Human Rights and Equal Opportunity Commission Website: Human Rights

DISCRIMINATION IN EMPLOYMENT ON THE
BASIS OF CRIMINAL RECORD

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Submission No. 28 - Ignatius Centre, Jesuit Social Services

Introduction

At least 30,000 offenders are being returned to the Australian community each year. (Borzycki and Baldry (2003) Promoting Integration: The Provision of Prisoner Post-release Services Australian Institute of Criminology Trends and Issues Paper No.262)

Australians who have a criminal record often face significant barriers to full participation in the Australian community.

The stigma attached to a criminal record represents a real impediment to an ex-offenders' reintegration into society. This places them at greater risk of recidivism.

The impact of a criminal record on job prospects and professional opportunities is of a particular concern for juveniles with a criminal record. Acquiring a criminal record at a young age can therefore have a significant impact upon a young person's working life.

Jesuit Social Services believes that reducing employment discrimination on the basis of a criminal record will increase the employment opportunities, and therefore opportunities for reintegration with the community, for those individuals recently released from prison.

Since 1977, the Brosnan Centre - a program of Jesuit Social Services - has played a crucial role in supporting young people aged 17 to 25 to make a smooth transition from custody to the community. Finding employment is a crucial component of their clients' reintegration into society.

The introduction of a Code of Conduct for employers and a well-resourced public education campaign seem the best strategies for tackling employment discrimination against individuals with a criminal record.

Background Research

The proportion of all prisoners with known prior imprisonment was 58% at 30 June 2004. (Australian Bureau of Statistics (2004) 4517.0 Prisoners in Australia)

Corrections Victoria estimates that about two-thirds of repeat offenders are unemployed at the time they re-offend (Victorian Department of Justice 2000-2001). A study of ex-prisoners in NSW and Victoria, conducted by Baldry, McDonnell, Maplestone and Peeters (Ex-Prisoners and Accommodation: what bearings do different forms of housing have on social integration, AHURI 2003 p.18), found that 54 percent of participants who were unemployed and were seeking work post release returned to prison whilst only 8 percent of those with employment returned.

Research conducted by Social Exclusion Unit within the British Office of the Deputy Prime Minister in 2002 concluded that "employment reduces the risk of re-offending by between a third and a half," as a consequence of unemployment making it difficult to maintain stable accommodation or a legitimate income stream (Reducing Risk of Re-Offending, 2002, p.52). However, 57 percent of individuals with a criminal record who were looking for work responded that they had experienced trouble finding employment post-release due to their criminal record (Reducing Risk of Re-Offending, 2002, p.59).

In an extensive study of disadvantage at the postcode level in Victoria and NSW, entitled Community Adversity and Resilience, Jesuit Social Services discovered an inordinately high correlation between the rate of unemployment in a given postcode, and the number of residents with a criminal record and/or experience of prison. Where 1 represents a perfect positive correlation and -1 is a perfect negative correlation, the correlation between unemployment and court convictions in Victoria and NSW was approximately 0.6, and 0.5 between unemployment and time in prison. (Vinson, T (2004) Community Adversity and Resilience, The Ignatius Centre for Social policy and Research pp 62-63) Thus, this research confirmed that a criminal record and/or time in prison are closely associated with unemployment.

Spent Convictions

In June 1989, the Federal Parliament passed a law to prevent discrimination against individuals on the basis of old 'less serious' convictions (Crimes Legislation Amendment Act 1989). Part VIIC of the Crimes ACT 1914, the Spent Convictions Scheme, allows individuals with 'minor' convictions (a concept that is ill-defined) to disregard those convictions after a specified period: 10 years for adult convictions, 5 years for juveniles. In addition, the law prohibits individuals or organisations from taking these convictions into account, or disclosing them to anyone without the consent of the individual. The Act covers Commonwealth, Territory and State authorities as well as private companies and individuals.

New South Wales, Queensland, Western Australia, Tasmania and the Northern Territory all have legislative schemes whereby convictions lapse after a period of time. The relevant acts are the Criminal Records Act 1991 (NSW), Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld), Spent Convictions Act 1992 (WA) and the Criminal Records (Spent Convictions) Act 1992 (NT). In South Australia, the Police Department's policy is to transfer convictions for certain offences into an inactive file after five or ten years. More recently, Tasmania introduced the Annulled Convictions Bill 2003, in line with the Federal Act. Victoria is now the only State not to operate a specific or de-facto spent convictions scheme.

The policy basis of a spent convictions scheme is clearly tied to the concept of rehabilitation, which is one of the four recognised aims of punishment in the criminal justice system:

. To provide an incentive for convicted offenders to rehabilitate themselves; and . To 'reward' offenders once that rehabilitation has been achieved

While 10 years for adults and 5 years for juvenile offences is the Commonwealth standard spent conviction, waiting period, Western Australia and New South Wales have reduced the waiting period for juvenile offences (2 years and 3 years respectively).

