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DISCRIMINATION IN EMPLOYMENT ON THE BASIS OF CRIMINAL RECORD

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Submission No. 33 - New South Wales Anti Discrimination Board

Submission from: Elizabeth Wing, Acting President

Dr Sev Ozdowski
Human Rights Commissioner
Human Rights and Equal Opportunity Commission
GPO Box 5218
SYDNEY NSW 2001

Dear Dr Ozdowski

Discrimination in employment on the basis of criminal record

Thank you for the opportunity to provide submissions on the Human Rights and Equal Opportunity Commission's December 2004 Discussion paper, Discrimination in Employment on the Basis of Criminal Record.

As you are aware, the Anti Discrimination Board administers the NSW Anti-Discrimination Act, 1977 (NSW) (ADA). The Board's role is to investigate, and attempt to conciliate, complaints made under the ADA. Where complaints cannot be conciliated (and in some other circumstances) complaints may be referred to the Administrative Decisions Tribunal (ADT) for determination.

This submission focuses on the discrimination issues canvassed in the Discussion Paper.

Question 3

(a) Are there currently sufficient legal protections against discrimination in employment on the basis of criminal record?

Under the ADA it is unlawful to discriminate in a number of areas of public life, on the following specified grounds:

race
sex (including pregnancy and sexual harassment)
marital status
carer's responsibilities
disability
homosexuality
transgender status
age

Vilification on the grounds of race, transgender status, homosexuality and HIV/AIDS is also unlawful under the ADA.

The areas of public life covered by the ADA are employment, education, the provision of goods and services, accommodation and the activities of registered clubs.

The ground of criminal record or irrelevant criminal record (as enacted in the Northern Territory) is not included in the ADA as the basis for a complaint of unlawful discrimination.

Nonetheless, the Board receives many telephone enquiries and some complaints about discrimination from people who have a criminal record, or who are assumed to have, a criminal record.

Between 1 July 2000 and 24 March 2004 the Board received approximately 305 enquiries concerning discrimination and criminal record. Between 1986 and 2004 approximately 51 complaints were lodged with the Board concerning criminal record; of those 24 were in the area of employment.

Please find attached a list which summarises complaints to the ADB on the ground of criminal record - Attachment A. Please note that for technical reasons, the Board is only able to provide information about complaints lodged since 2000.

In its 1994 submission to the NSW Law Reform Commission (LRC) enquiry into the ADA the Board considered the question of whether the scope of the ADA should be expanded to include prisoners and ex-prisoners and their associates. The Board expressed the view that the ADA should be expanded to encompass not only prisoners and ex-prisoners but discrimination on the basis of criminal record.

The Board's view was that laws establishing the concept of a spent conviction were not sufficient to provide redress for discrimination, for example, where no time in prison was served or where the sentence did not include a term of imprisonment.

For this reason the Board submitted that consideration should be given to extending the scope of the ADA to include a prohibition against discrimination in all areas of public life covered by the ADA for all those who have been arrested, questioned, charged with offences, appear in court, are convicted or otherwise, and serve a sentence of whatever kind.

The rationale for this view was simple: the rehabilitation of offenders helps to stop them from committing crimes again and repeating the cycle of recidivism. Every time an ex-offender encounters discrimination in his or her attempts to gain employment and establish a new life, his or her rehabilitation is set back. This in turn has effects on the families of former offenders - they may be deprived both of the family member and of his or her income. Further, the family members may experience discrimination by virtue of their association with that person, despite not having had any involvement with the crime itself.

While the LRC recognised that discrimination because of a person's criminal record can affect many aspects of life and be extremely wide-ranging (including the impact on the family and associates of the person), it did not support the Board's position.

