DISCRIMINATION IN EMPLOYMENT ON THE
BASIS OF CRIMINAL RECORD

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Submission No. 90 - Australian Public Service Commission

Ms Karen Blake
Director, Indigenous Employment
Better Practice Group
Email: karen.blake@apsc.gov.au
Tel: (02) 6272 4264

The Australian Public Service Commission (the Commission) welcomes the current research by the Human Rights and Equal Opportunity Commission into discrimination in employment on the basis of a criminal record. The Discussion Paper is helpful in pulling together the issues and current state of the case-law and will be a valuable resource.

The following comments are aimed at ensuring that any final report provides a fair balance between the interests of employers - in particular the public interest in the effective performance of the work of the Australian Public Service (APS) - and the interests of potential applicants for APS employment, particularly Indigenous persons.

These comments include:

1. Background on the Commission's interests in this issue.
2. When criminal records may be relevant to APS employment
3. Comments on a number of issues raised in the Discussion Paper
4. Reference to various Australian Public Service Commission and other Commonwealth publications that may assist HREOC's current research.
5. Suggestions as to measures that might assist employers and potential job applicants

1. Background

The Public Service Commissioner has a number of statutory responsibilities, as set out in section 41 of the Public Service Act 1999 . These include:

promotion of the APS Values and Code of Conduct;
evaluation of agencies' application of the APS Values and Code of Conduct;
development, promotion, review and evaluation of APS employment policies and practices;
facilitation of continuous improvement in APS people management; and
contributing to, and fostering, leadership in the APS.

The APS Values include merit, providing a workplace free from discrimination and providing a reasonable opportunity to all eligible members of the community to apply for APS employment. Areas of potential discrimination, such as the impact of a criminal record on employment decisions, are therefore of interest from a service-wide perspective.

The legislative framework for employment decisions in the Australian Public Service is set out in the Public Service Act 1999 , Public Service Regulations and Public Service Commissioner's Directions. This framework applies to all APS employees, regardless of whether they work in Canberra , in regional offices throughout Australia or overseas.

Responsibility for staffing decisions, including recruitment, promotion, investigating breaches of the APS Code of Conduct and termination rests with agency heads. Agency heads are responsible for developing their own human resource policies, procedures and forms.

Particular issues in relation to Indigenous employment

Recently the Commission has been asked by the Government to play a lead role in promoting Indigenous employment within the APS. The Commission notes the potential for discrimination of this sort to have an indirectly proportional impact on Indigenous employees and prospective employees, in light of the over-representation of Indigenous people in the criminal justice system.

The Commission's ongoing work on its Indigenous Employment Strategy recognises that this is one of a complex of factors that contribute to the comparatively low employment outcomes for Indigenous people. The Commission's evidence affirms the statement in the discussion paper that people with a criminal record often face perceptions of dishonesty, unreliability, irresponsibility or undesirable character. For many Indigenous Australians, this compounds other negative stereotypes.

In addition, it is possible that, regardless of agency practices, persons with criminal records may have a perception that they will not be considered, and so may choose not even to apply for employment.

2. When criminal records may be relevant to APS employment

There are three broad ways in which criminal records may be relevant to APS employment:

At the stage of recruitment to the APS
All security clearances require a police records check
A breach of the criminal law 'when acting in the course of APS employment' is a breach of the APS Code of Conduct (s. 13(4) of the PS Act); conduct engaged in after hours including conduct leading to a criminal conviction may involve a failure to 'at all times ' uphold the APS Values and the integrity and good reputation of the APS' (s. 13(11) of the PS Act.

As the bulk of the complaints received by HREOC relate to discrimination in obtaining employment, these comments focus just on when it is appropriate to have regard to criminal records in the context of engagement of a person in the APS.

There is no legislative provision that automatically excludes a person with a criminal record from APS employment. However section 22 of the Act allows an agency head to require character clearance and/or security clearances as a condition of engagement. These checks may occur prior to or following engagement. Where a condition relating to a character and/or security clearance operates after engagement, an employee's employment may be terminated under the Public Service Act for failing to meet the condition. The practical application of this is that where a criminal conviction can be shown to be relevant to the specific requirements of an employment opportunity it may be taken into account and, depending on its circumstances, may lead to an offer of engagement not proceeding or termination of the employee's employment.

Each APS agency is responsible for deciding its own requirements and developing its own procedures, to meet individual operational requirements, subject in the case of security clearances, to the Commonwealth Protective Security Manual 2000 (PSM) . More detail is set out in the Commission's publications Conditions of Engagement [add link] and Ongoing Employment - Recruitment and Related Issues [add link]. Relevant references to these publications are set out below.

