Site navigation

Change font size: SmallerLargerReload

Human Rights navigation

On the record

8 Issues for special organisations

8.1 Licensing and registration organisations

There are an increasing number of professions and occupations which require licensing and registration before employment is possible. Key examples include teaching, nursing, casino workers, taxi drivers and bus drivers. Usually licensing and registration organisations apply specific legislation that requires a criminal check for each individual applicant.

The refusal of a licence or registration by an organisation on the basis of a person’s criminal record may constitute discrimination under the HREOC Act. Even though a licensing board may not directly be responsible for employment decisions, it may be involved in making a distinction which has the effect of impairing employment opportunities on the basis of criminal record.

In order to avoid discrimination under the HREOC Act, licensing and registration organisations should ensure there is an opportunity for an individual assessment of a person’s particular criminal record and the correlation between the criminal record and the inherent requirements of the job as set out in the licensing or registration regimes. This does not necessarily prevent a licensing body from developing criteria concerning the admission of people with certain criminal records. However, licensing rules and regulations ought to ensure that there is an opportunity for individuals to state their case.

Licensing body example

The Queensland Nursing Council issues licences for nurses and midwives in Queensland. Under the Nursing Act 1992, the Council can take into account a person’s criminal history to decide a person’s competence and fitness to practise nursing and whether a person is a suitable person to practise nursing or midwifery. Under the Act, a criminal history means every conviction and charge for an offence in Queensland or elsewhere.

However, there is no automatic disqualification from a licence because of a criminal record. If an applicant discloses a criminal record, the Nursing Council seeks a report from the Police to obtain more information. Applicants are encouraged to supply as much information as possible including certificates of conviction, transcripts of evidence and other court documents. The criminal history is then assessed by the Executive Officer to determine if it falls within a category of matters where the criminal history does not raise any concerns about suitability, fitness or competence of the applicant. The criteria for this decision is set out in a criminal history policy and includes such things as whether the conviction was an indictable offence, whether it was a single incident, length of time since the conviction or charge, and satisfactory references and supporting documents. The matter then may be dismissed at this stage. If not, it is referred to the Professional Standards Committee of the Nursing Council which also considers a full range of information and mitigating circumstances. The applicant is invited to make further submissions to the Council. There are a range of possible outcomes including imposition of conditions on the licence, a further investigation, acceptance of an undertaking, or no further action taken (licence is issued).The applicant then has further appeal rights against a decision.

Further, it may be necessary to take into account the fact that a wide variety of ‘particular jobs’ may exist within a profession. For example, a person with a security industry licence could be a personal bodyguard, a pub bouncer or a person monitoring security videos in a control room. Each of these positions may require a security licence but the inherent requirements of the particular job may be quite different. Therefore it may be necessary for licensing rules to permit some distinction between different jobs within an industry.

As discussed in Section 4.5, although a law may provide for a licensing body to exclude an applicant who is not of ‘good character’, this may not necessarily enable a licensing body to exclude a particular person with a criminal record.

Top

8.2 Employment agencies

Discriminatory practices by employment agencies may give rise to discrimination under the HREOC Act. Employment agencies should not discriminate on the basis of criminal record in their practices even if they are acting on behalf of employers. These Guidelines apply to employment agencies as well as employers.

Should an employment agency request criminal record details from a job applicant?

Whether an employment agency should request criminal record details from a job applicant or not depends on the type of service offered by the agency and its relationship with the employer.

For example, if an employment agency assists job seekers with resumes and interview techniques generally, and there is no relationship with a particular employer, there is no reason why an agency should ask a job applicant to disclose a criminal record. This question can be asked by employers themselves if they consider it necessary.

However, if the job seeker voluntarily discloses details of their criminal record to an agency and asks for assistance with preparing answers to questions about their criminal record, an agency may wish to assist the job seeker with information and guidance. An agency must still be aware of their obligations to maintain the privacy of the job seeker and not disclose any information regarding the criminal record without the consent of the job seeker.

If an employment agency has a closer relationship with employers, that is, it conducts the recruitment process on behalf of employers, the agency may request criminal record details from job applicants in appropriate circumstances. However, this should only occur where:

  • there is a specific job in question, and it has been identified that a criminal record is relevant to the inherent requirements of that job. If there is a legislative requirement that certain convictions be disclosed, for example for the purposes of working with children, then it will be relevant to the job and an agency should inform the job applicant that they must disclose their offences
  • the job applicant is fully informed of the reasons why a criminal record check might be relevant.

If a job applicant does not provide consent for a criminal record check, then an employment agency should not disqualify a job applicant from being put forward to an employer.44 Instead, the agency could inform the employer that consent for disclosure has not been obtained. Employers can conduct their own criminal record check if they consider it relevant, having already had an opportunity to asses the merits of the job application.

Does an employment agency have a legal obligation towards an employer when a job applicant discloses a relevant criminal record?

The more extensive the employment agency’s involvement in the placement of an employee, the greater the likelihood that the agency will owe some form of duty to the employer to ensure that the selected job applicant is suitable for employment in that particular job. However, this will depend on the particular facts of each case and the precise nature of the relationship between the parties.45

If an employment agency has involvement in the placement of an employee, an agency should always advise employers that they should make their own inquiries with respect to recommended applicants.

Can an employment agency apply for police checks with the consent of job applicants?

An employment agency can register with CrimTrac if it processes more than 500 requests for criminal record checks annually. It is still required to provide a consent form from each individual concerned.

Employment agencies can lodge requests for National Police Certificates issued by state, territory and federal police criminal record checking services, as long as they are obtained with the written consent of the individual concerned and are relevant to the inherent requirements of the job.

Notes

44 See Hosking v Fraser, NT Anti-Discrimination Commission. See Section 5.1 of Guidelines.

45 For example, see Monie v Commonwealth of Australia (2003) NSWSC 1141. That decision has now been appealed in the NSW Court of Appeal: 2005 [NSWCA] 25(7 April 2005).

Top
<< Chapter 7 | Chapter 8 | Chapter 9 >>