Broadly, the LRC was of the view that the legislature had addressed the issue adequately through the enactment of specific spent convictions legislation .^[1]

In its report on the review of the ADA ,^[2] the LRC stated that:

"While [the Commission] accepts that having a conviction may cause adverse responses in, for example, the area of employment such responses are not always irrational or unjustifiable. Besides, given that the problems to which such circumstances give rise are properly addressed in specific legislation, there is no compelling reason to address them separately in the ADA." ^[3]

In NSW the Criminal Records Act 1991 (CR Act) provides that certain convictions will become spent after a period of 10 consecutive years of crime-free behaviour. This means that such convictions will not form part of a person's criminal record and will not be required to be disclosed to a prospective employer.

Convictions under all NSW laws and laws of other jurisdictions are capable of becoming spent under the legislation with the exception of the following:

convictions for which a prison sentence of more than 6 months has been imposed;
convictions for certain sexual offences;
convictions imposed against bodies corporate; and
convictions prescribed by regulation.

Section 12 of the CR Act provides that the consequences of a conviction becoming spent are:

the offender is not required to disclose the spent conviction to another person;
a question concerning the offender's criminal history is to be taken to refer only to any convictions which are not spent;
statutory provisions relating to convictions or to a person's character or fitness are to be taken to apply only to any convictions which are not spent, except as otherwise provided by regulation.

The following people must however disclose convictions which would otherwise be 'spent' under the CR Act:

persons seeking appointment to judicial office or in areas of law enforcement, teaching or child care; and
persons seeking employment in fire fighting or fire prevention who have been convicted of arson or attempted arson.

In NSW legislation has been enacted which specifically covers child related employment and criminal convictions. ^[4] The legislation prevents any person who has been convicted of a serious sex offence under the Crimes Act 1900 (NSW) applying for employment in child related employment. It is also an offence for an employer in NSW not to request that an applicant, for a position in child-related employment, disclose whether that person is a prohibited person; where the employer knows the person is a prohibited person the employer must not employ that person. Failure to comply with the legislation carries a significant penalty. ^[5]

A number of other Acts in NSW either wholly or partially override the CR Act including:

Security Industry Act 1997 (NSW);
Casino Control Act 1992 (NSW);
most of the Medical Practitioner licensing and registration Acts ( which allow boards to consider findings of guilt with or without bonds which would otherwise be spent immediately); and
Part 8 of Commission for Children and Young People Act (see above) which overrides spent conviction provisions for "relevant offences" against children when screening for child-related employment .

There are also exemptions in the Criminal Records Regulation to the restrictions on disclosures by the police to, for example, staff of the Independent Commission Against Corruption and Office of Fair Trading, for the purpose of investigating offences.

Section 579 of the Crimes Act 1900 (NSW) renders inadmissible or unusable for any purpose, evidence of offences dealt with by way of suspended sentence or finding of guilt and a bond, after 15 years of crime free behaviour after the expiry of the bond. ^[6]

The effect of this matrix of laws dealing with criminal record and employment is that there are many instances in which the existence of a prior criminal conviction will be disclosed and taken into account in deciding who will be offered employment.

It is also the case that privacy laws offer little protection against disclosure and the risk of ensuing discrimination.

Two existing privacy laws operate in NSW which will apply to criminal record - the Privacy and Personal Information Protection Act 1998 (NSW) (the PPIP Act) for the public sector and the Privacy Act 1988 (Cth) which covers the private sector.

The PPIP Act introduces a set of privacy standards for the NSW public sector. These standards regulate the way public sector agencies deal with personal information. The PPIP Act does not cover all uses of personal information by public sector agencies, making significant exemptions in the case of law enforcement and investigative agencies. The PPIP Act also allows for agencies to opt out of one or more of the principles by developing a privacy code of practice.

Excluded from the definition of personal information is information about suitability for appointment or employment as a public sector employee. This means that for most purposes the use of criminal records in recruitment is not covered. While the Public Sector Personnel Handbook incorporates guidelines on how criminal record checking should be used in recruitment the position in regard to checking for non-government positions is uncertain, owing to the exemption of police functions (other than administrative or educative) from compliance with restrictions on disclosure.

