DISCRIMINATION IN EMPLOYMENT ON THE
BASIS OF CRIMINAL RECORD

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Submission No. 17 - Office of Police Commissioner WA

01002 02 FV 001

Dr Sev Ozdowski OAM
Human Rights Commissioner
Human Rights and Equal Opportunity Commission
Level 8, Piccadilly Tower
133 Castlereagh Street
SYDNEY NSW 2000

Dear Dr Ozdowski

Discrimination in Employment on the Basis of Criminal Record

I wish to thank you for your correspondence dated 13 December 2004 relating to Discrimination in Employment on the Basis of Criminal Record.

Feedback on the Initiative

In principle, the Western Australia Police Service (the Police Service) considers that the establishment of a set of resources to assist both employers and employees to understand their rights and responsibilities in the area of employment discrimination relating to criminal records is an excellent initiative.

It was noted that the "Discrimination in Employment on the basis of Criminal Record - Discussion Paper, 2004" (Discussion Paper) used Police as an example of where a job applicant believed he had been discriminated against on the basis of his criminal history. The Police Service argued that they had examined the charges, the circumstances in which they took place, witness statements and the applicant's work history and considered that he did not meet the high standards required by the Police Service.

The Human Rights and Equal Opportunity Commission was satisfied that a high level of integrity is an inherent requirement of employment in the Police Service and subsequently declined the discrimination complaint.

Relevance to the Police Service

The Police Service currently assesses job applicants who have criminal records and existing employees who are convicted of a criminal offence on a case-by-case basis, taking into account all of the circumstances in which the offence/s took place.

Offences involving violence or integrity/honesty are viewed by the Police Service to be particularly serious in nature. Consequently, the decision to employ an applicant, or retain an existing employee convicted of these types of offences, has the potential to place the Police Service and community at risk.

Spent convictions legislation in Western Australia states that it is unlawful to discriminate against a job applicant or employee on the basis of a spent conviction. However, the Spent Convictions Act 1988 - Schedule 3 No 3 provides an exemption to the Police Service when a person is being considered for appointment as a constable or aboriginal aide under the Police Act 1892.

Article 1(2) of the International Labour Organisation Convention (ILO111) provides for an exception to the general definition of discrimination, known as the Inherent Requirements exception. It states: Any distinctions, exclusions or preferences in respect of a particular job based on the inherent requirements of the job are not deemed to be discrimination .

Police officers, by the nature of their role as law enforcers, exercise considerable power over the community and have access to sensitive/privileged information, therefore it is vital that the community perceives the Police Service to be a trustworthy organisation. To this end, police officers and police staff must be seen to have a higher level of integrity and honesty than that of the general public.

As it is considered that a high level of integrity and honesty is an inherent requirement of being a police officer, it is the opinion of the Police Service that the decision to not employ an applicant or to dismiss an existing employee on the basis of criminal record is not unlawful.

Yours sincerely