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DISCRIMINATION IN EMPLOYMENT ON THE BASIS OF CRIMINAL RECORD

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Submission No. 85 - Department of Education and Training, Western Australia

Submission from: PAUL ALBERT, DIRECTOR GENERAL

DO05/037751
Mr Stephen Duffield
Director, Human Rights Unit
Human Rights and Equal Opportunity Commission
GPO Box 5218
SYDNEY NSW 2001

Dear Mr Duffield

Thank you for providing an opportunity to respond to the Human Rights and Equal Opportunity Commission December 2004 Discussion Paper entitled D iscrimination in Employment on the Basis of Criminal Record .

The protection of children and other vulnerable people attending educational facilities is of prime concern to the Western Australian Department of Education and Training and every effort is made to maximise their safe learning environment.

Since 1997, following endorsement by the Minister of Education of the National Strategy in Schooling to Prevent Paedophilia and Other Forms of Child Abuse developed by the Ministerial Council on Education, Employment, Training and Youth Affairs (MCEETYA) all new applicants for positions in Western Australian public schools have been required to have an Australia-wide police clearance.

Commencing in 2005, the Department of Education and Training will criminal record screen all school teachers, TAFE lecturers, administration and support staff, who have not already been police cleared.

The Department has a significant interest in ensuring that the criminal screening process complies with all legislative, procedural fairness and ethical standards and is pleased to contribute to issues raised in the discussion paper.

Responses to specific questions in the paper are provided in the attached document.

I trust that the information is of assistance.

Yours sincerely

PAUL ALBERT
DIRECTOR GENERAL

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

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

The screening process of the Department of Education and Training (DET) in Western Australia focuses on maximising the safe learning environment of its students. Applicants' criminal convictions are assessed on a case-by-case basis, taking into account the type and seriousness of the offence and the person's job role. In situations where it is considered that the safety of its students is not at risk the Department has employed people with a criminal conviction.

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

Matters that may cause difficulty for people with criminal records seeking employment include:

lack of clarity regarding an employer's policy and processes involved in dealing with criminal record disclosure. Some job advertisements say little more than a police clearance is required which could be construed as do not bother applying if you have a criminal record. It is recommended that job advertisements state whether a criminal record precludes or does not necessarily preclude employment. A contact number that enables applicants to discuss their situation in a confidential manner would also be beneficial. This information is included in DET's consent form for a criminal record check;
uncertainty about whether confidentiality will be observed by prospective employers. Applicants, particularly in small communities, may be concerned about the release of their criminal conviction details. Employers should ensure that privacy requirements are clearly communicated and strongly enforced. The strict confidentiality requirements are emphasised in DET's consent form;
concern that disclosing a conviction at an interview would immediately impact on applicants' good character and adversely affect their chances of winning the job. This may lead to an applicant sanitising details surrounding an offence. The Department obtains information from the police concerning events leading to charging an applicant for an offence. Where the police information contradicts an applicant's explanations it may weigh against being employed, particularly in marginal cases;
a requirement to disclose details of criminal history when applying for a position, whether successful or not may discourage people with criminal convictions to apply. DET requires only a successful applicant to provide consent to a criminal history check; and
a perception that criminal convictions will automatically diminish chances of success can have the affect of wearing down even the most enthusiastic person. DET does not automatically bar applicants with criminal convictions. DET also acknowledges that indigenous people are more likely to be imprisoned for offences than their non-indigenous counterparts.

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

From an employer's perspective, a conscious decision by an applicant to be honest about criminal history is seen as the best way to proceed. Withholding information for whatever reason is perceived negatively when discovered. DET values honesty by applicants and it is highly regarded when making employment decisions. A committee, that includes senior departmental staff, is used to assess applicants. The assessment process is guided by a framework that assists decision making and provides applicants with a right to appeal decisions.

The Department assists applicants with a criminal conviction by providing confidential advice about their convictions, particularly their chance of being employed with the convictions they have. DET will also arrange a pre-application review of criminal history where appropriate; for example, reviewing a convicted person who wants to know if they will be acceptable to go to university to study teaching.

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

Juvenile offences are often perceived as an indication of an unstable upbringing and will inevitably influence an employer's decision where other applicants of similar calibre without a record of juvenile offences are available. DET in the past has not employed applicants with juvenile convictions for sexual assault, irrespective of their demonstrated good record since the conviction. This stance, however, is currently under review.

