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senate vote 2023-08-07#3
Edited by
mackay staff
on
2023-12-29 08:50:04
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Title
Bills — National Security Legislation Amendment (Comprehensive Review and Other Measures No. 2) Bill 2023; in Committee- National Security Legislation Amendment (Comprehensive Review and Other Measures No. 2) Bill 2023 - in Committee - Spent convictions
Description
<p class="speaker">David Shoebridge</p><p>I move amendment (1) on sheet 2055:</p>-
- The majority voted in favour of a [motion](https://www.openaustralia.org.au/senate/?gid=2023-08-07.65.3) "*that part 4 of schedule 1 stand as printed.*" In other words, they voted to keep that part unchanged. This vote took place after NSW Senator [David Shoebridge](https://theyvoteforyou.org.au/people/senate/nsw/david_shoebridge) (Greens) introduced a [motion](https://www.openaustralia.org.au/senate/?gid=2023-08-07.60.1) to oppose that part.
- ### Why did the Greens Party oppose this part?
- [Part 4 of Schedule 1](https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;db=LEGISLATION;id=legislation%2Fbills%2Fr7012_first-reps%2F0001;query=Id%3A%22legislation%2Fbills%2Fr7012_first-reps%2F0000%22;rec=0#7d5ac8eca0bb4a418288f90eeaee447e) relates to spent convictions. According to the [bills digest](https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd2223a/23bd074):
- > *Spent convictions are those criminal convictions which may no longer be disclosed on a person’s record because a period of time has elapsed (for example, 10 years) where no further reoffending has occurred. There are some exceptions to the ‘automatic spending of convictions’. For example, some sexual assault offences may never be spent and are thus always disclosable. Each state and territory (as well as the Commonwealth) has its own spent convictions legislation (or ‘scheme’) that defines a spent conviction and sets out the exemptions that apply.*
- Senator Shoebridge [explained that](https://www.openaustralia.org.au/senate/?gid=2023-08-07.60.1) the Greens seek:
- > *to remove from the bill the provisions that give expanded power to ASIO to use, record and disclose spent convictions information. ... The purpose of the spent convictions regime is to allow people to get on with their lives after they've been convicted of a more minor offence so that, after 10 years, that offence doesn't keep coming back and haunting them.*
<p class="italic">(1) Schedule 1, Part 4, page 8 (lines 1 to 25), to be opposed.</p><p>This amendment by the Greens seeks to remove from the bill the provisions that give expanded power to ASIO to use, record and disclose spent convictions information. As I'm sure the chamber is aware, a spent conviction is a conviction where there have been at least 10 years since the date of the conviction in circumstances where the individual has not been sentenced to imprisonment or was not sentenced to imprisonment for a period of greater than 30 months. I think the equivalent provision for a minor is five years. The purpose of the spent convictions regime is to allow people to get on with their lives after they've been convicted of a more minor offence so that, after 10 years, that offence doesn't keep coming back and haunting them. Of course, the spent convictions provisions only apply where there has been no further offending.</p><p>Where someone has breached the law, been taken before a court and had either a non-custodial or modest custodial sentence imposed, our law has always given people a bit of a second chance, after a period of 10 years, to not have it continually raised with them when they're seeking a job, when they are seeking to travel and when they're seeking to get on with life. Of course, over time, there have been a variety of exemptions to that so that, for certain national police record searches, spent convictions can continue to be included in a conviction search. That is for more sensitive occupations, in particular. But the broad position is that, after 10 years for those relatively minor offences, ASIO and other security agencies can't keep accessing and sharing that information. In particular, it's the sharing of information that this bill seeks to allow. It seeks to allow ASIO to continue to share information of spent convictions.</p><p>This matter went to the Human Rights Joint Committee, and the Human Rights Joint Committee gave this as their view:</p><p class="italic">1.98 The committee notes that permitting ASIO to use, file or record and disclose spent convictions information in the exercise of its functions or the performance of its functions, limits the right to privacy, particularly as it is not clear to whom ASIO may disclose personal information about spent convictions. The committee considers the measure seeks to achieve the legitimate objective of allowing ASIO access to the information necessary to perform its functions, and to protect Australia from security threats. In considering the proportionality of the measure, the committee considers it would have been useful had the statement of compatibility identified any applicable safeguards. The committee appreciates this information may not be available on national security grounds, however, without information as to whom the spent conviction information may be disclosed, it is not possible for the committee to fully assess the compatibility of this measure with the right to privacy.</p><p class="italic">1.99 The committee draws this matter to the attention of … the Parliament.</p><p>So through you, Chair, I asked the minister: what are the safeguards? The Human Rights Joint Committee has said that they can't find any. The EM contains none. The bill contains none. What are the safeguards on spent convictions?</p> <p class="speaker">Murray Watt</p><p>In responding to Senator Shoebridge, I also advise the chamber that the government will not be supporting the Greens amendment. The Commonwealth's Spent Convictions Scheme aims to prevent discrimination on the basis of previous convictions by limiting the use and disclosure of older, less serious convictions and findings of guilt. Under the scheme, certain agencies have exemptions which allow them to use spent conviction information in the performance of their functions. Excluding ASIO from the Spent Convictions Scheme will allow ASIO to use, record and disclose spent convictions information to better perform its functions and exercise its powers, including cooperating with law enforcement. It will also rectify an existing discrepancy whereby law enforcement agencies are able to use, record and disclose spent convictions information for investigations or the prevention of crime while ASIO is prohibited from doing the same.</p> <p class="speaker">James Paterson</p><p>I rise to advise that the coalition will also be opposing this Greens amendment. It is a recommendation of Dennis Richardson which the former government has accepted, as has this government. I think it is self-evidently easy to understand how ASIO may need to have access to this information, to use this information and to share this information. To give just one hypothetical example for the benefit of the chamber, ASIO now has centralised responsibility for top-secret security clearances. Wouldn't it be obvious why ASIO might need access to and might need to share information on someone applying for a top-secret security clearance who has a conviction which might be spent but nonetheless relevant in the granting of a TS security clearance and, therefore, to a job in a highly sensitive role in the Commonwealth?</p> <p class="speaker">David Shoebridge</p><p>There is already a raft of individual exemptions that allow for the sharing of spent conviction information in circumstances like that. This is a very open—indeed, an entirely open—exemption. I asked for some clarity from the government about what the guidelines are, what limits are proposed on who ASIO can share this information with and the circumstances in which they can share the information, and I didn't hear any limitations. It just seems to me that we hope and pray that the security apparatus, ASIO, will act appropriately. Is that the guidelines? Is that the limit? Is it just that it's up to ASIO?</p> <p class="speaker">Murray Watt</p><p>As I suspect Senator Shoebridge is probably aware, the minister's guidelines for ASIO require ASIO to do things proportionally and reasonably, and that is a legal requirement on ASIO officials. That provides the safeguard to prevent abuse, because abuse of these powers would not be proportional or reasonable, which is what ASIO is required to do under the minister's guidelines.</p> <p class="speaker">James Paterson</p><p>To assist the minister in relation to this—this is an important matter—the IGIS would have oversight of the use of this power, as with any other powers that ASIO has. IGIS is an incredibly powerful oversight mechanism and has the power of a standing royal commission. It can go at any time to an intelligence agency, demand access to any document or any record created by ASIO or any other intelligence agency and very closely scrutinise their conduct.</p> <p class="speaker">Jess Walsh</p><p>The question is that part 4 of schedule 1 stand as printed.</p><p></p><p></p> -
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