DISCRIMINATION IN EMPLOYMENT ON THE
BASIS OF CRIMINAL RECORD

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Submission No. 84 - Department of Community Development, Western Australia

Submission from:

Sandie van Soelen
Director Policy and Program Development
Protecting Children, Young People and Families
19 January 2005

The Discrimination in Employment on the Basis of Criminal Record Discussion Paper provides a detailed synopsis of the issues relating to employers using criminal records as one of the measures for assessing person's suitability to be employed.

The use of criminal record checks both by government and non-government agencies and other businesses is increasing. As a result, discrimination against persons with a criminal record seeking employment has the potential to increase.

As identified in the discussion paper, "the issue of discrimination on the basis of criminal record involves a careful balancing of different rights. On the one hand former offenders have 'served their time' and paid their debt to society. They have the same right to seek employment as any other member of the community. On the other hand, there may be certain circumstances where a person with a particular criminal record poses an unacceptably high risk if he or she is employed in a particular position".

It is understood that from previous research there is evidence that past offences of a sexual or violent nature and those involving the acquisition and use of drugs and alcohol, are a good predictor of the possibility of these offences being repeated. Children are particularly vulnerable in respect of these offences. It is viewed therefore as important that criminal records for persons working with children and their families be assessed.

It is also believed that there hasn't been comprehensive research to determine the predictive nature of other offences in relation to these offences being repeated.

The use of criminal records checks for all kinds of employment without the relationship between these and the employment being carefully assessed is of concern.

For this reason, other strategies need to be put in place to prevent discrimination against a person on the basis of their criminal record, where there little or no relationship between the record and the person's ability to effectively perform their role.

Key Comment Areas

The difficulties facing people with criminal records who are seeking employment

In general terms the trend to check and recheck employee criminal records and to require, in certain circumstances, that an employee advise their employer should they be charged with an offence, means the possibility of a person being refused a job or dismissed from employment is greater.

The 'inherent requirements' of jobs and the relationship between different kinds of criminal records is not always well defined and therefore it is essential that careful consideration be given about whether a person's criminal record would prevent him or her from properly meeting those requirements. If this careful consideration is not given, there is a potential for a group of people being inaccurately discriminated against as a result of their criminal record check.

As indicated in the Discussion Paper, even where there is no explicit limitation on hiring a person with a criminal record, employers often perceive that those persons pose a higher risk of dishonesty, unreliability, irresponsibility or undesirable character. This can place people with a criminal record at a significant disadvantage when applying for jobs if an organisation undertakes preemployment criminal record screening checks. This is particularly true for groups of people such as, Aboriginal and Torres Strait Islanders', who historically have a higher rate of court convictions.

The Discussion Paper outlined the impact of a criminal record on job prospects and professional opportunities for juveniles with a criminal record, as the criminal record can affect an individual's entire working life. It is understood that most organisations don't have exemptions to screen juvenile records. However, in WA the Working With Children (Criminal Record Checking) Act 2004 will allow for the screening of juvenile records and the need for caution with this is well understood.

Employers with a successful track record of employing people with criminal records

The Western Australian Department for Community Development, which is a statutory child protection agency, has a clear policy in place which identifies that persons with adverse convictions of a serious sexual or violent nature, and/or serious drug offences particularly trafficking, and/or with a pattern of offences that indicate a person may pose a risk to the health and safety of client children, should not be employed, unless there are clear mitigating factors.

Mitigating factors assessed include, age at the time the offences were committed, the length of time since the offences occurred and what, if any, change has taken place since the offences occurred.

The Department has a signed Memorandum of Understanding with Crimtrac. The Memorandum outlines procedures for ensuring the secure management of criminal records and is cognisant of Commonwealth Privacy laws.

The Department has a Record Screening Unit, that receives and assesses criminal records. Only convictions of an adverse nature that have implications for whether a person works with children and their families are assessed. Currently, the Department employs individuals with criminal records where those convictions do not have implications for working with children and families.

The procedures and assessment processes adopted are stringent. Criminal records are held securely, are not passed to third parties and are not held on an individual's personal file. The Department's Record Screening Unit and the screening procedures applied are subject to an Annual External Audit.