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

The Department recognises that due to certain circumstances, Indigenous people are more likely to be the subject of convictions and imprisonment than their non-indigenous counterparts. Although special consideration is offered to applicants of indigenous background there are, however, a number of practical difficulties that can impact on their prospects for employment. These include:

difficulty in understanding legal terminology encountered in the application for employment and consent to a criminal record checks forms; for example, understanding the intricacies of Commonwealth and State spent convictions legislation as it applies to them;
difficulty in responding to requests for statements or explanation about convictions. The Department offers an opportunity to clarify certain aspects about convictions. If the circumstances involved fall within certain criteria, it may lead to a successful employment application. The Aboriginal Legal Service has been actively assisting in this area, but its resources are stretched. DET school principals and community elders are involved where possible. Their recommendations are highly regarded;
the affect of a one-off conviction for violence, which is considered by DET as a serious offence, on people who are generally highly regarded in the local community; and
the effect of rumour mongering. Indigenous people seeking employment are often swayed by local rumours. In remote areas, for example, Indigenous people often do not apply for DET positions because they erroneously believe that DET categorically does not employ people with convictions.

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

Employers are responsible for meeting the objectives of their organisations and in doing so would consider the risks involved in employing persons with criminal convictions. There is a perception that these people are more than likely to re-offend and thus if employed would tarnish the reputation of the organisation with resultant financial repercussions. For some employers this perception is the result of personal experience.

The Department, despite doing its best to give applicants with a criminal record an employment opportunity, has as its first obligation ensuring the safety of children in education facilities. DET cannot risk employing persons whom it considers would pose a danger to its students.

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

The following strategies may help address stereotyping of people with criminal records in the workplace:

more education programs for the general public;
better intervention programs to reform offenders that will give the public more confidence that offenders will not re-offend;
decriminalisation of inappropriate minor offences;
more appropriate intervention programs for potential offenders;
ongoing development of support agencies in the community to assist offenders back into the workforce.
provision of a national spent convictions scheme that recognises the needs and rights of employers and offenders: and
easier process to have convictions spent.

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

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

State and territory protective legislation appears generally inadequate or non-existent. Existing protective legislation should be standardised across the nation to avoid conflict from state to state. For example, the inherent exception requirements of the Spent Convictions legislation should be made standard across the nation, otherwise the resulting variance in interstate employability and discrimination complaint resolution will be ineffective.

Spent convictions schemes must recognise the rights and needs of employers and applicants. DET is currently raising legislative amendments to allow access to all spent convictions in line with the recommendations for the protection of children emanating from the Bichard Report in the United Kingdom.

It is important that there is a balance between the Department's and applicants' needs. The Department is about protecting students as its primary concern, not being a second chance employment agency for criminals. It must be remembered that they are convicted by a judge and jury. This is not about discrimination by student safety.

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?

It is considered important to resist the temptation to make draconian uniform legislation. It is better to have comprehensive guidelines and education and not remove the decision-making from employers. Ultimately, the final decision belongs to employers.

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

An appeals process similar to that provided for racial or other forms of discrimination would provide people with a means dealing with discrimination. Remedies should not generally result in draconian pecuniary disadvantage or, alternatively, forcing employers to employ people with criminal convictions indiscriminately. It is considered that the eradication of criminal record discrimination is better served by an educational and conciliatory approach and employees having a clear process so that they understand why the decision was made. More serious action is required, however, where anti-discrimination legislation is blatantly ignored; for example, employment is refused based on spent conviction information where the employer does not have exemptions to the provisions of spent convictions legislation or based on hearsay, not fact.

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?

It is difficult to prove that a person with a criminal record is discriminated against when there are many other factors relevant to the selection process. Even if a claim can be proved, there is little incentive for the claimant to want to work for an employer who has a perceived bias. It is of concern that the effectiveness and credibility of available anti-discrimination processes are eroded by many examples of unsubstantiated claims of discrimination. Such action does not help genuine discrimination cases.

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 the police?

The rules for release of information are, in many cases, complex and may differ across states in Australia, leading to confusion among employers and employees alike. Current variations in state legislation in the area of spent convictions are being addressed with proposed model uniform legislation, DET has participated in developing this.

The Department attempts to communicate clear details about access to and the use of criminal record convictions information. For example, the Department's application for employment form provides explanatory notes concerning the type of information that will be released in each case. DET also provides a help service for applicants requiring interpretation of legislation.