It is possible for police to argue that their disclosure of criminal records to private sector employees is not covered by the PPIP Act. However, in practice, they require applicants being screened to sign a consent to criminal record checks. Most occupational licensing legislation in NSW authorises criminal record checks for licence applicants (usually subject to the CR Act although with significant exemptions).

Please also note that NSW Police have signed up to the National Criminal History Record Checking Program which expands their provision of criminal record checks to employers and other businesses where a signed consent form is provided.

In summary, there are a number of ways in which the existence of a criminal record may be disclosed to a prospective employer who may, in turn, use that information to make a decision not to employ a particular person. That decision can be made regardless of whether the person was the best person for the job and whether or not there was any relationship between the criminal record and the job being sought. The person discriminated against because she or he has a criminal record will have no recourse to discrimination law in NSW and may or may not be able to pursue a complaint regarding a breach of privacy legislation.

For this reason it is the Board's view that there is not currently sufficient legal protection against discrimination in employment on the basis of criminal record.

(b) If there needs to be additional protection against discrimination in employment on the basis of criminal record, what form should it take and what elements should be included?

As outlined above, the Board has previously submitted that discrimination on the ground of criminal record should be unlawful. It appears unlikely, however, that there will be any substantive amendments to the ADA to include this ground in the near future, particularly given that this was not supported in the LRC's review of the ADA.

The Board agrees with the LRC that:

"While there is a potential for unfairness in relying upon an arrest, criminal charge or acquittal, it may not be irrational or unjustifiable to take into account the conduct which may have led to such a consequence." ^[7]

Nonetheless, in the Board's view, it is inappropriate that discrimination is effectively permitted simply because a person has had some kind of compulsory contact with the justice system. The Board's experience is that some form of legislative protection is required to guard against discrimination in employment on the ground of criminal record.

The precise form such additional protection should take is beyond the scope of this submission. An effective model, however, may be the provisions of the Anti Discrimination Act 1992 (NT) as they relate to discrimination on the ground of irrelevant criminal record.

Section 4 of the NT Act defines "irrelevant criminal record" for the purposes of section 19 - prohibition of discrimination. In addition to those, there may be other circumstances where having a criminal record is not relevant to a person's fitness to fill a position including:

arrests or prosecution that did not lead to a conviction;
convictions arising as a result of political or moral views (protests, demonstrations involving objections, etc);
a first offence for drunkenness, simple assault, speeding or other minor driving offences, disturbing the peace, affray;
convictions for summary offences where the date of conviction or the end of any period of sentence was more than five years ago, provided there have been no subsequent convictions within that five year period;
offences committed whilst a child/juvenile, providing the person was not tried in an adult court.

All of the above, however, should be subject to a statutory exception allowing an employer to discriminate if a person's criminal record is relevant to the work they do or aspire to do and the discrimination is reasonable in the circumstances. In other words, any legislative protection for people with a criminal record must address the relationship between the conviction record and the job sought.

Currently, under both federal and NSW discrimination law, the test for excluding a person from employment is whether the person is able to perform the inherent requirements of the job. As highlighted in your report this is a model which is appropriate to an application for employment by a person with a criminal record and which could be adopted in any legislative reform on this ground.

In addition, it is the Board's view that it is appropriate that the prohibition should be subject to the same exceptions as apply to other grounds namely domestic employment and domestic accommodation (in the owner's or near relative's residence).

(c) What remedies should be available for people who have experienced discrimination on the basis of criminal record?

The question of the full range of remedies that should be available for people who have experienced discrimination on the basis of criminal record is beyond the scope of this submission. However, it seems clear that monetary compensation while useful, is not going to address the fundamental problem of access to employment.

Whatever its rationale as a tort-type measure to place the person in the position they would have been in but for the act or acts of discrimination, compensation is seen as essentially punitive and the extent to which it assists in bringing about the positive change in attitude required for true reform is open to question.