Where an individual has an adverse conviction they are provided an opportunity to outline any mitigating factors that should be considered. In addition, an assessment of the relevance of the conviction to the job applied for is assessed.

If an individual is refused employment due to an adverse criminal record, the person is advised in writing and has the right of appeal. This is not something that has happened often.

The increased responsibility on government departments to have sound assessment procedures

In Western Australian, the police will at times advise a government department if a public servant has been charged with an offence that is believed to have implications for their employment. This approach could potentially cause concerns where charge information has been disclosed by police and the offences may not necessarily impact the individual's ability to effectively perform their role. Where this occurs it is the responsibility of the government department to determine whether the charge impacts the inherent requirements of the role.

When this occurs it is essential that the department ensures that a person's civil liberties are considered and an individual is not unfairly discriminated against as a result. For example, departments need to be very careful about making decisions about whether to suspend a person prior to the outcome of a court hearing. Unless the charge is serious and will impact the inherent requirements of the role, such as offences against children and/or the safety and livelihood of others, such a practice could have unfair consequences.

Is sufficient guidance available to employers to assist them in determining the inherent requirements of a job and in making decisions about particular employees

Within the social services industry, the Western Australian Council of Social Services (WACOSS) has made information on screening available as part of the EmployRight website for use by community services and charitable organisations. The information advises that the service needs to become knowledgeable about assessing criminal records before introducing such checks and that seeking of legal advice is encouraged.

There is however, limited guidance available in Western Australia to employers, government and non-government, to assist them in determining the inherent requirements of a job and in making decisions about particular employees based on criminal records.

Many employers or non-government charitable organisations, particularly small and voluntary organisations do not have the resources or staff skilled in assessing the relevance of a criminal record to inherent job requirements. Applicants and employees are nevertheless being asked to provide their criminal record for sighting.

With the proclamation of the Working with Children (Criminal Record Checking) Act 2004 in Western Australia , checks for persons working with children will be undertaken centrally or by an accredited agency. This means skilled persons will in the future assess records for persons wanting to work with children.

There are many agencies however, which undertake criminal record checks for purposes other than for checking employees who work directly with children. For example, the Western Australia Volunteer Secretariat, encourages that all volunteers undergo a criminal record check, this is irrespective of the type of volunteer position under consideration.

In Western Australia a Users Group has been established for government agencies using the services of the Crimtrac Agency to undertake criminal record checks. The knowledge of the agencies about the use and assessment of criminal records varies markedly within this Group. Some have extensive experience and others minimal experience. What is clear is that there is little consistency between agencies in their procedures and assessment processes.

When the Working With Children Act 2004 is proclaimed, standards and consistency will be more achievable for agencies that have children as their primary client. There are a number of agencies however, who belong to the User's Group that are not involved in the delivery of services to children. For example, some are involved in security operations and others in transport. Thus, there will continue to be a need for 'guidance' to help employers determine the inherent requirements of a job and in making decisions about employees with criminal records.

Strategies that may assist in reducing discrimination in employment on the basis of criminal record

1. Working With Children (Criminal Record Checking) Act 2004 Related Strategies

Recently, the Working With Children (Criminal record Checking) Act 2004 was passed in Western Australia . When proclaimed in January 2006, this legislation will require all persons working with children to have a Working With Children Check.

A benefit of the legislation is that it will ensure consistent standards across accredited agencies for checking and assessing criminal records in respect of persons working with children.

A further benefit is that it provides the right of response to the individual should the issuing of a negative assessment notice be under consideration. An individual will also, under this new legislation, have the right to appeal to the State Appeals Tribunal.

It is anticipated that the Working With Children (Criminal record Checking) Act 2004 will increase accountability and transparency across agencies and limit discrimination. This will however, require ongoing monitoring, particularly as the Act enables charges and juvenile and spent convictions to be checked and assessed.

An essential element to preventing discrimination is ensuring a process is in place in organisations to assess the relevance of convictions to the employment position for which an individual has applied.

2. General Strategies

It would be important for legislation to be developed that makes it unlawful to discriminate against a person on the basis of their criminal record, where there is little or no relationship between that record and the person's ability to effectively perform their role.

