Discussion with representatives of the Queensland police service.
Please find attached recent correspondence between Organisation Intersex International and Assistant Commissioner Paul Stewart.
There are a couple of things I seek clarity on:
- Is an agency able to request a police check without the individual in question knowing?
- Are third parties able to request security checks on an individual and be provided with the results of that check in their own right?
I am concerned that if the results of the check disclose private information on an individual which that person might like to remain private that information could be come public through the third party applicant. What mechanism do you have for preventing that?.
My example is this:
An intersex person who has rejected their birth assignment and has had primary documents changed to reflect the mistaken assignment at the time of birth might wish to keep knowledge of their apparent change of sex to themselves.
(In NSW and Victoria intersex are allowed to change their birth certificates if they can produce evidence they are intersex. Please see our website for a definition of what intersex is.)
If that person has committed a crime a prospective employer might consider that the person is still suitable for employment, however the “sex” history of that person might result in the employer using the crime as a reason not to employ when in fact their decision was informed by the subject’s intersex. There is also the possibility that such information might leak to the wider community through less secure agencies than the police force that provides the clearance.
Intersex is more common than might be thought and we are subjected to very strongly held prejudices and vilification when our circumstances are known.
I hope I have explained the dilemma suitably.
Reply from Greg Denning, Assistant Manager, Information Management Branch, Queensland Police Service:
In response to your further questions addressed to Assistant Commissioner Paul Stewart I can provide the following information:
The Queensland Police Service (QPS) conducts police checks for Queensland government agencies for employment screening or government authorities, permits, etc.. This involves a national criminal history check. Before conducting a national criminal history check, the person’s written consent must be obtained. This is a condition of access to national police information.
This consent involves the person giving permission for a criminal history check after being informed what information will be disclosed, the purpose of disclosure, and by whom and to whom it is to be disclosed. This must be an express consent, and reliance cannot be made on simply informing the person that a check will be done.
This means that a person is aware of, and must consent to, the check before it is conducted.
As previously mentioned, any criminal history or Police Certificate provided by the QPS does not contain reference to the sex of the person. The confidentiality, or use made, of any criminal history provided to a government agency under legislation is governed by that legislation. Apart from these provisions, the Queensland government has enacted the Information Privacy Act 2009 that places obligations on agencies to handle, collect, store, secure, use and disclose personal information in accordance with the privacy principles. It also creates obligations in relation to allowing individuals to access and amend their own personal information.
The Office of the Information Commissioner is Queensland’s independent body established under the Right to Information Act 2009 to promote access to government-held information; and protect people’s personal information held by government under the Information Privacy Act .
The Office is responsible for providing information and assistance to Queensland government agencies and the community to support agencies to comply with these laws, and for monitoring and reporting on the performance of government agencies.
The Office also reviews specific agency decisions under these laws regarding access and amendment applications, deals with privacy complaints and makes certain decisions, including whether an agency’s privacy obligations can be waived or modified in the public interest.
That Office can be contacted on –
telephone: 07 3234 7373 fax: 07 3005 7150 email: firstname.lastname@example.org
or postal address Office of the Information Commissioner PO Box 10143 Adelaide Street BRISBANE QLD 4000
I trust this information is of assistance.
Greg Denning A/Manager
Information Management Branch Queensland Police Service
OII Australia’s reply to Greg Denning’s email:
Thanks for the clarification.
I feel assured that the person to whom the check applies has to be fully cognizant of the kind of information that is being disclosed and where that information will end up.
This falls a little short of our hope that the information would be presented to the individual first so that they can then decide if they want to proceed with it being passed on further. I understand that an individual could apply to find out what kinds of information are held on them under the Information Privacy Act. We will contact the OIC as you have suggested.
Our sensitivity on this issue stems from the hugely prejudicial view held by many people against those who seem to have changed sex or who have unusual sex anatomies such as intersex. We are of the opinion that an intersex history might be viewed even less favourably than a criminal history.
Again thank you very much for this clarification and your time in responding to our queries.