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DISCRIMINATION IN EMPLOYMENT ON THE BASIS OF CRIMINAL RECORD

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Submission No. 87 - Northern Territory Department of Health and Community Services

WHAT DO DISCRIMINATION LAWS SAY ABOUT TAKING A PERSON'S CRIMINAL RECORD INTO ACCOUNT IN EMPLOYMENT?

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

Yes, the NT Anti-Discrimination Act 1992 provides sufficient protection against discrimination, particularly Section 26 where it is prohibited to seek information from another person which discrimination might be based.

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

Re-employment and/or compensation. Care must be taken however because in many circumstances it is fair to view a criminal record even where not strictly relevant to the particular position as relevant to the general character of the prospective employee. Character is often an important ingredient in a good employee.

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?

In the NT the difficulties are ameliorated by the specific provision in the Act.

WHAT DOES A CRIMINAL RECORD INCLUDE?

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

The Department of Health and Community Services (DHCS) will have detailed draft guidelines that will be promoted to staff and Branch Heads, which will contain this information. Training will also be provided to Branch Heads responsible for receiving Criminal History Checks (CHC) to give them the skills and knowledge in assessing which categories of information that may be included or excluded in the CHC provided by police.

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

Two types of "Authority to Release Criminal History" forms are available from the NT Police, depending on the requirements of the position:

PF165 - for positions not working with vulnerable persons
PF166 - for positions working with vulnerable persons

Both forms will enable the NT Police to check criminal records, or other information held from interstate police services, releasing details of all convictions for the past ten years (five years for juvenile offences) and any other convictions if there is not a ten year clear break (five years for juvenile convictions) recorded against the name of the applicant.

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

DHCS' Draft Policy and Guidelines specify that jobs that are assessed as requiring a CHC need to have the following wording " the successful applicant must have pre-employment screening which includes a CHC. Only criminal history relevant to the specific requirements of the job will be considered in determining your suitability for appointment" in job advertisements and job descriptions.

The forms provided by NT Police require the signature of the person for whom a criminal history check is sought before releasing any information to an employer.

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?

The DHCS draft Policy and Guidelines state that Branch Heads are responsible for assessing whether seeking a CHC for all positions prior to advertising is relevant, based on level of risk of duties performed of the position, eg care of vulnerable persons, fraud/financial responsibility.

Occupations where trust, money and enforcement are involved require honesty (Accounts, Personal Assistants, people who work with the elderly or vulnerable, Police, Security Officers etc). Matters involving dishonesty on a criminal record suggest the person is unsuitable.

Occupations near drugs or requiring reliability (Pharmacy, people who work with children, the elderly or vulnerable, Police, Security Officers, drug enforcement, hospital workers). Matters involving drug offences suggest the person to be unsuitable.

Occupations that require composure under pressure from other people (Nursing, Police, Security Officers, Public Relations). Matters involving violence offences suggest the person to be unsuitable.

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

Administrative work where there is no confidential information or financial responsibility involved and process work where there is sufficient supervision.

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

To date, no CHC have been required that are not necessary, however, it is possible that checks could be required when unnecessary.

5(d) Are there examples of licensing, admission or registration rules that go beyond the inherent requirements of the position? 44 A Solicitor v The Council of the Law Society of New South Wales [2004] HCA 1 (4 February 2004). 27 Consider the following questions in your particular field of employment:

Licensing, admission or registration are in a different category. Political correctness should not extend to requiring organisations, professions or other regulated body to alter their entrance requirements because of a view that criminal records should no longer carry community censure they once did.

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 draft DHCS Criminal History Check Policy advises only applicants with criminal records that are deemed relevant to the position will not be considered for employment. Relevance is based on the potential risk to employ in relation to the nature of the work involved in the position. It is critical that the decision to employ/not employ an applicant is justified on the basis of relevance.

The following generic areas are relevant to most positions:

crimes of violence;
sex related offences;
serious drug offences;
crimes involving dishonesty.

Persons convicted of sexual offences against children or other vulnerable people, such as people with a physical or intellectual disability, will not be employed or appointed to a position because of its potential risk to health and community services clients.

The draft DHCS Criminal History Check Policy and Guidelines state Branch Heads making the assessment must be fully conversant with the concepts of natural justice, merit, discrimination and what constitutes a relevant criminal record. The assessment process focuses on the relevance of the offence in relation to the nature of the work involved in the position. The draft Guidelines also states that Branch Heads are to liaise with the Director of Human Resources and the Director of Legal Services to obtain advice and assistance if the CHC indicates offences considered relevant to the position.

