DISCRIMINATION IN EMPLOYMENT ON THE
BASIS OF CRIMINAL RECORD

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Submission No. 72 - Department of Health and Human Services, Tasmania

Comments on Discussion Paper - Department of Health and Human Services, Tasmania

Questions for discussion - What impact might a criminal record have in the area of employment? (Page 9)

2(a) Do you know of any employers with a successful track record of employing people with criminal records?

The Department of Health and Human Services effectively employs people who have criminal records. In the employment process, the record is not taken into consideration if it is irrelevant to the role for which the person has applied.

2(b) What practical difficulties face people with criminal records who are seeking employment?

When people have been convicted, successfully completed their penalty and want to move ahead with their future, it is recognised that it can be quite traumatic to have to bring past convictions to the attention of a potential employer. Applicants in this situation often have concerns that the potential employer may discount them on the basis of their criminal record, without allowing them the opportunity to place the conviction and the circumstances into context.

2(c) How do people with criminal records address the difficulties they encounter in seeking employment?

We are unaware of what avenues that they may have apart from the Anti-Discrimination Commission and the Ombudsman. It is acknowledged that people may choose not to use these jurisdictions due to a feeling that it would be very difficult to prove that they have been unfairly treated or discriminated against on the basis of their criminal record.

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

In addition to the comments made in 2(b), juveniles also have the disadvantage of little or no previous work experience and/or minimal skills to assist them to sell themselves to potential employers. If a person has knowledge and skills that are of value to an employer, the employer may be more receptive to looking into the conviction records further to determine if it is relevant, rather than discounting them up front. Another difficulty faced by juveniles is that the criminal record is likely to be more recent when compared to older applicants. An older applicant, for example, may have a record from when they were young, but have had no convictions for a number of years. This may be viewed more favourably when considering older applicants.

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

In addition to the comments made in 2(b) and 2(d) respectively, indigenous people often face further discrimination based on cultural misconceptions and/or ignorance.

2(f) Why might employers be reluctant to employ someone with a criminal record?

Employers should not be reluctant if the record is not relevant to the position and/or work environment. However, even if there is no correlation between the conviction and the employment/work environment, employers are some times reluctant to employ someone with a criminal record due to the public perceptions that could be held by clients if the conviction was known.

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

Strategies similar to the Managing Diversity programs that are operational in most modern workplaces, in addition to education programs for managers and staff.

Questions for discussion - What do discrimination laws say about taking a person's criminal record into account in employment? (pages 14 & 15)

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

The Tasmanian State Service Act 2000 and Commissioners Direction Number 10 (Pre- employment Checks) provide a sound basis for ensuring protection against discrimination for Tasmanian State Service employees. The Anti-Discrimination Commission, Ombudsman's Offices and State Service Commissioner provide appropriate protection through the handling of complaints and grievances for all applicants to positions. A copy of Commissioner's Direction No. 10 is provided as Attachment 'A' for information.

3(b) If there needs to be additional protection against discrimination in employment on the basis of criminal record, what form should it take and what elements should be included?

The internal organisational processes for determining whether a criminal record is relevant or not currently rely on the discretion of individuals and are, subseque ntly, open to variation and inconsistencies. It may be possible to overcome this problem by establishing up a small panel to review a record to determine if relevant, however the timeframes that this would introduce could be prohibitive. The establishment of a panel could also create issues around confidentiality, as it may increase the number of people who were advised/made aware of the person's conviction.

3(c) What remedies should be available for people who have experienced discrimination on the basis of criminal record?

Remedies already exist and are instigated by the Anti-Discrimination Commission, Ombudsman's Offices and the Office of the State Service Commissioner.

3(d) What difficulties might face a person with a criminal record who wishes to use the current anti-discrimination legislation? What can be done to overcome these difficulties?

People wishing to use the current anti-discrimination legislation may be deterred by the timeframes involved with the process.

Questions for discussion - What does a criminal record include? (page 17)

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?

This would be dependent upon their exposure to the processes. It is considered that the general workforce would not have a good understanding of the various categories.