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

The Department requests a general review of an applicant's criminal record and when a criminal conviction is disclosed requests further information regarding the circumstances leading to the laying of charges.

Increasingly agencies, particularly in sectors involved with children, are demanding details of all criminal history and any other information available, to ensure the integrity of applicants. This is exemplified by the recommendations in the recent Bichard Inquiry Report which recommends all information from the police and other agencies, such as family service providers, should be available to any employers charged with making a suitability decision where working with children is involved.

Large organisations would find it difficult to obtain details of specific convictions relating to different categories of employees in their agency. Administratively, this would place an added burden on the employer, record keeping agencies and police jurisdictions.

Spent convictions legislation allows release of specific convictions for organisations entitled to exemptions under the Spent Convictions Act. DET currently has a partial exemption in relation to offences against children, however, amendment to the legislation is currently being sought to allow DET access to all offences.

Employers are more likely to employ applicants with a criminal history if they know they have all the information. Access to only specific information will preclude an informed decision and may disadvantage applicants in marginal cases.

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

Difficulties experienced by the Department include:

processing delays caused by delayed responses from some police jurisdictions. This problem is currently being addressed;
instances where criminal records have been erroneously attributed to applicants, due to having a similar name, date of birth and other details. All these instances have been satisfactorily resolved, however, in two cases fingerprints were required of the applicants;
obtaining overseas criminal record checks often has to rely on immigration checks. In many countries there is no police clearance system. Where overseas checks can be obtained, employees can be discriminated against because of differing law systems and conviction definitions; and
obtaining further information, such as the events leading to the laying of a charge, from interstate police jurisdictions. The only way to get some interstate information is by Freedom of Information requests. This is time consuming and delays the employment decision.

Some employees demand to see their criminal history, however, DET is not authorised to disclose it, and must use the history only to make an employment decision.

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

The Department is not authorised to obtain criminal history without an individual's consent. Written consent is required and sought before every criminal record check. Audits by the CrimTrac Agency are regularly undertaken to ensure compliance in this regard.

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?

In the education sector most employees work with or near children and the Department is concerned if an applicant has displayed conduct in the past that is prejudicial to the welfare of children or to others responsible for those children. Examples of such convictions are indecent dealing, drug trafficking, bestiality, assaults and wilful exposure. Some offences against children are perpetrated by a particular type of offender who is most unlikely to reform. The pernicious recidivistic trait of a paedophile leaves no alternative to outright refusal of employment near children.

Other convictions such as stealing, fraud, possession/use of illegal drugs and creating nuisance, although not specifically dangerous to children, would indicate to DET a type of character not conducive to the good standards required for the influence and education of children.

A criminal record may be relevant not only to the type of work to be undertaken, but also to a person's general character where trustworthiness and other desirable character traits are being considered. For example, it may be relevant to employment in sensitive areas such as confidential record keeping, Information Technology, and finance. Fraud and stealing convictions are certainly relevant to employment in financial areas of organisations.

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

Generally, a criminal record is not relevant to persons not involved in a duty of care situation.

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

Full or partial exemption from spent conviction schemes can disclose irrelevant criminal history about some employees. While it is imperative that the Department accesses details of spent convictions relevant to child safety it does have access to other spent convictions which may not be relevant to children. Although helpful in establishing a person's general character and pattern of behaviour it should be respected as spent.

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

The Department is not aware of any such situations.

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?

The Department seeks information from relevant agencies such as the Privacy Commission, Human Rights and Equal Opportunity Commission and specific legal advice from the WA State Solicitors Office on such matters.

It is considered that specific guidance should be more readily available to employees and employers. Such guidance should be relevant, applicable nationwide and understandable for the general public.

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

All relevant information should be made available. The reason why details that cannot be provided due to the specific requirements of a position should be explained when the job is advertised and at the start of the interview.

The Department has a set of criminal convictions considered relevant in terms of the duties of its employees which is used to determine suitability. This information is available on request. DET also provides a telephone enquiry service for persons seekin further information.

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

Persons refused employment by DET have access to internal appeal mechanisms and the option to lodge an application to the Western Australian Industrial Relations Commission.

The adoption of recent Working with Children (Criminal Record Checking) Act 2004 in Western Australia will bring with it certain barring convictions which may be determined as non appealable.

Appeals may also not be available to teachers with barring convictions seeking registration under the Western Australian College of Teaching Act 2004.