Jesuit Social Services recognises the negative impact a criminal record has upon a persons prospects for employment, and encourages the Victorian Government to introduce spent conviction legislation that expunges an offence in line with the other Territories and States of Australia.

With respect to juveniles, Jesuit Social Services supports a reduction in the waiting period from 5 years, in line with the actions of New South Wales and Western Australia.

Social Disadvantage

Poverty, poor education, poor physical health, accompanied by alcohol, drug and mental illness, intellectual disability, and poor social and communications skills, are rife amongst prisoners and ex-prisoners.

Such social disadvantage can be further exacerbated by the prison experience. Prisoners tend to possess low levels of workplace skill and education, and a custodial term tends to further diminish an ex-offender's employability.

Similarly, the lack of stable and affordable accommodation accessible to ex-prisoners reduces their ability to find and maintain employment.

Questions and Answers

Does your agency know of any employers with a successful track record of employing people with criminal records?

In the experience of the Brosnan Centre, one of the leading agencies assisting young adults recently released from prison, small businesses employing individuals in manual and low-skilled work make the best employers of people with criminal records. They are generally the most understanding, and have the least concerns about whether an individual's history will affect their work.

Job futures CSEPP has been successful at placing some Brosnan Centre clients with employment specialists. CSEPP make contact with clients while they are still in prison, assess their suitability and interest in particular forms of employment, and then link them in to the right agency. This kind of preparatory work is important when working with someone who has been removed from society, let alone the job market, for long periods.

Increasingly, the building industry and some catering services are employing people with a criminal record. Links should be developed between the type of work conducted while in prison, and training programs for these industries.

What practical difficulties face people with criminal records who are seeking employment?

The dearth of factory work and low-skilled employment generally has made it increasingly difficult for ex-prisoners to obtain steady employment.

The type of work available to prisoners while incarcerated is of little help to them upon their release. The skill sets they are able to develop while working in prison do not improve their employment prospects. Other than manual work in laundries and kitchens, most ex-prisoners are not job ready once released into the community.

What specific difficulties face people with criminal records who are seeking employment?

Whether to disclose or not disclose a criminal record at an interview: while in most cases, an applicant is not required to disclose their criminal record to a prospective employer, the employer may find out later on and have grounds on which to sack the employee. On the other hand, if an applicant discloses their criminal record, they risk being passed over for the job, being treated differently to other employees and being blamed if a crime or disturbance occurs within the workplace.
Long gaps in their CV: to many employers, long absences from work are a cause for suspicion or concern. Gaps imply that the applicant lacks recent work experience, and may be out of touch with new techniques or technologies. It also implies that the individual's prior skills have deteriorated through disuse. Prison work is usually not seen as legitimate experience by employers, and because of the stigma attached to a criminal record, is often not included on a CV by ex-prisoners.
The lack of stable accommodation available to recently released prisoners: Rooming houses or friends houses are often the only form of accommodation available upon release. This makes it difficult to cite a contact phone number and address upon which to be contacted by prospective employers.
Presentation problems: recently released prisoners often don't have the same kind of presentation skills to make them the preferred candidate when going for a job. Tattoos, scars and missing teeth have been cited as barriers; at the same time, simple things like not having a properly constructed CV, a lack of interview experience and/or presentable clothes may cause an employer to discriminate against their application.
Uncomfortable with authority figures: formal job interviews and assessments by employment providers can be seen to replicate police interviews, leading an ex-prisoner to be defensive or reticent.

Why might employers be reluctant to employ someone with a criminal record?

Ex-prisoners and individuals with a criminal record are seen as less trustworthy and more likely to intimidate staff members and customers. This places them at a significant disadvantage when forced to compete with a number of applicants.

What strategies might address ongoing employment discrimination against people with criminal records?

A code of conduct for employers, backed by a well-resourced advertising campaign, would serve to protect potential and current employees. A code would define what is considered unacceptable behaviour, and provide employees some recourse for adjudication and/or compensation. Unacceptable behaviour would include employers disclosing an employee's criminal record to other employees or companies, and taking information about an irrelevant conviction into consideration when judging an applicant's suitability for a job, a promotion or extra responsibilities within the workplace.

A code of conduct, coupled with concerted public education, would address employment discrimination. State and Federal employment departments and Job Network agencies would promote the 'good news stories' and successful case studies of employers hiring individuals with a criminal record. The campaign would borrow from the success of anti employment discrimination against people with disabilities.

It should be pointed out by such a campaign that a large number of people with a criminal record haven't committed a crime for many years and, as far as their capacity for undertaking employment is concerned, are unnecessarily discriminated against.

While employer groups complain that Australia is suffering from a huge skill shortage and needs to look overseas to fill the gap, a huge number of people with criminal records are overlooked. It would be important to involve employer groups in a campaign to tap this resource.

What difficulties face a person with a criminal record who wishes to use current anti-discrimination legislation?

