DISCRIMINATION IN EMPLOYMENT ON THE
BASIS OF CRIMINAL
RECORD
Click here to access:
- Summary of the Criminal Record Discussion Paper
- Criminal Record Discussion Paper
- Index of Submissions Received
- Human Rights Homepage
Submission No. 10 - Department of Corrective Services, Queensland
Submission provided by: F P Rockett, Director-Gseneral
- See Also - Attachment:
Department of Corrective Services Procedure - Recruitment and Selection
in
PDF
Format.
Dr Sev Ozdowski OAM
Human Rights Commissioner
Human Rights and Equal Opportunities Commission
GPO Box 5218
SYDNEY NSW 2001
Dear Dr Ozdowski
Thank you for your letter dated 13 December 2004 in which you invited the Department of Corrective Services to make a contribution to discussion on discrimination in employment on the basis of criminal record.
Although the discussion paper prepared by the Human Rights and Equal Opportunities Commission sets out a series of questions, it is more appropriate that the Department sets out its legislation and position on the need to obtain information about criminal histories of potential employees.
Legislation
Section 3 of the Corrective Services Act 2000 (the Act) states that:
(1) The purpose of corrective services in community safety and crime prevention through the humane containment, supervision and rehabilitation of offenders.
With this legislative imperative, the Department must ensure that all decisions are made with the aim of enhancing community safety and dealing with offenders in humane way, with a view to rehabilitation. To achieve this purpose it is necessary to ensure staff of the Department are of the highest integrity.
Criminal history checking can be undertaken under section 244 of the Act, which states:
(1) The chief executive may ask the commissioner to give the chief executive, for use under this Act and the Penalties and Sentences Act 1992 , a report about the criminal history of -
(a) an offender; or
(b) a person performing a function under this Act; or
(c) a visitor to a corrective services facility.(2) The commissioner must give the chief executive a written report about the criminal history that -
(a) is in the commissioner's possession; or
(b) the commissioner can access through arrangements with the police service of another state..
(4) The information in the report may include a reference to, or disclosure of, a conviction referred to in the Criminal Law (Rehabilitation of Offenders) Act 1986, section 6.
(5) In this section -
"criminal history" of a person means -
(a) the offences of which the person has been convicted; or
(b) the court briefs for the offences.
Section 9A of the Criminal Law (Rehabilitation of Offenders) Act 1986 requires that persons applying for a position in the Department, as a corrective services officer, must disclose contraventions of or failures to comply with any provisions of law, whether committed in Queensland or elsewhere. Section 12 provides a penalty for non-compliance. The Department is able to request this information from the Commissioner of Police [s 9A(2)].
The Department must also have regard to Part 9A of the Public Service Act 1996 and relevant directives issued in relation to this Part .
Processes
The Departmental procedure Employment of Individuals with Criminal Convictions sets out the process for requesting criminal history checks for prospective employees. The procedure does not provide any guidance as to what is to be taken into account in determining whether or not to grant the waiver referred to in the procedure where a criminal history has been identified.
The Department is in the process of redrafting this procedure. The amended procedure will include detailed guidance about what effect criminal history is to have on the employment of an individual. It is intended that the procedure will include, at a minimum, natural justice processes, consideration of the nature and age of the offence, the circumstances of the offence, and the relevance of the offence to the position applied for.
The corrections environment
Given the nature of corrections and the legislative imperatives on the Department, staff of the Department are required to undergo a criminal history check as they are engaged to perform a function under the Act and also may be required to work at or visit corrective services facilities as part of their duties.
Given the level of importance and public interest considerations attached to the Department's work, and the associated expectation that officers of the Department should be beyond reproach, a high standard of integrity is an inherent requirement of any position within the correctional environment. This is particularly so for corrective services officers engaged in direct contact with offenders. This not only assists the Department in maintaining the security and good order of correctional facilities, but it also protects the safety and well being of both offenders and staff, and makes a significant contribution towards the Government's priority of ensuring community safety. The thorough security vetting of prospective employees, through criminal history checking, is a vital part of this process.
Other departmental staff will have access to information about offenders, offender management, and departmental procedures which, in some cases, are necessarily confidential for the security and good order of corrective services facilities. Certain staff will also have access to intelligence information or information about victims.
The existence of a criminal history does not necessarily mean that a person will not be employed by the Department. Regard will be had to all the details and circumstances of the offence, though the Department takes drug offences very seriously, particularly for those applying for positions in custodial settings. As noted above, the new procedure will document the matters to be considered by the Department in decision making about employing a person with a criminal history.
I trust this information has been of assistance. I look forward to reading the results of the Commission's research.
Yours sincerely
F P Rockett
Director-General
*Encl
Ref: F/04/02481