operation of Subdivision A

Support

Concerns and issues

6.Issues raised in the 2011 Review

Amendment of explanatory statements for Crimes Regulations

Privacy requirements in the Northern Territory

7.Outcomes and Recommendations

Outcomes of checks disclosing pardoned, quashed or spent Commonwealth convictions

Pardoned, quashed and spent convictions

Requests for additional information

Complaints

Safeguards

Outcomes and Recommendations

Appendix A – Responses received by the review

Appendix B – Compliance with safeguards

1.Introduction

1.1Part VIIC of the Crimes Act 1914 (Cth) (the Crimes Act) governs the disclosure and
non-disclosure of pardoned, quashed and spent Commonwealth convictions (expanded criminal history information). In March 2010, the Crimes Amendment (Working With Children—Criminal History) Act 2010 (Cth) amended Part VIIC to insert new Subdivision A into Division 6 of that Part.

1.2Subdivision A allows information about expanded criminal history information to be disclosed to, and taken into account by, prescribed persons or bodiesfor the purpose of assessing whether a person is suitable for work with children. This serves as an exception to the general rule that such information is not to be disclosed or taken into account.

1.3Section 85ZZGG of the Crimes Act requires the Minister administering the Crimes Act to initiate two reviews of the operation of Subdivision A:

85ZZGG Reviews of operation of this Subdivision

(1) The Minister must cause 2 reviews of the operation of this Subdivision to be conducted.

(2) The first review must:

(a) start not later than 30June 2011; and

(b) be completed within 3 months.

(3) The 2nd review must:

(a) start not later than 30June 2013; and

(b) be completed within 3 months.

(4) The Minister must cause a written report about each review to be prepared.

(5) The Minister must cause a copy of each report to be laid before each House of the Parliament within 15 sitting days of that House after the day on which the Minister receives the report.

1.4The first review commenced on 30 June 2011 and was completed on
30 September 2011. The report was tabled in Parliament on 21 November 2011.

1.5The second review commenced on 30 June 2013 and was completed on
30 October 2013. A report of the review’s findings is below.

2.Background

History of the amendments

2.1The amendments made by the Crimes Amendment (Working With Children—Criminal History) Act 2010 (Cth) (the Working with Children Act) were developed in response to a 2008 Council of Australian Governments (COAG) decision. In November 2008, COAG agreed to develop an inter-jurisdictional exchange of ‘expanded’ criminal history information for people working with children. As defined in paragraph 1.1, in this report ‘expanded criminal history information’means details about pardoned, quashed and spent convictions. Such information was not routinely shared across State and Territory borders prior to the agreement.

2.2Section 85ZR of the Crimes Act provides that a pardoned conviction is one where a person has been granted a free and absolute pardon for a Commonwealth offence or a Territory offence because the person was wrongly convicted of the offence. In such circumstances the person is taken, for all purposes, never to have been convicted of the offence.

2.3Under s 85ZN of the Crimes Act, a conviction for an offence shall be taken to have been quashed:

(a) where the person was convicted of the offence – ifthe conviction has been quashed or set aside;

(b) where the person was found guilty of the offence, but discharged without conviction – ifthe finding of guilt has been quashed or set aside; or

(c) where the person was not found guilty of the offence, but a court has taken it into account in passing sentence on the person for another offence:

(i) if the person's conviction of the other offence has been quashed or set aside; or

(ii) if the court's decision to take the offence into account has been set aside.

2.4Section 85ZM of the Crimes Act provides that a conviction for a Commonwealth offence will become spent where:

(a)the person has been granted a pardon for a reason other than that the person was wrongly convicted of the offence, or

(b) the person was not sentenced to imprisonment for the offence, or was not sentenced to imprisonment for the offence for more than 30 months and the waiting period for the offence has ended.

2.5The waiting period for a conviction to become spent means:

(a)if the person convicted of the offence was dealt with as a minor in relation to the conviction—the period of 5 years beginning on the day on which the person was convicted of the offence; or

(b)in any other case—the period of 10 years beginning on the day on which the person was convicted of the offence.

If the individual is convicted of another offence during this period, the waiting period for the later offence will start from the date of the conviction for the later offence and will cause the waiting period for the initial offence to restart from the date of conviction for the later offence.

2.6In addition, the decision to spend a conviction may be subject to other provisions in the Crimes Act that may alter the relevant waiting period or provide exemptions from the scheme for particular purposes.

2.7The COAG agreement was implemented by means of a Memorandum of Understanding (MOU) between the Commonwealth, States and Territories.[1] The MOU established a trial for a ‘national exchange of criminal history information’ through which jurisdictions could share expanded criminal history information held by police services. This scheme is referred to as the Exchange of Criminal History Information for People Working with Children (ECHIPWC).

