Human Rights and Equal Opportunity Commission Website: Human Rights

DISCRIMINATION IN EMPLOYMENT ON THE
BASIS OF CRIMINAL RECORD

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Submission No. 58 - Commission For Children And Young People and Child Guardian, Queensland

What impact might a criminal record have in the area of employment?

As a general introduction to this response to the discussion paper, the following section describes the Commission's working with children check. In Queensland, people wishing to work with children under 18 years of age in particular businesses or categories of paid or voluntary employment must apply for a blue card and submit to the Commission's working with children check/employment screening process. Discrimination on the basis of criminal history must be distinguished from targeted screening systems in particular types of employment, which are designed to ensure that the best interests of children are paramount.

Schedule 1 of the Commission for Children and Young People and Child Guardian Act 2000 (the Act) lists the areas of regulated employment and businesses for the working with children check. All volunteers and certain paid employees who work with children or young people in the following categories of employment must apply for a blue card:

Residential facilities;
School boarding houses;
Schools - employees other than teachers including non-teaching staff;
Childcare;
Churches, clubs and associations providing services mainly directed towards or involving children;
Counselling and support services;
Private teaching, coaching or tutoring;
Education programs conducted outside of schools;
Child accommodation services, including homestays;
Religious representatives;
Sport and active recreation;
Emergency services cadet programs; and
School crossing supervisors.

A person carrying on the following regulated businesses must also apply for a blue card:

Counselling and support services;
Private teaching, coaching or tutoring;
Childcare
Education programs conducted outside of schools;
Religious representatives;
Child accommodation services, including homestays;
Providers of recreational activities eg sporting camps and programs; Operators of hostels for children other than residential facilities.

As a result of a 2004 review of the working with children check the Act was amended to expand the scope of the blue card system by widening the categories of regulated employment and business requiring a blue card. Volunteers are also now required to hold a blue card before they begin working with children in any area of regulated employment.

If a person's application to work with children or young people is approved, a positive notice and a 'blue card' are issued, allowing that person to work or carry on a business in certain child-related fields. If the application is not approved, a negative notice will be issued which prohibits that person from working in particular categories of employment or carrying on particular categories of business. The purpose of these checks is to ensure persons employed in certain child-related employment or who carry on certain child-related businesses (section 95 of the Act) undergo screening.

The working with children check involves the examination of a person's criminal, including charges and convictions. Relevant police information is sought from the Queensland Police Service and other Police Services in Australia for the purposes of the check. Under the Act, the Commissioner also has the power to consider relevant disciplinary information held by certain professional organisations for teachers, child care service providers, foster carers, nurses, midwives and certain health practitioners. Information from police investigations into allegations of serious child-related sexual offences will also be taken into account, even if no charges were laid because the child was unwilling or unable to proceed. These expanded checks are a result of the recent amendments to the Act.

Where a person has been convicted of a serious offence (other than an excluding offence), a negative notice will be issued unless the Commissioner is satisfied that their case is an exceptional one in which it would not harm the best interests of children to issue a blue card.

Where a person has not been convicted of any offence but has been charged with an offence, a positive notice will be issued unless the Commissioner is satisfied that their case is an exceptional one in which it would not be in the best interests of children to issue a blue card.

Before issuing a negative notice, however, the Act requires that the Commissioner must advise the applicant of the proposed decision and invite submissions in relation to his or her criminal history and/or suitability for child-related employment. The Commissioner must then consider the applicant's submissions before finally determining whether a negative notice should be issued.

When assessing a person's criminal history, the Commissioner considers:

whether the offence is a conviction or a charge;
whether the offence is a serious offence (defined by the Act);
when the offence was committed or alleged to have been committed;
the nature of the offence, and its relevance to child-related employment;
in the case of a conviction, the penalty imposed by the court and any reasons given if the court made no imprisonment order or no order disqualifying the person from holding or applying for a blue card, and
any other relevant information relating to the offence or alleged offence.

Where a person has been convicted of an excluding offence they will automatically be excluded from holding a blue card if:

they were sentenced to imprisonment for the offence, or
the judge made a disqualification order preventing them from holding a blue card.

In these cases, the Commission is required to issue a negative notice to the person and there is no right of appeal or review from this decision. The person is banned for life from holding or applying for a blue card.

The Commission also has the power to suspend a person's blue card if they have been charged with serious child-related sexual offences, or certain child pornography offences. The person is prohibited from working with children and young people until their status as a blue card holder is reviewed and the suspension cancelled.

2(d) What special difficulties face juveniles with criminal records?

