EXPLANATORY STATEMENT
Select Legislative Instrument 2012 No. 20
Issued by the authority of the Minister for Justice
Crimes Amendment Regulation 2012 (No. 1)
Statement of Compatibility with Human Rights
This legislative instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
This legislative instrument supports the right to privacy and reputation by ensuring that the Crimes Regulations 1990 accurately list the persons and bodies to which personal information about pardoned, quashed or spent convictions may be disclosed for the purposes of assessing a person’s suitability to work with children.
Purpose
The purpose of the Regulation is to update the list of persons or bodies able to receive information about certain types of Commonwealth criminal records under the Crimes Act 1914 (Crimes Act).
In most Australian jurisdictions, people are required to undergo a working with children check before they can engage in child-related work. These checks are generally undertaken by screening agencies that specialise in assessing whether or not people are suitable to work with children.
A key component of working with children checks is a review of the applicant’s criminal record to determine whether the applicant has any convictions that might render them unsuitable to work with children.
The Commonwealth makes a broad range of criminal history information available to screening agencies for the purposes of working with children checks, including information about pardoned, quashed and spent convictions.
A pardoned conviction is a conviction which has been set aside by a court because a person was wrongly convicted of the offence. A quashed conviction is also a conviction which has been set aside by a court, but convictions can be quashed for a range of different reasons and in circumstances where a person may have been discharged without conviction, or not found guilty of an offence. A spent conviction is a conviction which is generally over 10 years old and which relates to an offence punishable by no more than 30 months imprisonment.
A person whose conviction is pardoned, quashed or spent is generally no longer required to disclose the fact that they were convicted, and information about these types of convictions is prohibited from being disclosed in most circumstances. As a safeguard, information about pardoned, quashed and spent convictions may only be disclosed for the purposes of working with children checks to persons or bodies (including screening agencies) that have been prescribed in the
Crimes Regulations 1990 (Crimes Regulations). The Minister for Justice’s approval is required before persons or bodies can be prescribed.
The Minister for Justice may only approve the prescription of a person or body if her or she is satisfied that it: (a) is required or permitted under a Commonwealth, State or Territory law to deal with information about people working with children; (b) complies with applicable privacy, human rights and records management laws; (c) complies with principles of natural justice; and (d) has risk assessment frameworks in place and appropriately qualified staff.
In 2011, the Attorney-General’s Department reviewed the provisions in the Crimes Act that enable information about pardoned, quashed and spent convictions to be disclosed for the purposes of working with children checks.
In conducting its review, the Attorney-General’s Department became aware that some prescribed screening agencies in New South Wales have changed names, or been subsumed within other prescribed screening agencies, following the change of government in that State in 2011.
The following screening agencies are currently prescribed in New South Wales by regulation 7A of the Crimes Regulations:
- Commission for Children and Young People
- Department of Education and Training
- Department of Health
- Communities NSW, and
- Catholic Commission for Employment Relations.
To reflect the new names and arrangements of these agencies, schedule 1 amends regulation 7A to prescribe the following persons or bodies in New South Wales:
- Commission for Children and Young People
- Department of Education and Communities
- Department of Health, and
- Catholic Commission for Employment Relations.
This Regulation was prepared in consultation with the New South Wales Commission for Children and Young People, which is the leading agency in conducting working with children checks in
New South Wales.
The Regulation commences the day after it is registered on the Federal Register of Legislative Instruments.
The Regulation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Overview
The Crimes Amendment Regulation 2012 (No. 1) was enacted to address the need for updating the list of entities authorised to receive information about pardoned, quashed, and spent convictions for the purposes of working with children checks. This regulation ensures that the information is disclosed only to those entities that comply with privacy, human rights, and records management laws, and have the necessary frameworks and qualified staff in place. The regulation was introduced by the Minister for Justice and was prepared in consultation with relevant agencies, including the New South Wales Commission for Children and Young People. The primary objective of this regulation is to reflect the changes in the names and arrangements of screening agencies in New South Wales, following the change of government in 2011. This legislative instrument supports the right to privacy and reputation by ensuring that personal information about pardoned, quashed, or spent convictions is disclosed only to authorised entities.
Scope and Application
The Crimes Amendment Regulation 2012 (No. 1) pertains to the regulation of disclosure of information concerning pardoned, quashed, and spent convictions for the purposes of working with children checks in Australia. It applies to those entities authorised to receive such sensitive criminal history information, specifically those that assess the suitability of individuals to engage in child-related work. This includes prescribed screening agencies within the Commonwealth, State, and Territory jurisdictions, which must comply with applicable privacy, human rights, and records management laws, as well as principles of natural justice. The regulation updates the list of authorised entities to reflect any changes in their names or organisational structures, ensuring the accuracy and effectiveness of working with children checks. It extends to the entire Commonwealth and is subject to the Crimes Act 1914, with the Minister for Justice having the authority to prescribe entities based on certain criteria. The regulation does not specify exclusions, exemptions, or thresholds but relies on subordinate instruments to provide detailed operational guidance and requirements.
Key Provisions
The main operative sections of the Crimes Amendment Regulation 2012 (No. 1) (Regulation) pertain to updating the list of persons and bodies that can receive information about certain types of Commonwealth criminal records under the Crimes Act 1914 (section 1). Specifically, Schedule 1 of the Regulation amends regulation 7A of the Crimes Regulations 1990 to reflect the changes in the names and arrangements of screening agencies in New South Wales. The Regulation prescribes the new entities that are authorised to receive information about pardoned, quashed and spent convictions for the purpose of conducting working with children checks. These prescribed entities are the Commission for Children and Young People, the Department of Education and Communities, the Department of Health, and the Catholic Commission for Employment Relations.
The Regulation imposes certain obligations and requirements on the parties or entities it governs. Firstly, it mandates that any person or body that is prescribed under the Regulation must comply with applicable privacy, human rights and records management laws (section 2(b)). This ensures that any information about pardoned, quashed or spent convictions that is disclosed is handled in a manner that respects individuals' rights and adheres to legal standards. Secondly, these prescribed entities must also comply with the principles of natural justice (section 2(c)), which means that they must act fairly and without bias when assessing an individual’s suitability to work with children based on their criminal history. Furthermore, the Regulation requires that the prescribed entities have risk assessment frameworks in place and appropriately qualified staff to effectively carry out the assessments (section 2(d)).
The Regulation also outlines the consequences for breaches of its provisions. While specific offences and penalties are not detailed within the Regulation itself, breaches of the Crimes Act or the Crimes Regulations, which the Regulation amends, may result in civil or criminal penalties. For example, unauthorised disclosure of criminal history information can lead to significant fines or imprisonment under the Crimes Act. The severity of the penalties would depend on the nature and extent of the breach, but in general, unauthorised disclosure of personal information can result in penalties up to a maximum of $210,000 for individuals and $1,050,000 for bodies corporate, as stipulated in the relevant sections of the Crimes Act. These penalties underscore the importance of complying with the Regulation’s requirements to protect the privacy and reputation of individuals whose criminal records are being assessed.