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

Recruitment forms, and the information they elicit, must be relevant to the duties to be performed, couched in non-discriminatory terms, and based on non-discriminatory practices.

The Chairperson of a DHCS Recruitment Selection Panel is responsible for ensuring that the applicant deemed most suitable in the selection process is fully aware that a CHC is essential for the offer of employment to be made and finalised. Applicants should be made aware that having a criminal record does not automatically exclude them from appointment.

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

The Supreme Court has jurisdiction where there is a denial of procedural fairness or inequity. The Tribunal and the Courts have jurisdiction if such disqualification arises through discrimination.

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?

None of the NT Health Practitioner Boards require a criminal history check as a requisite for initial registration or annual renewal of registration.

The NT Licensing Authority does require that a person is of "good character" - (s22 (1) (f) Health Practitioners Act. All applicants are to:

declare that they have not had their name suspended or removed from a register or been refused registration for any reason relating to their professional conduct
declare that they do not know of any outstanding matters, current condition or undertaking relating to their registration in any other State/Territory/Country;
declare that they have never been prohibited from or had any special condition imposed on their practice as a result of criminal, civil or disciplinary proceedings;
declare that they have not been charged or convicted of any offence;
provide a written character reference dated within the last 6 months, and
provide a certificate of good standing from a Medical Registration Board that they currently hold registration with or most recently held registration with.

QUESTIONS FOR EMPLOYERS:

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

The draft DHCS Criminal History Check Policy states that Branch Heads are to assess the duties of the position in order to determine if a position requires a CHC. If the position is not working with vulnerable persons a PF165 CHC is required where consideration is given to relevant records. If the position is required to work with vulnerable persons a PF166 CHC is required. This type of check will consider spent, juvenile, pending and offences that are without proceeding to convictions proved.

Under section 13 of the NTPS Principles and Code of Conduct, Public Sector Employment & Management Act, all employees, including employees on leave, transfer and secondment who have been charged, convicted or acquitted of an offence are required to advise the Chief Executive Officer, regardless of whether the offence relates directly to the employee's duties. Employees who fail to disclose an offence may be subject to disciplinary action.

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

DHCS' draft Criminal History Check Policy and Guidelines states that the Job description and job advertisement will require the following statement to be inserted " the successful applicant must have pre-employment screening which includes a CHC. Only criminal history relevant to the specific requirements of the job will be considered in determining your suitability for appointment" in job advertisements and job descriptions.

The draft DHCS Guidelines also states that 'Applicants who refuse to provide a CHC are precluded from the selection/employment to that particular position'.

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

Branch Heads are responsible for making the assessment as to which positions require a CHC. The assessment process focuses on the relevance of the offence in relation to the nature of the work involved in the position. The Authority to Release Criminal History - Including Spent convictions (PF166) form must only be used for positions that are responsible for the care, instruction or supervision of vulnerable persons, including children, aged persons and persons with a physical or intellectual disability or mental illness.

The draft DHCS CHC Guidelines refers to the Criminal Records (Spent Convictions) Act -

Applies to all convictions while a person is in the Northern Territory;
A person is not obliged to reveal any spent convictions and any reference to their criminal history shall be taken to refer only to a record that is not a spent record (Section 11);
Section 15a of the Criminal Records (Spent Convictions) Act - exclusion to Section 11 (above);
A person who takes into account a spent record for a purpose not authorised by or under the Criminal Records (Spent Convictions) Act (Section 13) is guilty of an offence. The maximum penalty is $5000.

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 organization or industry?

The draft DHCS CHC Guidelines clearly document the procedure for examining an applicant's criminal record.

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

The draft DHCS CHC Guidelines states "Both internal and external applicants may request a review within seven days of being advised by the Chairperson of the Selection Panel of the decision not to employ on the basis of their CHC.

Applicants who believe they were discriminated against on the grounds of an irrelevant criminal record, may make a complaint to the Anti-Discrimination Commission under the Anti-Discrimination Act.

All other grievance rights remain for internal applicants.

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

DHCS will have documented guidelines and Branch Heads will be provided with appropriate training. The policy and guidelines will also be available from DHCS' internet site.

OTHER GENERAL COMMENTS:

The Discussion Paper is supported by relevant and insightful case studies, which, of themselves, should assist the NT Department of Health and Community Services in finalising the shape and content of its policy and guidelines in this complex and difficult area (highlighted by the discussion and cases in Parts 5, 6 and 7 of the paper).