Within the Department of Health and Human Services there is a very strict process to follow when seeking approval to include conviction records as an employment condition. Approval needs to be sought from the State Service Commissioner, which is an external body to the Department. In order to gain the approval to make conviction records an employment condition, the Department must jus tify why obtaining the record is relevant to the role. Staff involved in undertaking conviction checks are trained in the categories of information contained in conviction checks and the relevance of each to the type of employment.

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

In the Department of Health and Human Services, only records which may be relevant to the role are requested. If additional information is provided by the applicant or by Tasmania Police, it is not taken into consideration, unless it is considered to be of such significance that it requires further examination.

4(c) What difficulties, if any, have employers and employees encountered in obtaining criminal record checks?

The timeframes in obtaining specific information through CRIMTRAC when various state jurisdictions are involved are a problem for us as an employer. Another problem is in the consistency of the provision of information across the different jurisdictions. This issue is compounded by the spent convictions or annulled convictions legislations that vary from State to State. A nationally consistent system would be of benefit.

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

Not to our knowledge.

Questions for discussion - When might a criminal record be relevant to employment? (pages 26 & 27)

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?

Within the Department of Health and Human Services, criminal records are currently obtained for positions as listed in Attachment 'B'. The Department undertakes conviction checks in the following areas:

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

In obtaining approval to review criminal records as a condition of employment, the Department must demonstrate to the State Service Commissioner that it is an inherent requirement of the role that an employee does not have a history of specified conviction types.

The Department of Health and Human Services is a large service-delivery organisation, with many areas dealing directly with members of the community. Often the client base are vulnerable or are in vulnerable situations and the Department needs to protect the interests of these people. It is current practice for the Department to consider obtaining approval to conduct conviction checks when appointing to certain positions, or when a position is being reviewed or created. The Department has a protocol established to assist Managers in making this decision (refer Attachment 'C'). Advice and guidance is also provided to Managers by the Human Resource Services branch, which is responsible for seeking and obtaining the appropriate approvals.

It is our view that anyone working with vulnerable people (e.g. children, the elderly, or people with a mental or physical disability) should be subject to criminal record checks. Similarly those with authority over others (e.g. doctors, police, prison officers) should undergo these checks. This should possibly also be extended to public servants who make decisions that affect other peoples' lives (e.g. who control access to services or make assessments in relation to public housing, government pensions, etc) as these people should be seen to be above reproach and of good character to avoid any perception of bias or possible fraudulent activity.

In general, the need for a criminal record check should be very much dependent upon the work performed, the level of authority given to a position, the people with which the person holding the position would come into contact, and the level of independence in decision making afforded to a position. This information also needs to be closely considered when determining the types of convictions that should be taken into account when appointing a person.

5(b) In what occupations would a criminal record never, or almost never, be relevant?

There is argument that a large number of positions within this Department could potentially require some form of criminal record check (at a minimum, crimes involving dishonesty should possibly be identified and considered for most positions). Despite this, conviction records may not be particularly relevant for the majority of administrative and clerical type positions within the Department.

5(c) Are there any examples where criminal record checks are conducted unreasonably (ie. go beyond the inherent requirements)?

Not within the Department of Health and Human Services, due to the strict approval processes mentioned in response to question 4(a).

5(d) Are there examples of licensing, admission or registration rules that go beyond the inherent requirements of the position?

No comment provided. Please refer to response to question 5(j).

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

Each position within the Department of Health and Human Services has a Statement of Duties, which provides Managers with information relating to the key requirements of the role. Managers can seek guidance and interpretation from personnel within the Human Resource Services branch of the Department if required.

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

In the Department of Health and Human Services, Statements of Duties outline the inherent requirements of the job, including position objectives, primary tasks, pre-employment checks to be undertaken, and selection criteria. There is also provision on the Statements of Duties for Managers to describe the work environment to prospective employees. Reference to a Statement of Duties provides an applicant with a good level of understanding of the role prior to them applying for the position.

