DISCRIMINATION IN EMPLOYMENT ON THE BASIS OF CRIMINAL RECORD
Click here to access:
- Summary of the Criminal Record Discussion Paper
- Criminal Record Discussion Paper
- Index of Submissions Received
- Human Rights Homepage
Submission No. 55 - Department of Employment, Education and Training (DEET)
Dr Sev Ozdowski OAM |
People & Learning Division |
|---|
Our Reference: DOC2005/002305
File: 2004/1278
Dear Dr Ozdowski
RE: DISCRIMINATION IN EMPLOYMENT ON THE BASIS OF CRIMINAL RECORD
Thank you for the opportunity to provide a Department of Employment, Education and Training (DEET) submission in response to the discussion paper on the 'Discrimination in employment on the basis of Criminal Record'. The Department submits the following commentary and information gleaned from a selective group of DEET senior staff for your consideration.
Legal Services
Historically, prior to the commencement of the Teacher Registration Act (NT) in 2004 (with some registration provisions commencing in 2005), the position of the department in relation to discriminating on the basis of irrelevant criminal record was governed by the Anti-Discrimination Act (NT) and the Criminal Records (Spent Convictions) Act (NT) as follows.
The Anti-Discrimination Act (NT) section 37 allows an employer to take an otherwise irrelevant criminal record into account if dealing with an employee or potential employee where the employment involves the care, supervision or instruction of vulnerable persons, which includes school students, provided the discrimination is reasonably necessary to protect such vulnerable persons and having regard to all the circumstances of the criminal conduct.
The Criminal Records (Spent Convictions) Act (NT) section 15A means that with respect to applying for employment or appointment involving the care, supervision or instruction of vulnerable person, which includes school students, a criminal record cannot be spent and must be disclosed in relation to such an application for such work.
The combined effect of the above two pieces of legislation was that a potential teaching employee was obliged to reveal any criminal history to the department and then the employer could discriminate against the potential employee in appropriate circumstances after considering all the relevant matters according to the Anti-Discrimination Act.
However, the position today concerning employment of teachers is one where issues of fitness to teach are considered by the Teachers' Registration Board. If a teacher is registered, then the department will consider such a person fit for employment.
Recruitment & Retention Unit
In all Northern Territory schools, all people applying for positions within DEET i.e.: temporary or permanent vacancies, including transfers, students and volunteers require the completion of a Criminal History Check. Only applicants with relevant criminal records are not to be considered for appointment.
Relevant criminal record with regard to all employees coming into unsupervised contact with children includes offences of a sexual or violent nature such as sexual assault, paedophilia, family violence orders, grievous bodily harm, armed robbery and serious drug offences.
All applicants will be made aware that having a criminal record will not automatically exclude them from employment.
A confirmed offer of employment can only be made after all selection criteria are met. Where a police clearance is mandatory, these must be obtained by the DEET directly (or for teachers indirectly through the Teacher Registration Board) and cleared through the Department prior to any confirmed offer.
Managers/Principals are responsible for ensuring the confidentiality of the police clearance and that the information provided is not passed on to a third party. NB It is a Criminal Act to do so.
Both internal and external applicants to the Northern Territory Public Service may appeal a decision not to offer employment, to the Anti Discrimination Commission on the basis that their criminal record is irrelevant.
Teacher Registration Board
The Teacher Registration Board of the Northern Territory was established in September 2004 and is in the process of registering every teacher in the Northern Territory . As from 1 February 2005 no person can legally accept employment, or be employed, in a Northern Territory school unless granted registration by the Board.
The Teacher registration (Northern Territory) Act 2004, states in Section 32 (1)(d) that the application for registration must 'be accompanied by an authorisation for the Board to obtain a criminal history check' and in Section 13 (1)(a) the Board must 'In determining whether a person who is an applicant for registration, is of good character, the Board must obtain a criminal history check in relation to the person and take into account any finding of guilt or charge made against him or her'.
In determining relevance or otherwise of a criminal history for the purposes of registration, the Board is governed by the Anti-Discrimination Act (NT) and the Criminal Records (Spent Convictions) Act (NT). As the granting of registration indicates to a potential employer a person's suitability for employment with children, criminal histories that include sexual crimes, crimes of violence or fraud are viewed as a potential threat to children's welfare and may result in discrimination.
The Board is currently developing policy and procedures that ensure the protection of privacy, the application of natural justice and the protection of children.
Yours sincerely,
CLAIRE KILGARIFF
DIRECTOR
February 2005