3. Broad comments on the discussion paper

Inherent requirements 'of the particular job'

The Commission notes the over-arching principle that criminal records should only be taken into account in employment decisions where the particular conviction is relevant to the inherent requirements of the particular job, as this principle has been interpreted by the courts and HREOC. This principle is emphasised by the Commission in its recently-released publication Conditions of Engagement , which is available on the Commission's website at www.apsc.gov.au .

However the expression 'the inherent requirements of the particular job' is a term of art in international conventions and anti-discrimination law and does not have its ordinary English meaning. There is therefore considerable potential for misunderstanding if any guidelines are framed in this language, unless the special meaning of this expression as it has been interpreted by the courts is spelt out.

In particular, there is scope for the term 'particular job' to cause confusion, particularly in an Australian Public Service context. The term 'job' is commonly used within the Australian Public Service to refer just to a particular position. This creates the danger that the expression 'the inherent requirements of the particular job' might be understood narrowly, for example, to refer only to the requirements that are particular to a specific job at a particular point of time - for example as set out in a job specification that sets out the work to be done.

However, Cosma v Qantas Airways Ltd [2002] FCAFC 425 (20 December 2002) makes clear that the expression 'particular job' has a wider meaning:

The expression describes the actual employment which the relevant employee was required to perform pursuant to his contract of employment. Some employees may be employed to perform specific duties. Others may be employed to perform unspecified general duties, depending upon what needs to be done at a particular point in time. There will also be cases in which a person, who was originally employed to perform particular duties, will come to perform quite different duties as the result of an express or implied variation to the contract of service.

The APS is a career-based service (APS Value 10((1)(n), even though specific duties are assigned to employees on engagement. The Agency Head has the power to determine, from time to time, the duties of an APS employee and the place or places at which they are to be performed according to changing priorities.

Part D of the Commonwealth Protective Security Manual also notes, when encouraging agencies to focus on the duties and tasks rather than the position when deciding whether a security clearance is needed, that the nature of an individual's, or area's, work can change significantly, often over short timeframes.

Thus a more appropriate way to look at the issue of inherent requirements of the particular job in an APS context is that there may be several layers of such requirements:

Matters specific to a particular 'job'. For example Part D of the PSM notes that some people have authorisations or duties which, if mishandled, may cause an agency considerable harm or loss of reputation. The PSM states that examples of such duties might include access to, or control of, large amounts of money, drugs, valuable equipment or information technology (IT) systems or contract management.
Generic requirements that apply to all staff in particular roles or in a particular work area - for example, a requirement for a certain level of maturity or emotional intelligence in order to be able to deal with difficult customers
Matters that are implied elements of the employment contract - such as the duty of trust and confidence. Under the APS legislative framework, APS employees are bound at all times to behave in a way that upholds the APS Values and the integrity and good reputation of the APS. The APS Code of Conduct includes behaving honestly and with integrity, care and diligence, treating everyone with respect and courtesy and using Commonwealth resources in a proper manner. The APS Values provide, among other things, that the APS provides a safe workplace, and agency heads and employees have related obligations under the Commissioner's Directions.

Thus, even when looking at the inherent requirements needed to perform a particular "job" in the APS, there are not only "job"-specific but more generic requirements to which a criminal record may sometimes be relevant. This approach seems consistent with the approach taken by HREOC in the cases summarised in the paper.

Thus in developing any guidance materials, it may be desirable to clarify the expression 'particular job', by adding some explanation not only of inherent requirements but of this expression as a whole, making clear that the requirements of the 'particular job' are not just those particular to that job but can include more generic requirements such as honesty.

Another point that it may be useful to highlight is that in many contexts - such as most APS contexts - it is not an inherent requirement for particular duties that a person not have a particular type of criminal conviction. Rather, qualities such as maturity, responsibility (including financial responsibility), honesty and so forth may be inherent requirements of particular duties, for example these are required in order to obtain a security clearance. When making an overall assessment of whether a person has these qualities, criminal convictions may be relevant. However, in assessing the relevance of a conviction, it is not just the fact of the conviction that is relevant but factors such as its nature, seriousness, circumstances, recency, the age of the person and whether it was a one off incident or part of a series. (For more detail see the Protective Security Manual).

The merit Value, as set out in s. 10(2) of the Public Service Act, is the fundamental basis of any selection decision. Agencies can require character and/or security clearances where these are relevant to the duties. Each agency will know its own human resource requirements best, and is therefore best placed to determine the type and level of it requires. In its publication Conditions of Engagement , the Commission provides guidance on the seeking of character and security clearances. Anecdotal evidence suggests that certain agencies, due to the nature of their work and personnel or national security implications of any potential breaches, seek much more stringent clearance procedures.

