Human Rights and Equal Opportunity Commission Website: Human Rights

DISCRIMINATION IN EMPLOYMENT ON THE BASIS OF CRIMINAL RECORD

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Submission No. 65 - Corrections Victoria

Submission from KELVIN ANDERSON, Commissioner

Dr Sev Ozdowski OAM
Human Rights Commissioner
GPO Box 5218
SYDNEY NSW 2001

Dear Dr Ozdowski

I refer to your correspondence of 13 December 2004 seeking input in relation to the Commission's examination of discrimination in employment on the basis of criminal history.

I attach comment from Corrections Victoria regarding issues pertinent to the recruitment of correctional officers in this state.

Susan Newell of your Office has advised that an extension for comment has been offered until 4 March 2005 and thank you for this latitude. A draft copy of the attached comment has already been sent to the Commission on 4 March by facsimile.

If you require any further information regarding matters raised in the attached document, or seek further details, please contact Joe Erftemeyer, ( 03 9627 6614 or by email, joe.erftemeyer@justice.vic.gov.au

Thank you for your invitation to comment on this matter.

Yours sincerely

KELVIN ANDERSON
Commissioner
Our Ref: je CD/05/11534 CF/05/2523

Comment on the Discussion Paper of December 2004 prepared by the Human Rights and Equal Opportunity Commission

Background

Corrections Victoria (CV) has an interest in this topic for two reasons.

Because the absence of a criminal history (other than juvenile or minor matters) is an important consideration in the engagement of staff, in particular correctional officers.
Secondly, because it can impact on offender rehabilitation by making it more difficult to gain employment after release. In regard to this aspect CV is aware that JOB futures has made a separate submission and consequently no separate comment will be provided.

Recruitment of Correctional Officers

CV's policy on the recruitment of correctional officers dates from the early 1990s and was drafted following criticism of the former Office of Corrections at a Coroner's Inquest, that the employment of some prison officers with a criminal history had been tolerated. This policy identifies the offence categories which will automatically disqualify a person from becoming a correctional officer, and those matters which may impact upon employment as a correctional officer. A copy of this policy is attached.

The general principle governing this policy is that the ability of a person to perform correctional duties will be prejudiced if they have a criminal history, irrespective of when the offence or offences were committed. Because correctional officers are required to personally manage prisoners on a daily basis, it can detract from their ability to supervise if it is perceived by inmates that staff also do not respect the rule of law, and are essentially no different than the prisoners they are required to manage. Under these circumstances, there is likely to be an unacceptable breakdown in the effectiveness of correctional officers, for example, when required to give a prisoner a lawful order and ensure compliance. Prison discipline would consequently suffer.

The same consideration applies to community correctional officers, who supervise offenders in the community and are regularly called upon to direct offenders in regard to a wide range of matters. Furthermore, the same policy is applied to support staff in both prisons and community corrections centres. This is because these staff will, in most instances, also have access to prisoners and offenders, and may also be required to access the offender database. The latter contains a wealth of sensitive personal information and the integrity of users is a factor in preventing misuse.

Persons who have committed offences may also be placed under greater pressure by prisoners in situations where their background becomes known, especially where this has resulted in imprisonment. Prisoners may feel that such individuals may be prepared to engage in further unlawful activity, and may exert pressure on them to engage in activities such as the trafficking of contraband into, or out of a prison.

There is also likely to be an increased risk of criminal infiltration of correctional officer ranks if persons with an offence history are recruited.

Application Process

When applying for a position as a correctional officer, both with prisons and community corrections, applicants are instructed that they must declare all offences (other than parking offences) during the application process. Where there is any doubt, they are advised to declare the matter. They are also advised that they must consent to a criminal history check to verify the information provided. If the applicant refuses to consent, their application will not proceed. Where the criminal history enquiry reveals that an applicant has not been honest and truthful in regard to their history, that person may not gain employment despite the actual offence not necessarily incurring automatic disqualification. This is because CV considers the qualities of honesty and integrity to be as important as the absence of an offence history itself.

Criminal history checks for potential correctional officers are a condition of employment and are conducted via Victoria Police, and VicRoads in relation to motor vehicle offences. The consent of the individual concerned is always obtained. The check for prison correctional officers involves a national police and fingerprints search, while the enquiry for community correctional staff involves a national name check only. Where a correctional officer is charged with any offence after their appointment, they are required to report this to their immediate manager. If subsequently found guilty, depending on the nature of the offence and the sentence handed down, the officer may be dismissed.

This Office has an agreement with the police that the outcomes revealed by the national name check, and the national fingerprint check will include all findings of guilt, in both adult and juvenile jurisdictions, no matter how old. The offence history policy is then applied to any outcomes. All staff employed by Corrections Victoria, any contractors and volunteers employed at locations, and staff at the two privately operated prisons must comply with the offence history policy.

The application of the current policy for a period of over ten years has resulted in a service which has achieved general community respect and, other than isolated incidents, has been able to steer clear of allegations of staff impropriety or corruption. Where isolated incidents have occurred, and officers have been found guilty of serious matters, they have been dismissed as a consequence of their unlawful activities.

The discussion paper refers to the "inherent requirements of a job" and raises the question whether these requirements should be tightly linked to the assessment of any criminal history outcomes. It is the view of CV that the nature of the corrections environment is such that only persons who demonstrate a high level of integrity should be employed, irrespective of the nature of the work. But having said that, there may be scope for persons who are being recruited for administrative support roles and who have recorded a finding of guilt offence at the lower end of the scale some time ago, to be considered for employment if they are able to demonstrate a high level of integrity in a different way.

Review of decision not to employ/dismiss

CV does not have a formal system for the review of decisions not to employ, or to dismiss a person on the basis of their criminal history. However, where an applicant is aggrieved, they are advised that they may write to the Commissioner, Corrections Victoria. The Commissioner will consider the full circumstances of the case, seek advice where necessary, and determine whether any discretion is warranted. Unless the applicant pursues action through the courts, there is no redress.