DISCRIMINATION IN EMPLOYMENT ON THE
BASIS OF CRIMINAL RECORD

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Submission No. 48 - Land Valuers Licensing Board

Submission received from: Bryan Gardiner, Chairman

Contact Officer: Mr Greg Harvey, Registrar of the Board, Mr Greg Harvey
Tel: 08 9282 0684

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

The Land Valuers Licensing Board has been provided with a copy of the abovementioned discussion paper.

By way of background information, the Board has a statutory responsibility to ensure compliance with the Land Valuers Licensing Act 1978 in Western Australia. This Act requires land valuers to be licensed and one of the Board's functions is to ensure that those who conduct valuations of are fit and proper persons. The Board is pleased to provide comments on the issues (in particular those identified on page 39 of the Report).

The impact of a criminal record on employment prospects

At the time of applying for a licence, each applicant is required to submit a National Police Certificate. Similar and regular checks are made during the currency of a licence. When a Police Certificate identifies a record, the Board will make a judgement on whether the issues identified would directly affect the character of the applicant in terms of their fitness to work in the industry.

Such matters which are taken into consideration include the recency of the offence, its nature and its relevance to their intended employment as a valuer. It is important to note that the decision to grant/not to grant a licence is not made by one person but rather a Board of five persons which provides for a balanced and broad spectrum of views. In addition, if the Board is inclined not to grant a licence, then the applicant will be offered the opportunity to meet with the Board so that both parties understand the situation before the final decision is made. The applicant still has the right to appeal the decision of the Board.

The operation of discrimination law in this area

The Board does not keep statistics on the number of persons who have had a licence declined or cancelled as a direct result of a criminal conviction. However, based on memory, the Board would have declined around four licence applications over the past eight years. The above process ensures that the applicant is provided with every opportunity to present their claim and understand the Board's reasoning. There has not been an appeal of these decisions, hence, the Board cannot draw on any experience in the operation of discrimination laws applicable to this State.

What is understood to constitute a criminal record

The Board would give serious consideration to any conviction related to the Criminal Code or similar. Consideration may also be given to other offences such as repeated driving offences which could be indicative of a person's lack of respect for the law and, therefore, bring into question their fitness to operate in a regulated industry.

The Report notes that records kept by the Police may include such issues as matters awaiting court hearing and matters under investigation. The Board's protocol to give the potential licensee every opportunity to state their case minimises the risk of a decision being based on mis-information.

The practical operation of the inherent requirements exception to the discrimination in employment on the basis of criminal record

Refer to other comments in this letter.

What employees should disclose about their criminal record

As previously mentioned, the Board has a statutory duty to ensure that licensed valuers are of good character. It is, therefore, appropriate that a check of their criminal record be made. Persons with a record which causes concern for the Board will then be given the opportunity to be heard by the Board before a final decision is made. This process allows for a full and open disclosure and discussion on any relevant convictions.

How employers should make decisions about individual employees on the basis of criminal record

The Board is of the view that, under the circumstances, its protocols as outlined above are fair and the decision making process is sound.

Notwithstanding the processes that the Board has in place, it is appreciated that many of the issues identified in the Report are complex and subjective. The Board would, therefore, welcome any guidance which may arise as an outcome of the Report.

If you or your staff have any queries regarding this letter you are welcome to contact the Registrar of the Board, Mr Greg Harvey on 08 9282 0684.

Yours sincerely

Bryan Gardiner
CHAIRMAN

DISCRIMINATION IN EMPLOYMENT ON THE BASIS OF CRIMINAL RECORD