2.8In 2013, COAG members agreed to an Inter-Governmental Agreement (IGA) for ECHIPWC that would replace the MOU and make permanent arrangements for the interjurisdictional exchange of expanded criminal history information. The IGA commenced on 2 September 2013.

2.9The IGAspecifies arrangements for how expanded criminal history information is to be exchanged, as well as participation requirements for the screening agencies that participate in ECHIPWC and receive the information. Screening agencies are organisations that assess whether someone is suitable for employment in a position working with children. These assessments are conducted upon a request being made by an employer seeking to employ someone in child-related work.

2.10The IGA also provides for the exchange of ‘additional information’ held by police services about the circumstances of particular convictions, to the extent that such information is available. Additional information may include the ages of the victim and the offender at the time of the offence, whether the offence involved children, the relationship between the offender and any child involved and other relevant information.

Working with children criminal history provisions — Subdivision A of Division 6 of Part VIIC of the Crimes Act

2.11Subdivision A is located in Division 6 of Part VIIC of the Crimes Act. Part VIIC governs when Commonwealth convictions can be considered to be pardoned, quashed or spent (see paragraphs 2.2 – 2.4 above). It also contains rules about the circumstances in which a person is no longer required to disclose his or her convictions, as well as the circumstances in which others cannot disclose or take into account those convictions.

2.12Division 6 creates exclusions to the general rules in Part VIIC. These exclusions enable other people to disclose information about expanded criminal history information, or take them into account without a person’s consent in particular circumstances.

2.13Prior to the passage of the Working with Children Act, information about pardoned and quashed convictions could not be disclosed as part of a Working With Children Check.

2.14The Working with Children Act introduced new Subdivision A to deal with the disclosure of Commonwealth convictionswhere a person is seeking to work with children. Subdivision A operates to:

provide for new exclusions which allow the disclosure of informationabout a person’s expanded criminal history information 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, andfor the purpose of obtaining or dealing with such information in accordance with the prescribed law
define ‘child’ and ‘work’ for the purposes of the new exclusions
specify criteria that persons or bodies 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.
The Working With Children Act also introduced a requirement for the Minister administering the Crimes Act to cause two reviews of the operation of the new provisions to be undertaken in 2011 and 2013.
The practical effect of Subdivision A is that expanded criminal history information can now be disclosed to screening agencies that conduct Working with Children Checkswhen requestsare made for a person’s criminal history information. At the Commonwealth level, the disclosure process is facilitated by the Australian Federal Police (AFP) and CrimTrac (see Part 7 of this report for further information).
Expanded criminal history information may only be disclosed to screening agencies that have been prescribed in the Crimes Regulations 1990 (Cth)(the Crimes Regulations). Under section 85ZZGE of the Crimes Act, before an agency can be prescribed the Minister must be satisfied that the agency:
is required or permitted under a Commonwealth, State or Territory law to deal with information about people working with children
complies with applicable privacy, human rights and records management laws
complies with principles of natural justice, and
has a risk assessment framework in place and appropriately qualified staff.
There are currently 10 screening agencies prescribed in regulation 7A ofthe CrimesRegulations. In addition, the ACT and SA nominations for participating screening agencies under ECHIPWC were approved by COAG in July and August 2013 respectively, shortly before the Government went into a caretaker role prior to the federal election on 7September 2013. Action is being taken to add the ACT and SA screening agencies to the list of prescribed agencies in the Crimes Regulations.

3.Conduct of the review

3.1On 18 July 2013, the Attorney-General’s Department wrote to prescribed screening agencies, Government agencies and a range of other organisations to gather information and views about the operation of Subdivision A. Responses were requested by 12 August 2013.

3.2Responses were received from all prescribed screening agencies (except the Screening Assessment For Employment – Northern Territory)and from 16other relevant bodies. A list of agencies and bodies that provided responses is at Appendix A.

3.3The 2013 review is the second and final review into the operation of Subdivision A of the Crimes Act. As such, the Department consulted broadly and provided extensions to many agencies consulted to ensure comprehensive responses were received. Ongoing consultation and extended engagement with screening agencies during the analysis phase was necessary to gain greater clarity around responses received for the review. This has resulted in the review being finalised in October 2013 rather than 30 September 2013 as required by section85ZZGG of the Crimes Act.

Parameters of the review

3.4The object of Subdivision A is to help protect children from sexual, physical and emotional harm.[2] In conducting the review, the Attorney-General’s Department sought to establish whether by permitting expanded criminal history information to be disclosed and taken into account in assessing the suitability of persons for working with children is achieving this objective.

3.5To ensure that information disclosed under Subdivision A is being used and treated appropriately, the Attorney-General’s Department also sought to establish whether the safeguards in the Working With Children Act are being applied, namely whether screening agencies continue to comply with Commonwealth, State or Territory laws relating to privacy, human rights and records management, comply with the principles of natural justice and have risk assessment frameworks and appropriately skilled staff to assess risks to children’s safety.[3]

3.6The Attorney-General’s Department also sought information on whether any complaints or other issues have arisen as a result of Subdivision A’s operation.

