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DISCRIMINATION IN EMPLOYMENT ON THE BASIS OF CRIMINAL RECORD

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Submission No. 45 - Department of Education, Tasmania

Dr Martyn Forrest, Secretary

File: CEN 4917/1

15 February 2005
Dr Sev Ozdowski
Human Rights Commissioner
Human Rights and Equal Opportunity Commission
GPO Box 5218
SYDNEY NSW 2001

Attention: Stephen Duffield

Dear Dr Ozdowski

Discrimination in Employment on the Basis of Criminal Record

Thank you for your letter of 13 December 2004 and the opportunity to provide a response to the Discrimination in Employment on the Bases of Criminal Record discussion paper (December 2004).

Based on existing practices, along with the knowledge and experience gained from the Department's recent review of its good character check processes, the following information is provided for your consideration.

Background

The Department of Education, Tasmania (DoE) is responsible for primary and secondary education in State schools, library and information services, vocational education and training services, administration of the Child Care Act 2001 , assessment and certification of trainees and students, and youth affairs.

Legislation

The DoE currently obtains, through a good character check or safety screening process, a National Criminal History Check for all department employees in State schools and persons providing child care or child care services as authorised by a licence or registration. These employment groups are excluded in Schedule 1 of the Tasmanian Annulled Convictions Act 2003 .

The Tasmanian State Service Commissioner's Direction No. 10/2001 (applicable only to Tasmanian State Agencies), states that, in making a decision as to whether to appoint a person on the basis of criminal history information, the following circumstances are to be considered:

Nature and frequency of offence(s);
Relevance of offence(s) to position;
Age at which offence(s) committed;
How recent was the offence(s);
Degree of rehabilitation. (With the consent of applicant, panel may ascertain if further information is available on attitude and behaviour of applicant);
General character since the offence (eg employment record);
Whether the offence is still a crime

and any other aspects which either the Agency's Human Resources Branch, the Chair of the selection panel or the candidate may deem relevant.

The Tasmanian Teachers Registration Act 2000 requires all teachers to be registered with the Teachers Registration Board ("the Board"), which is an independent statutory body. A person must satisfy the Board that they are of 'good character' before their registration may be approved.

The primary source of information used to determine 'good character' is a person's criminal record, which the Board obtains from Tasmania Police. The Teachers Registration Act 2000 requires that the Board is to take into account any conviction or charge against the person.

If a registered teacher seeks employment in a State school through DoE, they must provide their 'Teacher Registration Number' on their 'Good Character Check Form'. This indicates to DoE that the applicant has already undergone a criminal history check.

The Teachers Registration Act 2000 Section 50(2) states 'In determining whether an applicant is of good character, the Board -

(a) is to take into account any conviction of, or charge made against, the applicant;..'

Any person who operates or provides child care or a child care service in Tasmania must be licensed or registered under the Tasmanian Child Care Act 2001. The Child Care Act 2001 requires that to determine whether an applicant is a fit and proper person to hold the licence applied for, the Secretary of DoE must consider a number of relevant matters in relation to the applicant; the persons involved in the management of the service; the staff and the partner (if applicable) of those people who may have contact with children.

The fit and proper person assessment includes requirements for disclosure and the safety screening process as outlined in the Child Care Standards.

Safety Screening and Good Character Check Processes

A safety screening application includes, but is not limited to, a declaration in relation to any charges or convictions of offences punishable by a period of imprisonment and also whether the applicant has been found guilty of any offences against the Child Care Act 2001 , regulations or Standards or similar in any other State or Territory. In order to work with children, a person must hold a current safety screening clearance.

Safety screening in accordance with the Child Care Act 2001, and the Standards issued by DoE, must be completed every three years. Applicants for safety screening give their permission for DoE to seek information from Tasmania Police, Department of Health and Human Services, and current or past employers. Tasmania Police conduct a National Criminal History Check.

If a person is assessed as suitable to work with children, DoE provides a safety screening certificate, or where a person is working on a child care site in another capacity, a clearance letter.

Persons employed by DoE within the Child Care Unit are required to complete a good character check.

Only the State Service Commissioner can approve a good character check as an essential requirement for a DoE position. Positions that have been approved by the Commissioner include the following in the Essential Requirements section of the statement of duties :

"The Commissioner has determined that the person nominated for this position is to satisfy a good character check before taking up the appointment, promotion or transfer."

Where the Commissioner has approved the requirement for a check a Good Character Check Form must be completed by the relevant employee or applicant for the position. DoE cannot request Tasmania Police to provide a criminal history record without the applicant's written approval.

The completed form is forwarded to Tasmania Police and returned to DoE with certification indicating either no record of conviction or provides an attached a list of convictions in chronological order.

Only DoE's Investigations Unit has access to the Good Character Check Form or the criminal history record. For confidentiality and privacy the criminal history record is not kept on an employee's personal file. The relevant workplace is only informed whether the person has been cleared or not and is not provided with any details relating to a person's application or criminal history record.

An assessment is made of the criminal history record and any other information obtained through the checking process. The generic conviction areas include:

Crimes of Violence
Sex-Related Offences
Serious Drug Offences
Crimes Involving Dishonesty
Serious Traffic Offences

In determining whether a person's Record of Conviction is relevant to their employment with the Department, regard is had to:

nature and frequency of offence(s);
relevance of offence(s) to position;
age at which the offence(s) was committed;
how recent was the offence(s);
degree of rehabilitation;
general character since the offence(s) as related to employment (eg employment record); and
whether the offence is still a crime.

If there are any relevant convictions noted a letter is sent to the applicant requesting further details of the conviction(s). Once the person has responded, the Manager (Investigations) assesses all the available information and makes a decision whether to grant a good character clearance.

A person is not employed until the Good Character Check process is completed and confirmation has been obtained of the applicant's clearance status.

If a person is unwilling to complete a Good Character Check Form, then the process of his or her application for the position ceases

Review Procedures/Options

Grievances and complaints are dealt with promptly, confidentially and investigated impartially in accordance with the principles of procedural fairness and natural justice . At all times the rights of the complainant are respected. A complainant may also seek support and advice from relevant organisations outside DoE for example:

Anti-Discrimination Commission;
Office of the State Service Commissioner;
Human Rights and Equal Opportunity Commission;
Ombudsman;
Union; and/or
Professional association.

The grievance and review processes as provided for in the State Service Act 2000 may also apply in such cases for existing employees. Section 50(1) (b) of the Act enables employees to apply to the State Service Commissioner for a review of any State Service action that relates to his or her employment in the State Service.

The Tasmanian Teachers Registration Act 2000 provides in Section 12 (3) for a right of reply as part of the character determination process (an opportunity to appear before the Board), and in Section 29 (1) for a review of a Board decision in the Administrative Appeals Division of the Magistrates Court .

For further information or elaboration on this submission please contact Justine Griffiths on (03) 6233 7088 or email justine.griffiths@education.tas.gov.au .

Yours sincerely

Dr Martyn Forrest
Secretary