Review of Subdivision A of Division 6 of Part VIIC of the Crimes Act 1914 — the working with children exclusion

9 July 2013

Mr Anthony Coles

Assistant Secretary
Criminal Law and Law Enforcement Branch
Attorney-General’s Department
3-5 National Circuit
BARTON ACT 2600

Dear Mr Coles

Review of Subdivision A of Division 6 of Part VIIC of the Crimes Act 1914 — the working with children exclusion

Thank you for providing the Office of the Australian Information Commissioner (OAIC) the opportunity to comment on the operation of the provisions in Subdivision A of Division 6 of Part VIIC of the Crimes Act 1914 (the Crimes Act) for the purpose of the review of those provisions by the Attorney-General, as required by section 85ZZGG of that Act. The OAIC understands that those provisions enable a person or body (where they are prescribed by the Regulations) who is assessing an individual’s suitability to work with children to obtain, disclose and use information about that individual’s pardoned, quashed and spent convictions.

The OAIC notes that it has not received any complaints under s85ZZA of the Crimes Act about the operation of the provisions contained in Subdivision A since the first review, conducted by the Attorney-General in 2011 (the 2011 Review). The OAIC is not in a position to comment on the two remaining questions posed by your letter of 20 June 2013.

In participating in the 2011 Review, the OAIC made a number of recommendations intended to strengthen the privacy framework supporting the exclusion contained in Subdivision A. The OAIC notes that the Attorney-General’s Department (the Department) responded to the OAIC’s concerns in the Final Report — Review of the operation of Subdivision A of Division 6 of Part VIIC of the Crimes Act 1914 (the 2011 Report).

Noting the Department’s responses to the OAIC’s observations in 2011, and in the absence of any complaints made in relation to the operation of Subdivision A to the OAIC, the OAIC has no evidence that would suggest the exclusion in subdivision A is not operating effectively.

The OAIC is also aware that the Commonwealth, States and Territories are currently negotiating an Inter-Governmental Agreement (IGA) regarding the Exchange of Criminal History Information for People Working with Children. The OAIC notes the requirements set out in the draft IGA for agencies to operate within applicable Commonwealth and State and Territory privacy legislation. The OAIC welcomes this approach. However, the OAIC also notes that the explanatory notes for privacy legislation refer to the Information Privacy Principles contained within the Privacy Act 1988 (Privacy Act).

On 12 March 2014, amendments to the Privacy Act will commence, as introduced by the Privacy Amendment (Enhancing Privacy Protection) Act 2012. The amended Privacy Act will include a set of new, harmonised, privacy principles for both the public and private sector, called the Australian Privacy Principles (APPs). These new principles will replace the existing Information Privacy Principles (IPPs) that currently apply to the public sector and the National Privacy Principles (NPPs) that currently apply to the private sector. Information on the changes to the Privacy Act can be found at http://www.oaic.gov.au/privacy/privacy-act/privacy-law-reform. The draft IGA may wish to consider these amendments.

Yours sincerely

Timothy Pilgrim
Australian Privacy Commissioner

9 July 2013

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