HREOC's intention to develop a set of guidelines to clarify the various rights and responsibilities of employers and employees deserves support. Such guidelines would be a useful source of information to decision-makers and others responsible for implementing the Department's Criminal History Check Policy. Such guidelines would be particularly useful because the legislative framework for anti-discrimination legislation (and most legislation for that matter) describes what is prohibited, rather than what is permitted. Determining what conduct may be permitted in different circumstances is often difficult to determine. Guidelines (together with decisions of reported cases) would be helpful in fleshing out the bare bones of the legislation.

It is important to note that in the context of the NT, persons aggrieved by decisions to exclude them from employment with DHCS or Non Government Organisations in the Territory on the basis of their criminal history, have a legally enforceable remedy available through the NT Anti-Discrimination Commissioner. The limitations applicable to HREOC, referred to in Part 3.2 on page 12, therefore have limited effect in the Territory. Whether the HREOC Act should be amended to provide remedies similar to those provided under the Sex Discrimination Act, the Racial Discrimination Act and Disability Discrimination Act of the Commonwealth, is a matter of policy for the Australian Government.

It is evident from the paper that it could be argued that the Territory Anti-Discrimination Act and Criminal Records (Spent Convictions) Act offer the highest levels of protections to employees of the jurisdictions in Australia, of similar standing to Tasmania. This emphasises the need for employers in the Territory to have policies and guidelines in place which clearly set out the principles and processes to be applied or followed in collecting criminal history information and in making any decision to exclude a person from employment on the basis of their criminal history.

In considering which matters may be taken into account when considering a person's fitness to work with children (Part 4 on page 16), it is perhaps worth referring to the provisions of section 37(2) of the Anti-Discrimination Act which limit the circumstances in which otherwise irrelevant criminal history, eg charges, dismissed, withdrawn or discharged. These are limited to situations where the discrimination is 'reasonably necessary to protect the physical, psychological or emotional well-being of those vulnerable persons' including children. The section also highlights the need to consider 'all of the relevant circumstances of the case including the person's actions'. Similarly, the Act follows this theme when assessing the relevance of a conviction or charge for an offence generally to employment. In the definition of 'irrelevant criminal record' in section 4, it is 'the circumstances relating to the offence' and their relevance to the responsibilities of the position which must be considered, not merely the offence.

The discussion in Part 6.2 on page 29 highlights what is the most problematic of the Territory's legislation, ie the prohibition to seek information on which unlawful discrimination might be based (s 26 of the Anti-Discrimination Act). Determining what is relevant in advance of knowing all the information concerning the circumstances of an offence or charge, so as to avoid this prohibition appears to be fraught with inherent difficulties. Part 6.2 suggests that some of these difficulties are overcome by asking 'reasonable' questions, and that withholding information in answer to a question, rather than refusing to answer may provide grounds for subsequent action against a person employed as a result on the grounds of dishonesty rather than their criminal history.

The issues outlined in Part 6.3 about distinguishing between a 'conviction' and a 'finding of guilt' should not arise in the Territory as NT legislation was generally amended some years ago to refer to a criminal record in terms of 'finding of guilt' rather than conviction.

Comments relating to Working with Children Checks

An important consideration was raised in relation to the Working with Children Checks conducted in NSW and QLD. work is currently in progress in the NT to introduce the requirement for screening of people in child related employment as a component of the NT Care and Protection of Children and Young People Act 2005.

Section 5.2 - Persons working with children - reiterates two important principles of ensuring that assessment of a person's suitability is based upon the inherent requirements of a job and that there is capacity for considering suitability on a case by case basis.

The Discussion Paper highlights the NSW and QLD 'Working with Children Check' systems, stating that both systems have addressed these issues in legislation. An 'inherent requirement' of child related employment is ensuring protection of children, thereby excluding those with particular criminal histories. However, allowance is made for assessing individual circumstances.

Whilst details about the NT Working with Children Check scheme are to be finalised, the draft Act provides for the development of Regulations and Guidelines for risk assessment and decision making in particular circumstances, and an appeals process. However, specific provision for the individual to make submissions and be assessed in regards to their ability to work with children despite their criminal history has yet to be included in the final drafting of the Act.

Inclusion of Volunteers

Whilst it has not defined employment (reference is made to the Human Rights and Equal Opportunity and Communion Act 1986), it is implied that it relates only to paid employment.

Volunteers are heavily relied upon in community services, particularly those which work with vulnerable clients such as the elderly or disabled. Such organisations are increasingly becoming aware of the importance of checking criminal histories prior to using volunteers, despite the difficulties this presents the organisation. Whilst there is arguably less trauma than being prevented from obtaining paid employment, there is still the potential for unnecessary and potentially distressing discrimination to occur toward the employee.

It is suggested that the definition of employment should extend to volunteers, if not already included.