Sexual Offences Records Checks for Child-related Work: Interim Proposals
On 2 February 2010, the Law Reform Commission published a report on Sexual Offences Records Checks for Child-related Work: Interim Proposals.
In April 2006, the Commission was asked to review the existing sexual offences under the criminal law. The existing law had been criticised because some of these offences are gender-specific, while others are based on sexual orientation. There were also concerns that the existing sexual offences may not adequately reflect the range of non-consensual conduct which should be subject to criminal sanction.
In October 2006, the project's terms of reference were extended to include consideration whether a scheme for the registration of offenders convicted of sexual offences should established. A consultation paper was issued in July 2008, and elicited some 200 responses from schools, organisations and individuals.
The report proposes, the establishment of an administrative scheme to enable employers of persons undertaking child-related work and work relating to mentally incapacitated persons to check the criminal conviction records for sexual offences of employees.
The check would reveal only convictions for a specified list of sexual offences. Convictions that are regarded as "spent" under the Rehabilitation of Offenders Ordinance (Cap 297) would not be disclosed.
In the absence of legislation, employers will not be compelled to carry out such checks, and the application for a record check will have to be submitted by the job applicant himself. The scheme should apply to both existing and prospective employees, but should be implemented in stages, with only prospective employees covered in the initial phase.
The report explains that the scheme is intended as an interim measure which could be implemented quickly by administrative means without the need for legislation in order to respond to concerns which had been expressed by the public, the courts and the media.
The LRC would further consider whether a comprehensive legislative scheme should be introduced to enhance the regulation of sexual offences records checks for child-related work, without unjustifiably infringing the privacy and other rights of the offenders (or their family members). As that will take some time to complete, the LRC is therefore putting forward the interim proposals for consideration and implementation in the meantime.
The report makes clear that the LRC does not favour the introduction of a register of sex offenders to which the general public has access, along the lines of those found in US jurisdictions. Instead, the LRC recommends that criminal records held by the police should be utilised for the purposes of screening job applicants for positions that give them access to children and mentally incapacitated persons.
The scheme now operated by the police for providing Certificates of No Criminal Conviction would be modified and adapted to enable the proposed checks to be conducted. Any check will have to be initiated by the job applicant himself, and his consent will be necessary to allow the result to be revealed to the prospective employer. A "clean" check result would not be recorded in writing, but would be communicated verbally to the job applicant or his employer.
The report explains that, with some limited exceptions, there is no system in place in Hong Kong which allows employers to check relevant past convictions of a prospective employee, even with his consent. A check can be conducted in relation to certain professions or areas of work where there are specific statutory provisions. For instance, there are provisions allowing criminal record checks of school managers and teachers registered under the Education Ordinance (Cap 279), child-minders under the Child Care Services Ordinance (Cap 243), and social workers registered under the Social Workers Registration Ordinance (Cap 505). But there remains a wide range of persons who have close contact with children during their work in respect of whom criminal record checks are currently not available. Examples include laboratory/computer technicians, support staff in schools, tutors, music teachers, sports coaches, staff in children's wards, and volunteer workers at youth centres and religious and other organisations.
The report stresses that, in formulating its proposals, the LRC considered the human rights and privacy aspects of the use of criminal conviction records to vet certain types of job applications. It points out that the scheme proposed is modest compared with those adopted in many other jurisdictions.
|Press Release (PDF) (MS Word)|
|Executive Summary (PDF) (MS Word)|
|Report (PDF) (MS Word)|