DISCRIMINATION IN EMPLOYMENT ON THE
BASIS OF CRIMINAL
RECORD
Click here to access:
Submission No. 73 - Legal Aid Queensland
Attachment:
Legal Aid Queensland Submission to the Department
of Education and the Arts
on conduct of criminal record checks on Persons seeking to work with
children in educational settings
This submission has been prepared in response to the Consultation Paper dated September 2004.
1. What convictions should the model provide for release of?
The model legislation needs to balance the need to protect children from risk of harm with fairness to the employment seeker. Once criminal history information is released, there is potential for it to be inappropriately used. Review and appeal procedures will assist applicants to some extent. However, as previously submitted by Legal Aid Queensland in relation to the Commission for Children and Young Person's Bill 2000, it is only people with a high level of confidence, good communication skills and an understanding of the role of government and quasi judicial processes who are likely to challenge a decision. Many people with legitimate grounds to challenge a finding that they are unsuitable to work with children may simply give up.
There is potential for persons to be precluded from working with children in an educational setting because of a conviction, even though in any common sense view of the situation they do not pose any greater risk to children than anyone else.
The Criminal Law (Rehabilitation of Offenders) Act 1986 already contains provisions which set out the types of convictions which must be disclosed when seeking employment in the education department, regardless of whether those convictions are recorded or not or are for other purposes "spent" A similar approach could be adopted for the purpose of deciding which convictions should be disclosed on a criminal history check. Apart from the particular offences set out in Section 9A when seeking employment as a teacher or teacher aide in the Education Department, disclosure of a conviction would only be made in a criminal history check if the offence was recorded and not "spent". Offences for indictable offences could be taken as spent after 10 years and summary offences after 5 years.
It may be prudent to review Section 3(2) Criminal Law (Rehabilitation of Offenders) Act which specifies that only convictions where less than 30 months are served in custody are eligible to become "spent" Other states have a lower period of time in custody specified. 24 months may be a suitable compromise given that it represents the maximum sentence for a range of indictable offence when dealt with summarily, such as stealing for example.
As it is, there are valid arguments against an offence being disclosed on a criminal history check, even though it may not have been recorded or may otherwise be "spent" merely because it is classified as an offence of a particular type. A decision based on the sentence imposed would be a more accurate indicator of the seriousness of the offence and whether the person really poses a risk to children. Take, for example, a case of unlawful carnal knowledge. A 17 year old may be convicted of that offence for having consensual sex with his 15 year old girlfriend. Can that really be said to be relevant in deciding his suitability to work with children at aged 27 or older, in the absence of further offending?
Given the provisions of the Rehabilitation of Offender's Act and the Commission for Children and Young People and Child Guardian Amendment Bill 2004 (if it is passed in its current form) the likelihood of sexual offences against children not being including in criminal history checks under any circumstances, is unlikely. We can only urge caution and strict guidelines as to what use should be made of the information.
We would however, strongly submit, in the case of juvenile offenders that the criteria for release of juvenile convictions be based on seriousness rather than type of offence once the convictions are spent. The best way to determine this, would be to include conviction where detention of more than 24 months only be released. There is some justification in taking this approach even in relation to sexual offences given that teenagers under 17 years are at an age where they are still maturing and discovering their sexuality. Commission of some sexual offences, (such as a minor indecent assault or other sexual offences which are not non consensual or violent) committed as a juvenile, are not a true indicator that the person is likely to pose a risk to children as an adult.
2. Should all convictions be released?
No, is the view of most Legal Aid Lawyers. There can be no justification for releasing detail of convictions which would otherwise be spent and/or which do not really show any propensity in the person to harm or be a risk to children.
3. What types of charges should be released?
There is even more reason to be cautious about releasing details of charges a person has faced which have not resulted in conviction. For some types of charges the same arguments would apply as outlined in 1. Even if convicted of the charge it may not provide an indication of the person's suitability to work with children.
A: Persons charged, tried and acquitted.
A further argument against releasing details of charges is that the person has not been found guilty of committing the offence. If the person is found not guilty by the Court, then that verdict should be respected. Of course it may be the case that the Court may have been satisfied on the balance of probabilities, if that had been sufficient to support a verdict but were not satisfied beyond reasonable doubt. That is however a risk that may need to remain. It may be equally likely that the Court believed the allegations to be false or that it was not satisfied that the offender and the Defendant were one and the same. To allow details of the charge to be released invites the decision maker to speculate upon the reasons for the person not being convicted. This is not desirable or helpful particularly if the trial was by jury because juries do not give reasons for their verdicts
The one situation where the balance might be in favour of releasing details of a relevant charge after an acquittal is where the sole defence was insanity or diminished responsibility. Whilst the Court may deem the person not to be legally responsible for his or her actions he or she may nonetheless pose a risk to children.
B: Persons charged but not tried.
An argument often used to justify releasing details of charges which did not result in a plea of guilty or a trial is that proceedings may have been discontinued for reasons other than lack of credible evidence. Examples are given in the discussion paper at page 13. These arguments however treat a complex issue as simple and presupposes that there is a single or common motive for proceedings not continuing. In reality the decision usually has to be approved by a number of people who may use different reasoning to concur with the proposal to discontinue proceedings.