Information sought

3.7Prescribed screening agencies were asked the following questions.

Has access to criminal history information about a person’s spent, pardoned and quashed Commonwealth convictions enhanced your agency’s decision-making when determining whether individuals are suitable for working with children? If yes, how and in what ways?

It would be particularly useful if you could provide information or data about the following:

-the number of instances in which information about a person’s pardoned, quashed or spent Commonwealth convictions has led to a finding that someone is not suitable for working with children

-the number of checks conducted that have taken into account information about a person’s pardoned, quashed or spent Commonwealth convictions

-the types of Commonwealth conviction that are being disclosed to your agency, or

-any other information which you consider relevant.

Does your organisation continue to comply with the safeguards listed in
section 85ZZGE of the Crimes Act?
Are you aware of any complaints about the use or handling of information provided under Subdivision A?
If complaints have been received please provide the following information:

-the number of complaints made

-the number of complaints yet to be resolved, and

-the process for dealing with complaints.

Are there any additional issues which you wish to discuss in relation to this matter?
The Office of the Australian Information Commissioner and State and Territory Privacy and Information Commissioners were asked whether any complaints had been received in relation to the disclosure of expanded Commonwealth convictions.
The Australian Federal Police and CrimTracwere asked to provide information on operational aspects of the provisions.
Bodies that expressed an interest in the legislation during the Senate and Legal and Constitutional Affairs Committee’s inquiry into Working With Children Act were invited to share any views on the operation of the provisions along with relevant bodies such as State and Territory law societies.

4.Information provided under Subdivision A

Data

4.1The 2011 Review found that there was a low level of statistical information available from screening agencies about the quantity and nature of Commonwealth criminal information being shared, as well as the outcomes of decisions which take that information into account. It found that a majority of State and Territory screening agencies do not generally collect such information due to the costs and labour involved. In the final report of the 2011 review, the Department undertook to discuss this issue with screening agencies.

4.2The 2011 Review recommended that:

complete information about thenumber of Commonwealth convictions disclosed to screening agencies under Subdivision A be collected and retained, as well as information about whether those convictions were pardoned, quashed or spent and the types of offences to which they relate, and
information be collected and retained about the outcomes of assessments involving Commonwealth criminal history information, in particular instances in which a person is issued with a negative assessment on the basis of that information.
In September 2012, the then Attorney-General, the Hon Nicola Roxon MP, wrote to State and Territory justice ministers requesting that screening agencies collect statistical information on expanded criminal history information.
Feedback received from screening agencies and the AFP for this Review in response to the letters sent out by the Department on 18 July 2013 provided statistical information on:

the number of checks disclosing expanded criminal history information
where possible, information on whether the conviction was pardoned, quashed or spent
the number of checks involving Commonwealth convictions that resulted in a negative assessment
the nature of offences disclosed through a check, and
the number of requests for additional information on Commonwealth convictions.
Statistical information is reflected throughout this Review and is considered in more detail in the analysis below.

New South Wales screening agencies

4.6The NSW Office of the Children’s Guardian (the NSW Children’s Guardian) indicated that in response to the former Attorney-General’s request to collect and retain statistical information, NSW Approved Screening Agencies have gathered statistical information on the receipt and use of Commonwealth criminal history information. The NSW Children’s Guardian provided a coordinated response on behalf of all prescribed screening agencies in NSW.

4.7The NSW Children’s Guardian advised that from 1 January 2012 to June 2013, there were fourteen releases (each release covers a single conviction) of Commonwealth criminal history information (CHI) for ten applicants for Working with Children Checks. However, NSW Approved Screening Agencies have not consistently retained data on whether these matters were convictions which would always be disclosed or spent, pardoned or quashed convictions. Therefore, the NSW Children’s Guardian is unable to provide a breakdown to indicate which checks involved expanded criminal history information under ECHIPWC.

4.8The breakdown for each NSW screening agency is as follows:

NSW Children’s Guardian (formerly the Commission for Children and Young People) received four releases of Commonwealth CHI for two applicants[4]
NSW Health received five releases of Commonwealth CHI for four applicants, and
NSW Department of Education and Communities received five releases of Commonwealth CHI for four applicants.

Victorian Department of Justice

4.9The Victorian Department of Justice advised that information provided under
Subdivision A has assisted in assessing the suitability of one applicant who was denied permission to work with children. The applicant’s criminal history information involved a Commonwealth spent conviction along with State and Territory offences. However, the decision to deny permission to engage in child-related work was based on the State and Territory offences and not the Commonwealth spent conviction.