Possession of a criminal record has the potential to impact on a juvenile's entire working life. Juveniles with criminal records may find it difficult to obtain employment and access certain training programs, as do other individuals with criminal records. However, older individuals (even those with a criminal record) will potentially have previous work experience to support any job applications. A juvenile who obtained a criminal record whilst at high school may not have any work experience to rely on when applying for employment. This, in combination with a criminal record has the potential to make it extremely difficult for that person to obtain any kind of employment requiring more than base level skills.

Due to the serious consequences possession of a criminal record can have on a juvenile's future, Queensland courts may decide to not record juvenile convictions. Section 183 of the Juvenile Justice Act 1992 states that when deciding whether to record a conviction, the court will consider various factors. These include the impact of recording the conviction on the child's chances of rehabilitation generally and finding or retaining employment.

2(e) What special difficulties face Indigenous people with criminal records?

As mentioned in the discussion paper, research has shown that in regard to persons with criminal records, inability to obtain suitable and challenging employment often leads to re-offending. As Indigenous people are over-represented within the justice/corrections system, the rates of unemployment within the group are also over-represented. This has the potential to lead to re-offending behaviour.

2(g) What strategies might address ongoing stereotyping of people with criminal records in the workplace?

Employers and employees need to be educated on what constitutes discrimination on the basis of criminal record in employment. The Commission believes it is also important to differentiate between discrimination on the basis of criminal record and distinguishing various offences in certain types of employment. As discussed above, in Queensland people who have committed certain offences may be prohibited from working or volunteering in some child related fields. In these circumstances, the children's best interests are a paramount consideration. Such actions should be distinguished from denying a person employment in a more generalised position simply because they have a criminal record (regardless of the offence/s committed).

What do discrimination laws say about taking a person's criminal record into account in employment?

3(a) Are there currently sufficient legal protections against discrimination in employment on the basis of criminal record?

The Commission believes that generally, there are currently sufficient legal protections against discrimination in employment on the basis of criminal record.

What does a criminal record include?

4(a) Do employers and employees understand the categories of information that might be included or excluded on a criminal record check provided by police?

Information on the working with children check is available to employers on the Commission's website. This information includes which categories of employment and businesses require blue cards, what constitutes the working with children check (i.e. what information is accessed) and the processes involved in making a blue card application. Specific information is also included on which offences may result in a negative notice being issued.

Recent amendments to the Act now require employers and people carrying on regulated businesses to develop and implement a risk management strategy to promote the wellbeing of children and protect them from harm. The Commission is also developing an education strategy, including the provision of education kits, website information and presentations to organisations and media outlets.

4(b) When requesting a criminal record check, do employers seek information about specific offences or do they request a general review?

The Commission is responsible for conducting criminal record checks on individuals wishing to carry on a business or work within certain child-related fields as well as requesting criminal record checks of its own potential staff members. Information on the Commission's working with children employment screening process is discussed at 2(b).

With respect to potential employees of the Commission it is a condition of employment that prospective employees consent to a criminal history check. Section 132 of the Act states that a person seeking to be a staff member of the Commission must disclose whether he/she has a criminal history and if so, the complete criminal history. Under section 133, a staff member is obliged to inform the Commissioner if there is a change in his/her criminal history (this includes where a staff member acquires a criminal history).

Directive number 2/04 issued by the Queensland Government's Office of the Public Service Commissioner on criminal history checks (the directive) outlines how Queensland government departments are to carry out criminal history checks on prospective employees. The directive applies to public service employees and potential employees.

The directive states that the requirement for a criminal history check to be conducted on the recommended person must be stated in any advertisement for the job and details about the conduct of the criminal history check must be included in the job description. It specifically states that a person must not be asked to divulge personal criminal history information to a selection panel or other public service employee before or during an interview to decide the recommended person.

Position descriptions used to advertise vacancies at the Commission state that a criminal history check will be carried out on the preferred applicant. It is further stated that possession of a criminal record is not an automatic bar to employment as the nature of the circumstances of any offence/s is taken into consideration.

4(d) Have there been instances where a criminal record check has been completed without an individual's consent?

With respect to potential Commission employees, the directive states that a criminal history check cannot be obtained without the recommended person's written consent.

In regard to the working with children check, an applicant must consent to the employment screening process before any check is undertaken. Under section 123 of the Act, an employee may give a written notice to the Commissioner withdrawing his/her consent to the employment screening. Consent is also deemed to have been withdrawn if an applicant fails to provide certain information to the Commissioner (if requested) within a certain time frame. Where consent is withdrawn, application will not be processed further.

When might a criminal record be relevant to employment?

5(a) In what occupations might a criminal record be a relevant ground for excluding a person from employment, licensing or registration? For these specific occupations what criminal record would be relevant and why?