In other states, such as Queensland , minor convictions are automatically spent and expunged from a person's record. In Western Australia an individual needs to make an application to the Commissioner of Police to have a minor conviction spent and on receiving the application the Commissioner is required to spend the conviction. Unless an individual is aware of this process in WA and is in a position to make an application to the Commissioner, their old minor convictions will not be spent. Many Indigenous Western Australians in particular, are unlikely to seek to have their convictions spent. Thus any assessment of conviction record will include both old minor and new convictions. Changing Western Australia's legislation to one that is similar to Queensland's will prevent convictions that have passed the date when they could have been spent from being inaccurately used in assessing a person's criminal record.

Organisations would also benefit from receiving more guidance on how to assess the inherent requirements of a role. Additional information that would benefit organisations could include guidance on:

How to determine what types of criminal records may impact the inherent requirements of a role and a person's ability to effectively perform their role.
How to assess in the context of a role when there are several types and/or numbers of criminal convictions
The processes that organisations should develop - such as those people managing the staff needing to be part of whether a certain criminal conviction would impact a person's ability to effectively perform their role.
The type of information that needs to be considered when determining whether a criminal conviction may impacts a person's ability to perform a role. For example, the size of a community where the person lives is at times an environmental factor. If someone lived in a small town compared to a large city and the role was to have significant involvement with the community, if the person was convicted of an offence that would impact the trust and respect by community members then this needs to be considered.

Western Australia 's new Working With Children, (Criminal Record Checking) Act 2004 (WWC Act).

The following information is submitted in relation to Western Australia 's new Working With Children, (Criminal Record Checking) Act 2004 (WWC Act).

The WWC Act has been developed to create a system to contribute to the protection of children. The relevant criminal records of persons in child-related work will be assessed by persons with the skills to do so. The decision as to whether a person can be issued with an Assessment Notice to work with children will be undertaken in a manner that does not create a barrier to employment for those whose criminal record is not relevant to this type of work. There are clear internal and external processes for natural justice.

The WWC Act acknowledges that an inherent requirement of child-related work is that the person is safe with children. It was not considered appropriate to have different standards of assessment for particular child-related positions, as all offer opportunities for building relationships with children. For example - a caretaker working in a school, a child care worker, a member of the clergy, a scout leader.

Work in a position can also change over time as can the presence of skilled supervisors. Child-related work is considered as a class of work and a successful working with children check will result in an Assessment Notice (card) portable across a range of child-related work identified in the legislation. This is also a strategy to minimise persons having to undergo multiple checks.

Further information about the Working with Children Checks can be obtained by accessing the website www.community.wa.gov.au . This site also provides a link to the Working With Children (Criminal Record Checking) Act 2004 and to the Explanatory Memoranda.

A summary of the key elements of the legislation follows.

SUMMARY OF THE KEY FEATURES OF THE WORKING WITH CHILDREN (CRIMINAL RECORD CHECKING) ACT 2004

PURPOSE

The intention of the Working With Children (Criminal Record Checking) Act 2004 , is to introduce a high standard of criminal record screening into areas of child related work. It is a reality that some people, who wish to sexually molest or otherwise harm children, do seek out areas of work where there is opportunity for sustained contact with children.

Child related work includes work where the usual duties involve, or are likely to involve, contact with a child in connection with activities detailed in the legislation such as: regulated child care, commercial babysitting, education, accommodation, relevant wards of hospitals, cultural or sporting activities, counselling and support services and children's entertainment. Ministers of Religion are also identified.

There are many work situations where there is occasional contact with children or where the customers may be children. Examples of this may include the general retail industry, the local deli or cinema. It is not reasonable, nor is it the intention of this legislation, to require screening of general work situations.

Ensuring as far as is possible that those working with children are safe to do so requires a range of strategies including staff selection and supervision practices, checking of referees and qualifications. Criminal record checking is an important component of these strategies.

This legislation for working with children in Western Australia aims to contribute to the protection of children from harm by:

deterring people from applying to work with children where they have criminal records that indicate they may harm children
preventing those with such criminal records who do apply, from gaining positions of trust in certain paid and unpaid employment
establishing consistent standards for criminal record screening for working with children and ethical use of such information
contributing to awareness that keeping children safe is a whole of community responsibility.

