DISCRIMINATION IN EMPLOYMENT ON THE
BASIS OF CRIMINAL
RECORD
Click here to access:
Submission No. 18 - Office of Public
Transport, South Australia
Enquiries to: David Potts
Telephone: 83030855
11 February 2005
Dr Sev Ozdowski OAM
Human Rights Commissioner
Human Rights and Equal Opportunity Commission
GPO Box 5218
SYDNEY NSW 2001
Dear Dr Ozdowski
Discrimination in employment on the basis of criminal record
I refer to your letter dated 13 December 2004 seeking feedback on the Discussion Paper "Discrimination in employment on the basis of criminal record" released in December 2004.
The Passenger Transport Act 1994 (SA) requires a determination on the basis of criminal record in relation to assessing the suitability of a person for accreditation as an operator or driver in the provision of a passenger transport service. Accreditation is essential to be a driver or to operate a passenger transport service in South Australia. Under the legislation it is the Passenger Transport Standards Committee (PTSC) that makes determinations based on criminal records as they relate to accreditation. Decisions of the PTSC may be appealed to the District Court.
The PTSC was established as a statutory committee under the Passenger Transport Act on 1 January 2004. The quorum for any proceedings of the PTSC is three members. The PTSC has the following principle roles -
- to determine the fitness and propriety of people seeking to obtain or renew accreditation as operators or drivers of public passenger vehicles
- to adjudicate in matters related to breaches of the Passenger Transport Act and Regulations
- to deal with applications from the passenger transport industry for age and kilometre limit exemptions and plans of operation relating to public passenger vehicles.
The accreditation system and the fitness and propriety of people providing passenger transport services are at the core of the legislation. The Passenger Transport Act 1994 states that the purpose of accreditation is to attest that the accredited person is considered to be of good repute and in all other respects a fit and proper person. The majority of matters related to the accreditation of operators and drivers of public passenger vehicles fit within prescribed guidelines and standards and can be decided without recourse to the PTSC. Matters that are referred to the PTSC are those that are considered to be outside the normal parameters, require special consideration or an exemption to the prescribed standards or regulations.
Given that passenger transport services involve establishing a system for the safe transport of the public there is a high government and public expectation that relevant checks have been made on the driver and operator including health, qualifications (eg. licence and training) and background. Offences considered for the purposes of accreditation can be diverse including traffic related offences (eg drink driving, speeding and dangerous driving) that are particularly relevant to passenger transport services and major criminal matters, which may reflect how the person acts in a position of trust related to property and other people. The public has a right to expect that it can trust public passenger vehicle operators and drivers to act responsibly, honestly and with integrity.
An obligation has been imposed on an applicant for accreditation to present a National Police Certificate relating to the fact that there are no convictions or, if there are, the extent of the convictions. As an applicant provides the National Police Certificate outlining any criminal record with the application they are aware of the information contained and prepared for it to be considered in the assessment process. An applicant is also required to sign a declaration on an application form regarding his or her previous history and any charges that may be pending.
Under the Mutual Recognition Act (Cth), drivers with accreditation in other States can apply for and be granted with accreditation in SA without the need for a separate criminal record assessment.
There is also a requirement for an accredited person to report to the Minister for Transport within 2 days of the laying of a charge for an offence or the finding by a court that the person has been guilty of an offence. Depending on the nature of the offence there may be action taken with respect to the accreditation (eg. cancellation or suspension).
Various authorities are relied on for the interpretation of "fitness and propriety" for the purposes of the Act. The most commonly referred to in PTSC proceedings and appeal hearings in the District Court of South Australia is in the case of Sobey -v- Commercial and Private Agents Board in which Judge Walters states -
"the issue whether an appellant has shown himself to be a "fit and proper person" within the meaning of Section 16(1) of the Act, is not capable of being stated with any degree of precision. But ..in my opinion, what is meant by that expression is that an applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of the particular licence under the Act, but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further enquiry, as a person to be entrusted with the sort of work which the licence entails.
The burden clearly lay upon the appellant to satisfy the board of his fitness and propriety to hold the licences for which he applied."
The decision to grant or not to grant an accreditation must be made with this responsibility in mind and taking account of the risks involved. It is therefore imperative that a decision is only made when the PTSC is completely satisfied that it has received all relevant information and has examined all of the issues.
Applicants for accreditation who are called to appear before the PTSC are given notice of the hearing and provided with written information on the role of the PTSC, the procedures, how to prepare for the hearing and the appeal process if dissatisfied with the decision of the PTSC.
At the hearing the applicant for accreditation is given the opportunity to present their case and to answer questions about information recorded on the documentation provided, including the National Police Certificate. The applicant is invited to bring character witnesses, written references and any other material to support the application and to seek an adjournment if, at any stage during the hearing, more information is required.
Applicants may be represented by a solicitor, accompanied by a McKenzie Friend and assisted by an interpreter, if required.
Each case is assessed on its individual merit and accreditation may be granted or may have conditions attached that allow the person to operate or drive a public passenger vehicle. However, if during the period of accreditation the person commits an offence and their accreditation is suspended or revoked, there is no right of appeal against that decision.
A decision may be made, in the public interest, to deny accreditation but the decision does not necessarily exclude the person from re-applying at a later date. It is feasible that after a suitable period of time the person is able to demonstrate his or her fitness and propriety sufficiently to be granted accreditation. In this instance, the PTSC again relies on the legal authority in Sobey -v- Commercial and Private Agents Board in which Judge Waters states -
"I cannot imagine anything which is more germane to the question whether a person is a fit and proper person than the matter of his record of previous offences. Any previous breaches of the law, and any propensity towards offending against the law must, in my view, be regarded as of crucial importance. I would not go so far as to say that one criminal offence must necessarily deprive a person of that fitness and propriety which is a pre-requisite for a licence under the Act. But, in the present case, I think the appellant's past conduct exposes an intrinsic defect of character which is incompatible with his being entrusted with a licence, either as a process server or a commercial sub-agent. The moral that he must learn is that he will have to demonstrate a greater respect for the law, before he can expect to obtain a licence under the Act. When a considerable period of time has elapsed from now, past facts might be viewed in the light of the lapse of time and weight might then be properly given to his subsequent good behaviour. In any case, however, the appellant bears the onus under s. 16(1) of the Act of satisfying the Board of the existence of matters qualifying him for a licence."
This precedent may be applied in cases where the applicant has been placed on a bond to be of good behaviour by a court and the bond is still current. The PTSC will hear the applicant's submission and, particularly if the applicant is nearing completion of the bond without further offending, may grant accreditation subject to conditions.
After gaining accreditation, operators and drivers are required by the legislation to inform the Minister within 2 days of the laying of a charge or a conviction by a court to ensure the ongoing integrity of the accreditation system and if necessary matters may be referred to PTSC for consideration.
The systems for considering criminal records have been designed to allow for individual assessment and to provide people with opportunities to work in the passenger transport industry based on reasonable standards and to enable ongoing conduct to be reviewed on a regular basis.
Thank you for the opportunity to participate in this process. I trust the information provided is of assistance in your research into this important issue.
Yours sincerely
Heather Webster
Executive Director
|