JSS notes that it is unlawful under Commonwealth equal opportunity law (but not Victorian) for an employer to discriminate against a current or potential employee by not employing or sacking them because they have a criminal record. However, JSS also notes that HREOC is limited in its power to enforce this law and that there is no practical capacity for a prospective employee to gain compensation or other relief by filing a complaint.

While Tasmania and the Northern Territory have laws that specifically prohibit discrimination on the basis of criminal record, and the court can order an employer not to repeat or continue the prohibited conduct, to pay compensation or to take specific action, including re-employing a person, Victoria has no such legislation.

In addition to these legislative barriers, one practical barrier is that ex-prisoners can be suspicious of 'the system,' wary of legal representation, and therefore reluctant to take their case to an adjudicator such as HEREOC.

Case Studies

Discrimination in the Workplace

Geoff* had found employment with a company installing gates. At his interview for the job, he'd been upfront with his employer, telling him that he had been in prison but that was all behind him. His employer seemed to respect his honesty and let him get on with his job.

Six months after 'Geoff' had commenced his employment, something of value went missing from the workplace. Fingers were instantly pointed at 'Geoff' by his co-workers, accusing him of being a 'crim' or life criminal. 'Geoff' was then confronted by his employer, who asked him whether he was the culprit; the other staff members were simply asked whether they knew what had happened to the item.

The implication was that because of his criminal history, he must have been the one to commit this offence. Despite having never disclosed his criminal history to any of his co-workers, they had known all along.

After the incident, 'Geoff' felt that he could no longer stay in the job, that everyone was watching him and that he was a second-class citizen. He quit the job soon after.

Because of his criminal record, 'Geoff' was subject to discrimination by his employer and co-workers.

Getting out, staying out

Andrew* had spent eighteen months in a juvenile justice centre from the age of 17 to 19 and had never been employed before his incarceration. He had left school at the age of 15 and spent some time being assisted at a local community youth centre. His imprisonment resulted from convictions for housebreaking, which resulted from his heroin addiction.

The Brosnan Centre, recommended 'Andrew' as a prospective employee to a road construction company.

'Andrew' was anxious as he attended his first meeting with the boss of the construction firm, accompanied by his worker from the Brosnan Centre.

He was unsure how he would go on his first day and did not know how to mix with the other workers. The first week was the hardest but he felt encouraged when the boss came around each day and asked how he was going and complimented him on his hard work.

The second week, he missed two days and had to explain why. He had been to a party on the Sunday night and sleep in the Monday morning. He did not go to work on the Tuesday either, but his new boss phoned him up to ask what was going on.

Since then he has settled into the work, enjoys bringing home his pay packet each fortnight, got himself completely off the drugs, apart from week-end drinking.

Some months after he started work he was able to reconnect with family, who were proud that he had made a fresh start. The latest development in his life was a new girl friend, which whom he has been living now for over twelve months.

Life is looking better for 'Andrew.'

A positive experience of employment is critical if an ex-offender is to reintegrate into the community.

Not Trustworthy Enough to be Paid

Kevin* was a long-term client of the Brosnan Centre. After a few years of rehabilitation and then experience of volunteering to work with some of the younger clients at the Brosnan centre, 'Kevin' discovered he enjoyed working with young people who had been in a similar situation to his own.

With some assistance from the Brosnan centre, 'Kevin' applied for a position with the Department of Human Services Juvenile Justice Division. The position entailed working with troubled youths - similar to the volunteer work he had been doing at the Brosnan centre.

When the Department of Human Services discovered that he had a criminal record, they explained that he would be ineligible for the position. His criminal record, they told him, precluded him from working with young people.

'Kevin' did not give up there. He offered his services as a volunteer to the project, and they accepted him.

While they were unwilling to pay 'Kevin' to work with young people - a risk they weren't allowed to take, according to the law - they were willing to gain his services and expertise for free.

While' Kevin' had the experience and aptitude for the position - which Juvenile Justice acknowledged by hiring him - the current law was an impediment to him finding paid employment.

Conclusion

Ex-prisoners are an extremely socially disadvantaged group. Employment is a crucial component of their reintegration into society. Where they have the skills to access employment, they should not be subjected to discrimination on the basis of their criminal record. However, reducing unemployment among ex-prisoners is Jesuit Social Services primary objective.

A judicial mechanism may not be the most effective means of addressing employment discrimination against ex-offenders. While recourse to the courts might assist some individuals overcome discrimination, much of the present discrimination results from the ignorance of employers. Legislation on its own will do little to address this latent ignorance. In addition, many ex-prisoners would be resistant to resorting to filing a legal complaint against an employer.

Jesuit Social Services believes that the introduction of a code of conduct and a subsequent public education campaign would be a more effective means of changing community attitudes. A code of conduct would also be more likely to be supported to employer groups, who are of vital importance in any strategy that actively seeks to reduce unemployment amongst ex-prisoners.

DISCRIMINATION IN EMPLOYMENT ON THE BASIS OF CRIMINAL RECORD