Even if there is a common motive due to concern for the welfare of the complainant, for example, the fact still remains that the person has not been found guilty of anything and if the matter had gone to trial may have been acquitted. Any practitioner who has been involved in a large number of criminal trials will know that the unexpected often happens during a trial. Witnesses who appeared honest and unshakeable when interviewed change their story or inconsistencies or improbabilities become apparent under cross examination.
Often little or no attempt has been made during the police investigation to seek out and interview witnesses who may be able to provide evidence which casts doubt upon the evidence of the main prosecution witnesses so that the first time it comes to the attention of the Director of Public Prosecutions is at the trial.
The probative value of information about criminal charges in assessing a person's suitability to work with children is significantly outweighed by the risk of prejudice in the life of a person charged but not convicted and who may after all be innocent. If the person was unsuitable to work with children one would hope that other background checks would be a sufficient indicator without resorting to unproven allegations of criminal behaviour.
C: Pending charges
Many of the arguments used to submit that charges not being pursued could be used to argue against the release of information about pending charges. The main argument being that the allegations have not been proven and could be false.
Pending charges are slightly different however because no decision has been made that they will not or can not be pursued to trial nor has a court acquitted the defendant. Whilst the person may be found not guilty or the charge may be dismissed before trial, it is also possible that the person will plead or be found guilty. If the conviction is of a type which will be disclosed on a criminal history check and is likely to cause the person to be considered unsuitable to work with children then it is probably not in the interests of the person or their potential employer to have the person employed, only to have to be removed and replaced a short time later.
Because the pending charges, like charges which have been deal with but not led to conviction, it still remains the fact that to allow disclosure which is too wide has the potential to affect the employment of a person desiring to work with children when no real risk exists. A compromise may be to require information about pending charges for the types of offences likely to be most relevant such as sex offences, offences against children, violent offences and serious drug offences. It may not be necessary to even release details of the actual charges, the criminal history could simply contain a clause saying "relevant matters pending" with an indication of the likely resolution date if possible.
In fairness, to an applicant for employment working with children in educational settings, it should be made clear at the outset what information may be released on a criminal history check in relation to pending charges. This would given the person the option of making an informed decision whether or not to delay an employment application until any pending charges are dealt with.
4. Should all charges be released?
For the reasons outlined in 3 above, No! There is however some justification for releasing information about highly relevant pending charges.
5. Should investigative material be released?
The same objections apply to the release of investigative information as apply to the release of charges, namely that the evidence has not been tested and nothing has been proven. In fact, there is even less reason to release investigative information as the police have not even at that point deemed it to be sufficient to support a charge. There may some justification for releasing details when a charge of the type mentioned in 3 c as being relevant is imminent. A privacy safeguard may be to simply contain a clause that "relevant matters may be pending" After all, the person still may not even be charged.
6. Should details of the circumstances of the convictions or charges be released as part of a criminal history check
There would seem to be no logical reason for the release of details of circumstances. The penalties imposed for convictions ought to be adequate to indicate the seriousness or otherwise of the offence. It is submitted in 3 C above that only pending charges of certain types should be released. In relation to those charges perhaps the person the subject of the criminal history check could be asked whether he or she wants details of the circumstances to be released. It may be in that person's interests to release the details if they indicate that the matter is not as serious as it might otherwise appear. Because there is no conviction, there is no sentence to indicate how seriously the Court may view the matter.
7. Are there other categories of entities that should be approved to receive and use criminal history information
The more entities to whom criminal history information is released, the greater the chance of that material being misused or released to unauthorised persons. Caution is needed in deciding to whom the information should be made available. The key education bodies, both government and non government are all that are needed. For example the Department of Education or equivalent in each state, Catholic Education etc. Smaller operators could apply to Department of Education or to Commissioner for Children and Young People (or equivalent) for a suitability recommendation.
8. Basis for approving entities
It is agreed that a process for approving and suspending entities is necessary to accommodate changes over time. There would need to be clear criteria as suggested in the discussion paper at page 18 to ensure that the entity has the necessary expertise and resources to store and control access to the information, comply with the rules of natural justice and make practical recommendations based on evidence rather than assumptions or prejudices.
9. Process for approving entities
It is submitted that application to be an approved entity should be made to a Tribunal or committee comprising of people who will bring the necessary expertise and considerations to the deliberations. The same body could rule on applications to suspend an entity and even possibly to review finding of non suitability to work with children in education settings.
10. What should the prescribed purposes of criminal record checks be?
The purposes set out on page 20 of the discussion paper appear to be the only necessary purposes for requesting a criminal history check within the context of the discussion paper. Legal Aid Queensland supports the proposal that a criminal history check be requested only in relation to the preferred candidate for the position when all other processes such as interview, referee checks, employment history checks etc have been completed. This is consistent with the policy that because criminal history information is sensitive and likely to be highly prejudicial it should be released on a strictly 'need to know' basis.