A criminal record (including previous allegations and investigations) is a relevant ground in any position where the person has close contact with children, is responsible for their physical safety and/or may have a significant degree of influence over the children's behaviour. For example, teachers often have a large degree of influence over their students through their conduct both inside and outside the school.

5(e) What guidance is available to help employers determine the inherent requirements of the job in the context of employees with a criminal record?

The Act specifies certain categories of regulated employment and businesses as requiring a blue card (Schedule 1) as well as outlining what constitutes employment (section 99, 99A and 99B). The Commission's web site also includes information on regulated employment and businesses, who must obtain a blue card and the processes involved in making that application (including appeals/reviews from negative notices). As discussed in 4(a), regulated businesses and employers are also now required to implement risk management strategies to promote the well being of a child affected by the business of employment and to protect the child from harm. The Commission is developing training to assist employers with this requirement.

5(f) What information should be available to actual or prospective employees regarding the inherent requirements of the job?

Actual or prospective employees should be informed when a criminal history may be a barrier to their employment, particularly where specific offences will be viewed more seriously than others. They should also be made aware when consenting to a criminal history check that it is a pre-condition to employment (as occurs at the Commission - see 4(b)).

5(g) What mechanisms are available to appeal disqualification from employment, licensing or registration?

Employees dissatisfied with a decision made on the basis of criminal record should contact the Industrial Relations Tribunal.

In regard to the Commission's working with children check if a person's criminal history suggests they should not hold a blue card, the Commissioner will ask them to provide a submission on any police or disciplinary information held about them, explaining why they should not be refused a blue card. The Commissioner assesses the submission, any references or other relevant material provided, the nature of the offence/s and circumstances surrounding the case before making a final decision.

There is no right of appeal or review where a person has been issued with a negative notice for a conviction for an excluding offence (serious child related sexual offence or certain child pornography offence) where they were sentenced to imprisonment or a disqualification order is made (an order made by a sentencing court stating that a person may never hold a positive notice or blue card, or apply for a prescribed notice).

However, if an applicant is issued with a negative notice for any other kind of offence, the person is notified of the decision and the reasons for it. They then have the right to have the decision reviewed by the Children Services Tribunal, administered by the Department of Justice and Attorney General.

Disclosure

6(a) Do you expect employees to voluntarily disclose their criminal record?

Section 132 of the Act states that a person seeking to be a staff member of the Commission must disclose whether he/she has a criminal history and if so, the complete criminal history (s 133 covers changes in criminal record while employed).

Applicants for a blue card are not expected to voluntarily disclose the existence of a criminal record. This is information that will be obtained during the working with children check.

6(b) How do you respond if an employee refuses to answer questions about their criminal record?

Under Part 7 of the Act (section 131), the Commissioner must inform a prospective employee of the Commission of their duties of disclosure, that the Commissioner has the power to obtain information about their criminal record and that the guidelines for dealing with information obtained by the Commissioner are available upon request.

As discussed at 5(g), if a blue card applicant's criminal history suggests they should not hold a blue card, the Commissioner will ask them to provide a submission on any police or disciplinary information held about them, explaining why they should not be refused a blue card. If that person refuses or fails to provide a submission within the required time period, the application may continue to be assessed on the information available to the Commission.

6(c) How do you respond if an employee is dishonest about their criminal record?

Where a prospective employee of the Commission indicates they do not possess a criminal record and checks subsequently reveal evidence to the contrary, the Commission advises the prospective employee of the information obtained. He/she is then asked to explain the circumstances of the offence/s and how the criminal record may impact on his/her prospective role and duties. The Commission also asks why he/she failed to disclose that information when originally asked. Each case is considered on a case-by-case basis.

Making decisions based on criminal record

7(a) Do you have any examples of clear procedures for examining an applicant's criminal record? Are there currently guidelines in your organisation or industry?

The Act governs the Commission's criminal history checks of its staff as well as criminal history checks carried out as part of the working with children check.

Part 7 of the Act (Criminal history checks of Commission's staff) contains specific guidance on the use of information obtained under that part. Section 138 of the Act states that the information must only be used for the purpose of assessing suitability for employment or continuing employment and that when assessing that information, the Commissioner must take certain matters into account. Section 140 of the Act further states that the Commissioner must make guidelines consistent with the Act for dealing with information obtained by the Commissioner under Part 7. These guidelines should ensure that natural justice is afforded to the persons about whom the information was obtained, that only relevant information is to be used, and that decisions are made consistently.

The procedures involved in the Commission's working with children check are discussed above at 5(g).

DISCRIMINATION IN EMPLOYMENT ON THE BASIS OF CRIMINAL RECORD