DISCRIMINATION IN EMPLOYMENT ON THE
BASIS OF CRIMINAL
RECORD
Click here to access:
Submission No. 27 -
Shopfront Youth Legal Centre, a free legal service for homeless and disadvantaged
young people
| 17 February 2005
To: Stephen Duffield
Director, Human Rights Unit
Human Rights & Equal Opportunity
Commission
GPO Box 5218
SYDNEY NSW 2001 |
Our ref: Jane Sanders
Email: jane.sanders@freehills.com
Doc no: Sydney \ 004799529 |
Dear Sir
Discrimination in Employment on the Basis of Criminal Record
I write this submission on behalf of the Shopfront Youth Legal Centre,
a free legal service for homeless and disadvantaged young people. The
Shopfront is located in Darlinghurst and is a joint project of Freehills,
Mission Australia and the Salvation Army.
Since 1993 the Shopfront has worked with homeless and marginalised young
people between the ages of about 12 and 25. Our four solicitors represent
and advise clients on a range of legal issues. About 75% of our practice
involves criminal law.
The Shopfront's primary client base is in inner-city Sydney; however,
we work with young people from all over Sydney and surrounding areas.
A substantial proportion of our clients have a serious mental illness,
an intellectual disability and/or a substance abuse problem. Most have
a history of abuse, neglect and homelessness.
We have read your discussion paper on Discrimination in Employment on
the Basis of Criminal Record, and we welcome the opportunity to make
a submission. We make the following comments:
- The majority of the Shopfront's clients have been convicted of at
least one criminal offence, either as a juvenile or as a young adult.
In the case of juvenile offences, a conviction may not have been recorded
or may be spent by the time the offender is in their early twenties.
However, a large number of our clients also have convictions for adult
offences, which take 10 years to become spent.
- A criminal record is just one of the many barriers to employment
faced by young people. For the Shopfront's clients, the main obstacle
to employment is inadequate literacy, numeracy and vocational skills.
A significant number of our clients also have (or have had in the past)
a drug dependency, mental illness or disability, and they may experience
unlawful discrimination as a result. A criminal record is a further
handicap for young people in a very difficult employment market.
- We do not have any empirical evidence about the extent of criminal
record discrimination against our clients. However, we do have anecdotal
evidence from our clients, and from workers in youth services and employment
agencies, that discrimination on the basis of criminal record is a
significant issue.
- In our experience, offending by young people is often strongly linked
to factors beyond the young person's control, such as homelessness,
physical or sexual abuse, mental illness or intellectual disability.
- A person with an indigenous, non-English-speaking or low socio-economic
background is much more likely to acquire a conviction than their white
middle-class equivalent, even when engaged in exactly the same type
of conduct. For example, statistics show that indigenous juveniles
are less likely to be diverted under the NSW Young Offenders Act (and
therefore more likely to be sent to court) than their non-indigenous
peers. Another example is that of people who elect to take infringement
notices to court because they cannot afford to pay the fine. Our experience
is that the magistrate will usually reduce the fine, but will record
a conviction which would not have been recorded had the offender simply
paid the fine.
- Some young people also acquire convictions in the pursuit of conscientiously-held
beliefs (for example, students convicted of trespassing or resisting
police during an anti-war or environmental protest).
- We suggest that offences committed against a background of social
disadvantage or conscientious political protest do not necessarily
mean that a person is inherently violent, dishonest or untrustworthy.
We have seen many young offenders mature into law-abiding and responsible
adults.
- We acknowledge that, in some cases, a criminal record may be inconsistent
with the inherent requirements of a particular job. However, even in
occupations which require a high level of integrity, a criminal record
does not necessarily indicate that a person is unfit for the job. The
triviality of the offence, the circumstances in which it was committed
and the length of time that has elapsed are all highly relevant factors.
- In our view, discrimination on the basis of criminal record should
be unlawful unless it is clearly related to the inherent requirements
of the job. However, any attempt to define the inherent requirements
of a job is fraught with difficulties. As the Discussion Paper shows,
employees and employers often have different ideas as to which criminal
convictions are relevant to the job.
- If a prospective employee is required to disclose all convictions
to a prospective employer, there is a risk that an employer may inappropriately
discriminate on the basis of convictions that are irrelevant. On the
other hand, if a prospective employee is required to disclose only relevant criminal
history, he or she may fail to disclose matters that are relevant to
the job, and be faced with dismissal if these matters are discovered
by the employer. The best solution is perhaps a requirement for prospective
employees to disclose all convictions, but this needs to be accompanied
by very strong protection for employees who experience discrimination
based on irrelevant criminal history.
- A system similar to the NSW "Working with Children Check", where
an external agency performs the criminal record check and reports back
to the employer with a risk assessment, may be worth exploring. However,
we concede that such a measure would be costly and difficult to implement
in practice. An external agency is unlikely to have a sufficient understanding
of the inherent requirements of different jobs across a range of workplaces
and industries.
- We believe it is unreasonable to expect prospective employees to
volunteer information about criminal convictions when not specifically
asked to do so. While it may be reasonable to dismiss an employee for
lying about their criminal record, it is unfair to dismiss someone
for failing to provide information which was not specifically requested.
- Employers should be prohibited from requiring a person to disclose
spent convictions (including matters where the offence has been proved
but no conviction recorded) except in those occupations where there
is a statutory exception to the spent convictions legislation. The
spent convictions legislation serves a very important social purpose
in allowing ex-offenders to get on with their lives without the permanent
stigma of a conviction, and it should not be undermined.
- We have observed that some job application forms include inappropriate
questions such as "Have you ever been in trouble with the police?".
We support a legislative prohibition on employers asking such questions,
which are unfair and, in most cases, irrelevant. Young people are often "in
trouble with the police" through no fault of their own, it is often
the case that charges are not laid or are ultimately dismissed.
- Finally, we believe that public education is a vital component of
any anti-discrimination initiative. Many employers and members of the
general public have misconceptions about people who have committed
criminal offences. There is a tendency to view such people as inherently
bad, without understanding the context of their offending. There is
a need for greater public awareness of the fact that society cannot
be divided into neat categories of "criminals" and "innocent law-abiding
citizens", and that most offenders are able to achieve rehabilitation.
We would be happy to discuss any matters arising from this submission,
including providing client case studies if requested. Please feel free
to contact me at jane.sanders@freehills.com or
on 9360 1847.
Yours faithfully
Jane Sanders
Solicitor |