BACKGROUND

The Working With Children (Criminal Record Checking) Act 2004 aims to address the concern of the community that there is consistent and thorough screening of the criminal records of those working in positions of trust with children.

There has been well-publicised concern about the abuse of children by the clergy, with both the Anglican and Catholic churches advocating for a systematic approach to screening those working with children. This concern has been heightened by the recent exposure of child pornography networks in Australia .

Governments have been working to improve systems for ensuring the suitability of such persons for working with children. Screening legislation has been adopted in Queensland and New South Wales and is currently under consideration in South Australia , Victoria and Tasmania . Western Australia has well-developed employee screening policies within key public sector departments. However, there is no universal legislation requiring criminal records screening for people working in child-related work in either a paid or volunteer capacity.

The legislation passed through Parliament on 26 November 2004 and was assented to on 8 December 2004. Regulations and the business operation are currently being developed and screening is planned to commence from 1 Jan 2006.

KEY ELEMENTS OF THE LEGISLATION

Agencies undertaking 'Working With Children' (WWC) criminal record checks

Assessment of criminal records will be undertaken by person with the skills to determine whether a person's criminal record has relevance to working with children.

•A central screening unit, currently proposed within the Department for Community Development will
- have the capacity to assess and determine whether persons with relevant criminal histories should receive or be denied an 'Assessment Notice' to work with children.
- set standards and policies for the screening of those working with children;
- assess the criminal records of those working with children who are Ministers of Religion, self employed, the licensees or employees in the child care sector, employees in the not-for profit and commercial sectors and most volunteers.
The majority of criminal records checks for those employed in State Government Services will be undertaken by 'Approved Screening Agencies'; those agencies that currently screen large numbers of employees who work with children. These agencies are expected to be the Department of Education, Department of Justice, Department of Health and Department for Community Development.
The Act provides for these agencies to be delegated authority to undertake 'Working With Children' (WWC) checks and approve issuing of 'Assessment Notices' with the same status and portability as the central screening unit.

Persons to be screened

A consistent standard of criminal record assessment is to be applied to persons identified by the legislation as being in child-related work. (WWC Act section 6.) The legislation acknowledges the 'inherent requirement' of child related work to be safety to work with children, one aspect of which is a person's criminal history.

It was not considered appropriate to have different standards of assessment for particular positions as all offer opportunity for building of relationships with and access to children. Work in a position can also change over time as can the presence of skilled supervisors. The Assessment Notice will also be portable enabling persons to use a valid working with children check across different types of child-related work.

Child-related work is undertaken by employees and self-employed persons in the commercial, not-for-profit and public sectors and may be paid, unpaid or voluntary.
Persons, who wish to take up a new or continue to work in an existing position in child-related work across all these sectors, must hold a valid 'Assessment Notice'.
Phasing in of the checks for different sectors will be detailed in Regulations and occur over 5 years with all new positions screened within the first 2 years.
Exemptions from the WWC check include: informal, domestic arrangements; children who volunteer; employers of young people and where employment screening is already prescribed and sufficient (such as teachers or police).
Other exemptions can be added in Regulations and will include a provision similar to the Qld Act for parents volunteering in activities with their children. Legislated conditions for parents supporting their children's development are not appropriate.

Records assessed

Criminal records (convictions and charges) identified as relevant to working with children are listed in Schedule 2 of the Act. The Act (under Section 12) is clear about how different classes of scheduled offences are to be treated. It is also clear that the default position for offences other than the identified scheduled offences is an Assessment Notice unless there are particular circumstances.

Application for a WWC check requires consent to a CrimTrac national criminal history check and for WA pending and non-conviction charges to be provided by the Western Australia Police Service until there is a CrimTrac capacity.
A 'successful' check will result in the issue of an 'Assessment Notice', portable over the range of child-related work, for a three-year period subject to notification of relevant charges during this time.
An 'unsuccessful' check will result in the issue of a 'Negative Notice', which will have currency until its cancellation by the authority administering the legislation.
An Interim Negative Notice may be issued to persons during the period of assessment by the relevant authority.
The WWC check will assess juvenile and adult criminal records including spent and unspent convictions, and charges in relation to a limited number of serious offences, primarily those of a sexual or violent nature.
Charges able to be assessed will include those that did not result in a court conviction (non-conviction), and pending charges yet to be decided by a court.
The reason for this is to be able to consider scheduled offences that, for example, have been dismissed on a technicality or have not proceeded because of the impact on the victim, particularly children giving evidence in sexual assault cases. Similar provisions apply in Qld and NSW.
In relation to these non-conviction charges, the onus is upon the assessing authority to show that particular circumstances exist and an 'Assessment Notice' should not be issued.