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

There have been some cases in the past where employment was refused due to the rigid application of the Department's criminal assessment criteria. On reflection more consideration should have been given to the circumstances involved in each case.

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.

The Department does not register or license persons as such. However, in the case of employment, individual assessments are conducted.

Questions for Employers

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

The Department expects employees to identify all disclosable criminal history. Information about undisclosable spent convictions is not required.

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

In situations where convictions have been identified for an applicant for employment and the convictions breach DET's inherent requirements, details leading to the charge of the person are obtained from the police. If an employment decision cannot readily be made with this information the applicant is requested to provide more information about the offence and any mitigating circumstances involved. The applicant is able to provide two references from people who are aware of the offences. If the applicant refuses to respond a decision is then made on the information available. The process focuses on obtaining as much information as possible before making a decision.

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

A successful applicant is advised in writing of the decision to employ them and a warning is included about failing to disclose criminal convictions. It is recognised that some people cannot recall details, or genuinely believe the convictions have been spent and these cases are treated accordingly. However, where it is obvious that a person has deliberately misinformed the Department about their record and can be proved it could lead to a refusal of employment, particularly in marginal cases.

Where a person, based on their criminal record declaration, has been given employment before a criminal record has been processed and are subsequently found to have convictions, they can and have been dismissed. Generally, this only applies if the convictions breach DET's inherent requirements.

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

It is essential that all staff involved in the screening process are fully informed about the relevant legislation and processes involved.

All employment decisions concerning applicants with criminal history are reviewed by the Department's Screening Committee to ensure compliance with legislation. The Screening Committee comprise of senior DET staff that are fully versed in associated legislative and procedural matters.

Questions for applicants/employees

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

The Department once refused an applicant who volunteered information concerning an offence that was dealt with by a military court overseas. The applicant lodged a successful internal appeal against the decision.

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?

The Department has experienced many cases where criminal history has not been revealed. Reasons vary but generally focus on claims of being unaware or inability to recall conviction. Examples of comments include, "thought they were spent", "forgot", "can't remember", "the judge must have changed his mind", "the lawyer said it was spent at the time", "the lawyer said he would get it spent for me" and "it wasn't me, it was my sister".

Dishonesty weighs heavily against an applicant in marginal cases unless it is deemed a genuine excuse. DET has in the past been more likely to give persons the benefit of the doubt where convictions are of a minor nature.

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

DET has many instances of applicants not responding to requests for written information about criminal convictions. Applications for employment by those who refuse to respond are processed without the benefit of the applicant's input.

Questions for discussion

Questions for employers

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 Department has developed a policy, procedures and guidelines document that directs processes involved in criminal screening. In addition, guidelines have been developed based on previous case examples that help to determine the relevance of offences in relation to the protection of students and other vulnerable persons. A criminal history assessment guide is also used by the Department's Screening Committee for assessing criminal history based on previous cases. Additional information is sought on a case-by-case basis to ensure a safe decision is made; for example, drug testing, obtaining police details of the events leading to the laying of the charges and obtaining court transcripts DET also refers to the outcomes of previous similar cases when it is necessary.

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

An electronic handbook, that can be regularly updated summarising relevant legislation such as privacy legislation, human rights and other relevant documentation would help to inform employers and the general public.

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

DET is aware that the treatment of applicants for employment in schools with carnal knowledge convictions varies from state to state. This is a barring conviction in Victoria, but treated on a case-by-case basis in other states. In NSW it is barred but an exemption from the Act can be obtained through the courts. In states where carnal knowledge convictions are barring convictions there is no flexibility in dealing with recently discovered less serious carnal knowledge convictions such as very old convictions where age difference was minimal and marriage followed.

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

Applicants who are refused employment because of a criminal record check have access to an internal appeals process.

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

The Department does not produce any training materials on these issues.

Questions for Applicants/Employees

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

The Department provides some advice on the Criminal Record Consent Form that applicants are required to complete, and a contact number is displayed for further enquiries.

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

The Department is not aware of any such examples.

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

Applicants should be afforded an opportunity to explain the circumstances surrounding their criminal record. This information is useful to assist in evidence based decisions. This does not apply where the conviction breaches the Department's inherent requirements or is a barring conviction under legislation.

7 (i) Do you have any examples where dishonesty has resulted in dismissal even when the criminal record is not relevant to the job?

The Department has not experienced such a situation.