DISCRIMINATION IN EMPLOYMENT ON THE
BASIS OF CRIMINAL
RECORD
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Submission No. 41 - Teachers Registration Board of South Australia
Level 6, 70 Pirie Street
Adelaide SA 5000
Phone: (08) 8226 2666
Fax:
(08) 8226 2667
Web Site: http://www.trb.sa.edu.au
Email: info@trb.sa.edu.au
21 February 2005
Mr Stephen Duffield
Director, Human Rights Unit
GPO Box 5218
SYDNEY NSW 2001
Dear Mr Duffield,
Comments to Discussion Paper 2004, Discrimination in Employment on the Basis of Criminal Record
The following comments are from the perspective of a professional registration and or licensing function pursuant to legislative requirements.
The Teachers Registration Board is an independent statutory authority responsible for the registration of teachers in South Australia. The Education Act, 1972, Part IV Section 60 states:
'A function of the Board is to establish, maintain and operate a system of registration of teachers with a view to safeguarding the public interest in pre-school, primary and secondary education by ensuring that it is undertaken only by competent persons.'
A person on application must prove to the satisfaction of the Board they are fit and proper to be registered. Since 1997, this has included consenting to a criminal record check.
Amongst other matters, applicants are specifically asked whether they have every been found guilty (even if a conviction was not recorded) or convicted of a criminal offence. If the answer is 'yes' they need to provide in a sealed envelope details/circumstances of the offence/s. An application is not processed unless the relevant questions have been completed under Statutory Declaration.
Failure to answer questions truthfully and or declare previous convictions to the best of the applicant's knowledge would be regarded as dishonest and lacking in integrity. Several cases have been referred to the Board when it is found a person has recordings against their name but has not declared these matters. Two matters involved child related offences. Others have involved serious dishonest conduct.
There is currently no requirement for teachers to undertake a criminal record check on renewal of registration, however this will change on 31 March 2005 with the proclamation of the Teachers Registration and Standards Act 2004.
The Teachers Registration Board is an accredited third party CrimTrac agency. The vast majority of checks are processed at an administrative level. Only matters that raise serious concern after a full investigation has taken place are referred to the Board to determine whether or not a formal Inquiry should take place.
All matters are considered on an individual, case by case basis and are assessed, taking into account all relevant circumstances. If further information is required, the Registrar or Investigations Officers will contact the applicant and either request a written statement or arrange an interview to discuss the matter.
There is no specific list of offences which would exclude an applicant, however given the registration/licence is to teach children, a high level of integrity, honesty and professional teaching standards apply.
Offences that may result in the penalty of imprisonment and offences involving sexual or indecent behaviour, dishonesty, illicit drugs and violence are of particular concern. There is currently no explicit authority for the Teachers Registration Board to release information. The following aspects are widely published and taken into account when assessing a criminal record.
- Child protection implications, age and vulnerability
- Relevance in a school teaching environment
- The gravity and nature of convictions
- Circumstances surrounding the offence(s), whether alcohol, drugs or a weapon was involved
- The harm to any victim including injury or loss
- Adverse impact on the teaching profession
- Total criminal history
- Severity of sentence imposed
- Length of time since offence, any rehabilitation
- Age at time of offence(s) e.g. adult or juvenile
- Evidence of the applicant's good character since offence committed
- Whether offence has been decriminalised
- Whether found guilty 'without conviction'
- Whether penalty restricted only to a fine
- Personal circumstances at the time of offending
These have been developed over many years drawing on experience and expertise and consultation with a range of stakeholders.
South Australia Police release information in line with Spent Conviction legislation in other states unless deemed in the public interest especially in relation to child protection issues.
Since 1997, over 11,600 criminal record checks have been completed. Of these only several matters have been eventually referred to the Board to determine whether a formal Inquiry should take place. Registration can only be refused or cancelled after the Board in its quasi-judicial capacity has heard the matter. A person has a right of appeal to the District Court.
The new Teachers Registration and Standards Act 2004 will not only provide for the retrospective criminal record check of all teachers (36,000 approximately) on the Register but will require a person to consent to a criminal record check on application and renewal (every 3 years).
The Act significantly enhances the Board's role and responsibilities in child protection and requirements relating to professional standards. Teachers, employers and the Board have specific reporting obligations in matters relating to the conduct of teachers. The Commissioner of Police and Department for Public Prosecutions have reporting obligations in respect to charges or convictions.
A condition of every registration will be that if a person is charged[1] or convicted of an offence of a kind specified in the condition,[2] that person must notify the Board in writing within 14 days of the charge or conviction and give details/circumstances of the matter. The Registrar is required to notify persons and authorities specified in the Act of any matters that raise serious concerns.
The assessment of criminal record checks in relation to registration is taken very seriously and can be a difficult and complex area.
Please contact me on phone 8226 5983 if you require further information or clarification. I will be most interested in receiving the outcomes of the review.
Yours sincerely
Wendy Hastings
REGISTRAR
1. 'charged' is defined as: a complaint or information filed with any court
2. 'an offence of a kind specified in the condition' is defined as: any offence for which imprisonment is a penalty or any offence which involves dishonest conduct or sexual misconduct or indecent behaviour or illicit drugs