Framework for assessment

Conviction for certain serious sexual offences against a child under 13 years, committed as an adult, will result in an 'automatic-bar' on child-related work - Class 1 offences. It is considered that examination of the particular facts of each case in the narrow range of circumstances captured by these offences is not warranted as the person is clearly a danger to children. It is noted that the Qld now has a range of 'exclusion' offences broader than the WA legislation.
Another set of serious convictions of a sexual or violent nature will result in a bar on child-related work, unless assessment of an applicant's criminal record indicates that the applicant does not pose an ongoing and unacceptable risk of harm to children - Class 2 offences.
Convictions outside of Class 1 or 2 will usually result in an 'Assessment Notice', unless the assessment undertaken indicates that the person is unsuitable to work with children.
Only Class 1 or 2 charges can be considered.

Assessment process

The assessment process will examine the seriousness of an applicant's record; the nature, circumstances and pattern of charges or convictions; the age at which the offences were committed; their relevance to child-related work; and anything else relevant to the decision. The paramount consideration is the best interests of the child.
The WA Commissioner for Police, Director of Public Prosecutions and the CEO administering the Sentencing Act 1995 (currently the Department of Justice) as well as Police Commissioners in other jurisdictions and criminal record agencies such as CrimTrac, are enabled to provide information to the screening authority.
The intention of the legislation is to deter or prevent from working with children, those with a criminal history that poses a risk of harm. The experience in Queensland , which has a similar approach, is that the screening processes have not discriminated against those with a 'colourful' past where the criminal history does not indicate a danger to children.
A card issued as proof of an 'Assessment Notice' will NOT endorse the person as suitable for particular positions. Advice and information from the screening unit will ensure that the criminal record checks are seen as only one of the practices responsible employers put in place to achieve safe environments for children.

Natural justice

Applicants will have the opportunity to make a submission to the authority administering the legislation, to argue against the proposed issue of a 'Negative Notice'. They will also be able to appeal to the State Administrative Tribunal to review any subsequent issue of a 'Negative Notice'.
Submissions and appeals in relation to a 'Negative Notice' issued under the automatic bar (Class 1 sexual convictions against young children) can only be on grounds that the person's criminal record is inaccurate.
Applicants receiving a Negative Notice for offences for other than Class 1 convictions, may apply to have a Negative Notice cancelled after three years.

Employee/employer obligations

Employees will be required:

to apply for an 'Assessment Notice' if they do not already hold one and renew three yearly;
to advise their employer immediately of any 'relevant change' in their criminal record (Class1 or 2 offence) occurs - no details required of the offence;
to cease child-related work immediately if they are convicted of a Class 1 offence committed as an adult; and
not to start or continue in child-related work if they hold an 'Interim Negative Notice' or a 'Negative Notice'.

Employers will be required:

not to employ or continue employing a person in child-related work unless the person has applied for or already holds a current 'Assessment Notice';
not to employ or continue to employ in child-related work any person who has a current 'Interim Negative Notice' or 'Negative Notice', or whose WWC application has been withdrawn; and
to advise the authority administering the legislation immediately when notified about an employee's 'relevant change of criminal history'.

Note that employers will not know the details of the criminal record - a person with an Assessment Notice may have committed offences that are not relevant to working with children. This is considered important as the intention is not to create a bar to employment for person with a criminal record - only the type of record that has relevance to working with children.

Reasonable flexibility is needed to deliver services in unforeseen circumstance such as the illness of a worker. Persons will have a defence for working without having had a check, if work with children has been undertaken on no more than 5 days in a calendar year. Similar provisions exist in Qld.\

Protection from liability is provided for:

the State in administering the legislation;
persons undertaking the criminal record assessments;
employers, including the State complying with their obligations under the Act but not limiting procedural fairness requirements or access employee entitlements.