11. Should the model provide a guide as to relevant considerations for approved entities in making a decision on the basis of criminal history information
Given that there will be many entities throughout Australia making assessments it is most important that as far as possible there be consistency between states and between entities. The only way of ensuring this is by the development of reasonably thorough guidelines and policies.
The relevant considerations listed on page 20 are supported by Legal Aid Queensland. Another relevant consideration could be, what rehabilitation was undertaken by the person in between committing the offence and the application for employment. This would be particularly relevant in the case of alcohol or drug related offences. It could also be relevant to assault or other offences where anger management might be relevant.
It may also be possible to include a list of irrelevant considerations or matters which should not be taken into account. This could be compiled over time as a result of successful appeals on findings of unsuitability.
12. How could the model ensure approved entities were subject to appropriate scrutiny
It is most important for a framework for monitoring and auditing the compliance by the entities with the legislation. Such an audit should take place at regular intervals for example in the same way as child care centres and nursing homes are required to be audited and demonstrate compliance with set criteria.
Another requirement could be to require all entities to provide a copy of guidelines and policies and also a Statement of Reasons for a Decision to find a person unsuitable upon request. This is already required (at least in Queensland) of government entities under the Judicial Review Act. The requirement needs to be extended to non government entities and the process perhaps simplified and made less formal. For example the time limit of 28 days could be extended. Also it need not be necessary for the applicant to stipulate that the request was made under the Judicial Review Act or the model legislation under discussion. The intention would be to not excuse an entity from complying with the legislation on grounds of lack of formality or insignificant lack of strict compliance by the applicant in requesting the information.
13. What sort of offence provisions should the model include?
Legal Aid Queensland supports the suggestion of offences listed on page 21. There could also be offences involving the unintentional release of criminal history information due to gross negligence or through non compliance with security or storage provisions for the information required by the Act
14. Should the model provide indemnities?
There can be no real objection to providing an indemnity for acts or omissions done honestly and without negligence, although one might wonder whether there would be many situations in which such an indemnity would be relevant. It could be relevant in the case of situations where vicarious liability would otherwise apply to make an employer responsible for the acts of an employee. It may also, in some circumstances, excuse an inexperienced employee where he or she has followed the orders of the employer without knowing that in doing so he or she has breached the legislation.
15. Should criminal history information only be retained by an entity for a specified period.
It would be consistent with the policy of strictly limited permitted use of criminal history information for that information to be destroyed by the entity after the application process and appeals period. It is true that criminal history information would be required to review a person's suitability for ongoing employment. If the person had been deemed suitable, however, that status would not change on the basis of information the entity had already received.
If a review of on going suitability was required to find out what had happened since provision of the original criminal history check, the entity would have to reapply to the police or crim trac for an update anyway. There can therefore be no justification for retaining information in the intervening period.
16. What sorts of controls over the storage of information should the model include?
Just because an entity is approved to receive criminal history checks does not mean that everyone in that organisation should have access to that information. Provisions could be included in the model legislation or regulations or polices made under the Act for entities to put in place requirements for paper records to be kept under lock and key and computer records to be protected by password or some other means so that only those needing the information to perform their job can access the information.
17. Aside from a right of reply and a right of appeal, should the model contain any other natural justice provisions
The suggestions set out on page 23 contain the main provisions which would be required. The legislation should provide for a mandatory minimum notice period between provision of criminal history information to the person whom it applies and the making of a decision by the entity so that the person has adequate time to prepare a response. The whole procedure should also be conducted in a non discriminatory way. Every possible assistance should be given to persons with a disability or who are from different cultures or linguistic background to enable them to have an opportunity to access rights of reply and appeal. For example assistance could be given to a deaf person to access an interpreter if an oral hearing was to take place.
A person ("a decision maker") within an entity having input into making a decision or in deciding an appeal should be required to declare any interest whatsoever in relation to a particular person the subject of the suitability check which may give rise to apprehended bias. A decision maker could disqualify themselves or be required to disqualify themselves from input into the decision at the election of the person to whom the suitability check relates. An example of special interest might be if a decision maker was a close friend or a relative of the complainant in one of the offences for which the person was convicted.
It would be desirable to have a right of appeal for reconsideration on the merits on the grounds that the finding of unsuitability was harsh and unreasonable. The right of appeal could be restricted to persons who did not have any convictions which constituted automatic disqualification under the legislation or guidelines for the profession or job being applied for.
18. Should the legislation contain a requirement for review?
It is desirable for the model legislation to contain a requirement for review in view of the likely number of approved entities operating in different states. The administering Minister could be required to seek submissions from relevant Ministers in each state. State Ministers could then seek opinions from stakeholders in their own state.
In particular, the quality of decisions being made by entities could be assessed. This could be done by evaluating the reasons given for overturning the decisions of entities on appeals. Purposes for this exercise could be to consider whether the guidelines for assessing suitability for child related employment and for approving entities needed to be improved.
CHIEF EXECUTIVE OFFICER
LEGAL AID QUEENSLAND
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