The Commission notes that there may be circumstances in which a person is engaged in one area of an agency where their criminal record is not an issue, but where it may be an issue in relation to them being assigned certain other duties or working in other parts of the organisation. This may have implications for the ability of agencies to move employees between duties to meet operational requirements and the development needs of individual employees. This could sometimes be a relevant factor when an agency is making a decision on whether to engage a person with a criminal record.

Spent convictions

The Commission notes the details of the various Spent Convictions Schemes, and particularly that the schemes differ between States and Territories. As a large national employer the Commission would welcome greater standardisation of these schemes.

The Commission recognises the need to ensure that some convictions remain unspent. However such convictions should only be taken into account where they are relevant to the person's ability to meet the inherent requirements of the particular duties (for example where they require a very high level of security clearance).

What must actual or prospective employees disclose about their criminal record when asked?

The material in the HREOC discussion paper on the rights and obligations of employers and employees is very useful.

A particular issue that sometimes arises in the APS context is where a person is asked to fill in a Personal Particulars form disclosing any current or previous criminal charges or convictions but the person is only charged afterwards with a criminal offence, or provides false or misleading information.

The Commission, in recent publications, has suggested that agencies may wish to advise prospective employees that the Criminal Code Act 1995 creates offences relating to the provision of false information or documents.

4. Material about how criminal records and Commonwealth employment

The Australian Public Service Commission has produced a number of publications which touch on the issue of criminal records. The relevant references are set out below.

Conditions of Engagement sets out general principles about imposing conditions of engagement. In particular at pages 14 and 15 it sets out material on the imposition of conditions to undertake a security or character clearance. The discussion of character clearances addresses a number of issues canvassed in the Discussion Paper for example when it is appropriate to impose such a requirement, the process of collecting information, and relevant factors in deciding that a conviction means that an applicant is not fit to perform particular duties.

Ongoing Employment - Recruitment and Related Issues. See in particular

page 15, conditions of engagement
page 18, which states that obtaining or maintaining a specified security clearance may sometimes be an essential qualification to perform particular duties
page 21- notification of any essential qualifications and conditions of engagement
pages 24-25- collecting employment information: discusses the collection of information about criminal convictions or pending charges
page 30: conditions of engagement and pre-employment checks
page 31: notice of engagement
pages 59-67: sample letter and notice of engagement for an ongoing APS employee. These contain a few suggestions as to the framing of conditions of engagement relating to character and security clearances.

There are a number of other relevant Commonwealth frameworks. Your Discussion Paper refers to the Information Privacy Principles. In addition to these, Part D of the Commonwealth Protective Security Manual 2000 issued by the Attorney-General's Department sets out the framework for personnel security assessments. The National Australian Archives Administrative Functions Disposal Authority sets out minimum retention periods for various classes of personnel records including security checks and character checks at the time of engagement. Full details can be found at http://www.naa.gov.au//disposal/authorities/GDA/AFDA/html

5. Measures

The case studies in the Discussion Paper suggest that there are a number of areas where it might be helpful to develop guidance for employers and potential job applicants:

There is a need for a clear explanation of 'inherent requirements of the particular job' - which makes it clear that these do not just refer to the requirements of the particular tasks to be performed but can include broader factors such as maturity, honesty
If employers were encouraged to initially select on merit and only conduct police checks once they have identified a preferred applicant, this would reduce the chance of a person's application not even being considered because they have a criminal record
Employers could be encouraged not to exclude people just because of the fact that they have a criminal conviction/certain type of conviction per se - but rather to treat a conviction simply as evidence to which they need to have regard when assessing whether the person meets the inherent requirement of the particular job
Good practice guidance on what to do if a check reveals a conviction eg the need to give the person an opportunity to comment on the circumstances and any mitigating factors; also guidance on relevant factors in assessing the current relevance of the conviction to the inherent requirements of the duties in question
Guidance on what information a prospective employee is required to disclose - including making it clear to job applicants that making false or misleading statements could lead an employer not to engage them or, if discovered after employment, could lead to the termination of their employment.
In the context of Commonwealth employment, observance of the Information Privacy Principles under the Privacy Act 1988 is an important safeguard against information about an employee's criminal record being inappropriately used or disclosed for other purposes than those for which it was collected.

Contact

Should the Human Rights and Equal Opportunity Commission which to discuss further any of the matters raised in this submission, the Australian Public Service Commission contact is: