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Acknowledgements

DISCRIMINATION IN EMPLOYMENT ON THE
BASIS OF CRIMINAL RECORD

Click here to access:

Submission No. 13 - Ministry of Transport, New South Wales

Attachment: Procedures for dealing with applications for driver authorisation and operator accreditation - recognition of status based partly on criminal record checks

Legal obligation of the Ministry

The Passenger Transport Act 1990 imposes an obligation on the Ministry of Transport to authorise drivers and accredit operators before they are allowed to provide public passenger services. The Act provides that the purpose of authorisation and accreditation is, among other things, to attest that the authorised or accredited person is of good repute and in all other respects a fit and proper person to drive or operate a public passenger vehicle.

In carrying out the obligation, the Ministry must consider the 'reasonable expectations' of the public so as not to undermine confidence in the authorisation and accreditation systems.

What does the Ministry do in assessing an application

Checking of criminal history records is one of the many ways the Ministry assesses a person's fit and proper status. Other measures include good reference checks, driving history checks and medical fitness checks. The written consent from applicants to allow the Ministry to carry out criminal history checks is obtained when they fill out the authorisation or accreditation application forms.

The Ministry obtains criminal history records from the Police Services across the country. The released records contain no spent convictions and no proven offences that have no convictions recorded. Hence, applicants are not discriminated against in any way because of spent convictions. However, if applicants disclosed the information themselves, the Ministry will conduct checks for verification purposes.

Basis of decisions of assessment officers

The Ministry provides relevant training to officers who conduct initial application assessment and those who make the final decisions. Interviewing technique is included in the training.

All decisions are based on procedural fairness, natural justice and each case is considered on its merits. Factors for consideration are: age of the applicant at the time of the offence, circumstances surrounding the criminal case and his/her recent behaviour records as given by their referees or employers.

Owing to the inherent activities that are expected to be carried out by drivers and operators, assessment of a person's fit and proper status for the two occupations is different. For example, drivers have contact with passengers, so the Ministry therefore views offences of personal assault more seriously. Deception offences would carry heavier weight in assessing fitness to become an operator because of the management role involved.

Applicants are advised of avenue of review

All applicants are provided with written advice of the results of their applications. If the Ministry is doubtful about the suitability of an applicant based on criminal records, he/she is given the opportunity to state their case personally to the assessment officers, detailing the circumstances of the offence. The availability of internal reviews and appeal to the Administrative Decisions Tribunal is made known to applicants in case he/she is not satisfied with the Ministry's decision.

Clarification of a case quoted in the discussion paper

At page 24 of the discussion paper a reference was made to an Administrative Decisions Tribunal case concerning Mr Z and the Director-General of the Ministry. It must be mentioned that the decision to restore the driver authority of Mr Z to operate long distance and tourist buses was set aside in a subsequent appeal by the Director-General (Director-General, Department of Transport v Z (No. 2) (GD) [2002] NSWADTAP 37).

Grounds for the decision are:

  • Not fit to be entrusted with an authority
  • Driving history is less than satisfactory
  • Inability to acknowledge his guilt for the crimes
  • Dishonest explanation
  • A predilection to blame others for the difficulties that he encounters.
 

© Human Rights and Equal Opportunity Commission. Last updated 4 May 2005.
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