In our submission a package of reform is required that would address discrimination issues as well as providing incentives for employers to consider hiring people with criminal records. It may be useful to consider measures introduced in other jurisdictions to encourage employers to hire ex-offenders such as tax credits and other work-related assistance such as training or subsidies. ^[8]

(d) What difficulties might face a person with a criminal record who wishes to use the current anti-discrimination legislation? What can be done to overcome these difficulties?

As noted above, at present, there is no legislative protection under NSW discrimination law which will assist a person who has been discriminated against on the ground of the person's criminal record.

The experience of the ADB in relation to this issue is that not only can discrimination be an issue at the time of recruitment and termination of employment, but also during the course of employment if, for example, a person is experiencing harassment at work because of his or her criminal record (or what is generally perceived to be the person's criminal record). Such a person is unlikely to be an effective employee and is unlikely to remain at that place of employment. Once the person resigns, they may find it difficult to obtain further employment; this in turn, places pressure on the person and there is the likelihood that the cycle of recidivism is perpetuated.

An effective legislative regime would:

make discrimination on the ground of criminal record unlawful in all areas of public life currently covered;
specifically cover the terms and conditions of employment ie harassment at work on the ground of criminal record would be unlawful;
provide for a statutory exception to apply in relation to recruitment and termination of employment if having a criminal record is directly relevant to the job to be performed (inherent requirements), the onus being on the employer to show the exception applies. Other exceptions to apply in essentially "private" areas of life, for example, employment in private household, etc.

Should you wish to discuss any of the matters raised more fully please contact Fiona Kerr, Legal Officer, on 9268 5572.

Yours faithfully

Elizabeth Wing
Acting President

ATTACHMENT A

Anti Discrimination Board - Criminal Record Complaint Summaries 1996 to 2004

matter relating to loss of a job following revelation of criminal record
man with a criminal record seeks advice on his rights to employment
matter concerning past drug offence
complaint about spent conviction.
complainant was unsuccessful in his application for a position as wards person due to him having a criminal record.
matter concerning termination of employment due to criminal record
complaint concerning alleged harassment at work following newspaper article on complainant's alleged criminal activity
complaint concerning refusal of licensing authority to grant taxi-driver's license to complainant because of previous criminal conviction

ATTACHMENT B

Information provided by Privacy NSW in relation to enquiries or complaints on the issue of criminal convictions includes:

complaint re disclosure of spent conviction via Austlii website listing of criminal cases and judgments - Google or similar web search picked it up and now person is victim of anonymous harassment at work;
complaint re disclosure of spent conviction (method unknown) - person (public figure) is now being harassed;
numerous related cases of person whose conviction for child sex assault was quashed - enormous difficulty in getting the 'mud' of the original accusation to unstick;
numerous e-mail enquiries regarding "what will the NSW Police tell the US/UK/Canadian immigration authorities about my spent conviction?";
recent requests for advice from a state-owned corporation wanting to do a criminal record check and dismiss anyone with a record, as a way of dealing with a perceived security/terrorist threat.

1. Criminal Records Act 1991 (NSW)
2. Review of the Anti Discrimination Act 1977 (NSW) Report 92 NSW Law Reform Commission November 1999
3. id at 315
4. Child Protection (Prohibited Employment) Act 1998 NSW and the Child Protection (Offenders Registration) Act 2000 NSW.
5. In addition, part 8 of the Commission for Children and Young People Act 1998 (NSW) requires employment screening for relevant criminal records for people working with children. There is a process for seeking a declaration allowing a person who is a prohibited employee to continue in employment.
6. A series of cases about the scope of section 579 in relation to the Child Protection (Prohibited Employment) Act (CPPE Act) culminated in a decision by a full bench of the NSW Industrial Relations Commission that the CPPE Act overrode the benefit conferred by section 579 (Commission for Children and Young People v "A" [2003] NSWIRComm 6).
7. LRC report at 315
8. Rachel M Haberkern "Helping Parents with Criminal Records Find Employment and Achieve Self-Sufficiency" Welfare Information Network Vol 7, No 4 March 2003