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

The Tasmanian State Service's Commissioner's Direction No. 10 (Attachment 'A') clearly spells out the process to be followed and allows the applicant the opportunity to put the record into context if it is likely to affect their preferred candidate status. An internal applicant (ie. a State Service employee) can follow the internal grievance process or can lodge a request for review through the Office of the State Service Commissioner. An external applicant can lodge a complaint via the Anti-Discrimination Commission or Ombudsman's Office. In

5(i) What examples do you have of possible discrimination on the basis of criminal record?

We are unable to provide any examples to this question. To the best of our knowledge, the Department has not discriminated against an applicant on this basis.

5(j) Do licensing or registration rules allow for individual assessment of a person's criminal record and its relevance to the inherent requirements of a particular job within the industry?

A response to this question would need to be provided by Medical Councils, the Nursing Board and the relevant Allied Health Professional bodies.

Questions for employers (page 33)

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

Yes, but only if it is a requirement of the position for an applicant's criminal record to be disclosed. Where applicable, the Department of Health and Human Services advises applicants of the requirement as part of the advertising process.

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

As indicated in our response to question 6(b), applicants are advised of the requirement as part of the advertising process. Within the Department of Health and Human Services there have only been two instances in the past 12 months where applicants have refused to answer questions about their criminal record. In both instances this has occurred when seeking further information in order to place the record into context to determine its relevance. In each of these situations, the applicants chose to withdraw from the process rather than to provide further information. The decisions to withdraw were made by the applicants and not the employer.

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

For existing employees, this type of circumstance would be dealt with in line with the Department's processes in relation to a breach or alleged breach of the Code of Conduct. External applicants to positions are also afforded natural justice and would be given a right of reply and an opportunity to put the situation into context. Following further investigation of the facts, if the applicant was found to have been deliberately dishonest, the Department may withdraw any offer of employment that had been made.

6(e) How should employers make sure that they comply with the requirements of spent conviction legislation?

Criminal records are provided to the Department by Tasmania Police (including records obtained from other jurisdictions). The Department relies upon Tasmania Police to apply the spent conviction legislation prior to release of the information. This process guarantees that the Department only takes into consideration records that are 'live'.

Questions for applicants/employees (page 33)

6(f) Do you have any examples of a person voluntarily disclosing their criminal record and then experiencing discrimination?

6(g) Do you have any examples of instances where an employee has been dishonest about their criminal record? What were the reasons? What was the result?

6(h) Do you have any examples of an employee refusing to answer questions about their criminal record?

Refer to response provided to question 6(c).

Questions for employers (page 38)

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?

Please refer to the Tasmanian State Service's Commissioner's Direction No. 10 (Pre-Employment Checks) - Attachment 'A'.

(b) What would further assist you in understanding your responsibilities and in what form would the information be most useful?

Employees who are required to review conviction records in order to make recruitment decisions need to be able to determine the severity of the conviction and, at times, judge the relevance of the conviction to the specific role. It may be appropriate for such employees to be provided with further information/training on the legal system.

7(c) Do you have any examples of confusion about whether a criminal record is relevant to the job?

7(d) What review or appeal processes should there be for decisions made on the basis of criminal record?

We believe that the review processes within the Tasmanian State Service are sound for existing State Service employees. It is also considered that review opportunities for both internal and external applicants (the Anti-Discrimination Commission and the Ombudsman's Office) are appropriate.

7(e) Does your organisation have any training materials that address these issues?

Questions for applicants/ employees (page 38)

7(f) What information should you have about how your criminal record might be considered by an employer?

No comment provided for this question.

7(g) Do you have any examples where employers have not had clear or fair procedures for considering an applicant's criminal record?

7(h) What opportunities should be given to an applicant to explain their criminal record?

As outlined in Commissioner's Direction No. 10, this is built into the Department of Health and Human Services' processes and ensures natural justice and a right of reply.

DISCRIMINATION IN EMPLOYMENT ON THE BASIS OF CRIMINAL RECORD