Article - How clean is that slate?

How clean is that slate?
by Mark Beech

The Clean Slate Act seeks to give people who have committed a minor crime an opportunity to be considered for employment without being disadvantaged, while still protecting employers. Mark Beech looks at what this means.

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The Criminal Records Clean Slate Act 2004 has been in effect now for little over a year. This legislation means that individuals who have committed certain offences will, in time, appear to have a blank criminal record.

It is clear why the right exists for individuals to have their past put behind them. It is fair and reasonable that people should have the right to a second chance (a clean slate) if enough time has elapsed since their offending.

The legislation aims to create a relationship of good faith between employees and their employers. While the legislation will benefit someone with a minor criminal offence committed a considerable time ago, it does raise issues about how much an employer needs to know about a potential employees past, and how to obtain the information they need without, themselves, infringing the law.

To be eligible for a clean slate a potential employee must have been conviction-free for seven years. Clauses in the Act also take into account the type and severity of the offence, as well as the sentence served, to assess eligibility.

Serious convictions involving time served in prison, such as sexual offences against children, rape and indecent assault, will not be able to be concealed.

Employers may ask questions relating to these criminal records, but cannot require their employees, or potential employees, to admit convictions covered under the terms of the Clean Slate Act. This may result in a fine of up to $10,000 for employers.

This means that someone with minor drug offences, for arguments sake, could be employed in a pharmacy, or someone with minor theft charges could work in a role that regularly involves handling money without either having to reveal their past convictions.

There are exceptions provided under the Clean Slate Act. Individuals applying for particular jobs, including the police force, positions within a prison, jobs relating to national security and Judges, are unable to have even their minor convictions concealed.

Individuals caring for children are also included in this list, but if their sole role is in education of children the exception does not apply and the concealment afforded by the Clean Slate Act remains. This means that primary and secondary school teachers can use the protection afforded by the Act when applying for positions.

With all good faith extended, it is understandable that even less serious convictions may be of concern to employers if they suggest someone may be unsuitable for a particular job.

Employers with specific concerns about their employees backgrounds need to carefully word questions in order to find out potentially crucial information.

Questions such as “Is there anything we should know about your past that may affect your suitability for this job” may solicit the desired information from job applicants without breaching any requirements of the legislation.

Faced with the threat of a $10,000 fine, it is better for employers to seek legal advice and make sure their recruitment process is sound, rather than avoid the subject altogether.