DISCRIMINATION IN EMPLOYMENT ON THE
BASIS OF CRIMINAL RECORD

Click here to access:

• Summary of the Criminal Record Discussion Paper
• Criminal Record Discussion Paper
• Index of Submissions Received
• Human Rights Homepage

Submission No. 49 - Department of Employment and Workplace Relations

February 2005

Table of contents

• 1. Introduction
  • Summary of submission
• 2. Overview of workplace relations framework
• 3. Adequacy of existing protections against discrimination
  • (1) Anti-discrimination legislation
  • (2) Inherent requirements of the job
  • (3) Spent convictions schemes
  • Extent of discrimination on the basis of criminal record
  • Conclusion
• 4. Strategies to assist in reducing discrimination
  • Education
  • Guidelines
• 5. DEWR programmes to assist ex-offenders in the labour market
  • Job Network
  • Indigenous Employment Policy
  • Other DEWR programmes
• 6. Conclusion
• Attachment A: Job Network in the Active Participation Model
• Attachment B: Indigenous Employment Policy
• Attachment C: Other DEWR Programmes

1. Introduction

In a letter to the Secretary of the Department of Employment and Workplace Relations dated 13 December 2004, Dr Sev Ozdowski, Human Rights Commissioner, invited the Department to make submissions in response to the discussion paper, Discrimination in Employment on the Basis of Criminal Record, issued by the Human Rights and Equal Opportunity (HREOC) in December 2004. The Department is pleased to accept this invitation.

2. The focus of the HREOC discussion paper is the provisions in the Human Rights and Equal Opportunity Commission Act 1986 (the HREOC Act) that prohibit discrimination on the grounds of criminal record.

3. The Department of Employment and Workplace Relations (DEWR) acknowledges that people with criminal records face particular disadvantage in the labour market and that there are social benefits to be gained from measures to help them find and retain jobs: participation in work increases connection to society and decreases the likelihood of re-offending, with all its attendant social costs. We are pleased that the Commission is working with stakeholders to develop practical solutions to assist employers and employees navigate this area of human rights law.

Summary of submission

4. An overview of the workplace relations framework is presented in section 2 of this submission. Section 3 canvasses the protections currently in place for persons with a criminal record. The discussion contained in these sections form the foundation for DEWR's view that existing anti-discrimination legislation in this area is adequate.

5. Section 4 addresses two of the Commission's specific questions for discussion: what strategies might assist in reducing discrimination in employment on the basis of criminal record; and whether there is sufficient guidance for employers to assist them in determining the inherent requirements of the job and in making decisions about particular employees. DEWR is of the view that the current arrangements provide sufficient protection to employees and prospective employees from discrimination of this nature. However, should the Commission form the view that further strategies are required, we suggest addressing discrimination on the basis of criminal record through education as well as through best practice guidelines.

6. Details of DEWR programmes that assist participation in the labour market by people with criminal records are set out in section 5. Section 6 presents concluding remarks.

2. Overview of the federal workplace relations framework

7. The introduction of the Workplace Relations Act 1996 (the WR Act) provided the federal workplace relations jurisdiction with an enabling framework in which legally enforceable workplace agreements can be negotiated either collectively or individually in businesses which are non-unionised or unionised. Employers and employees are now free, provided a simplified set of minimum standards is observed, to adapt their workplace arrangements to best suit their circumstances.

8. Consequently, a principal object of the WR Act is to ensure that primary responsibility for determining matters concerning the relationship between employers and employees rests with the employer and employees at the enterprise level. The Australian Government considers it to be essential that, so far as possible, wages and conditions of employment continue to be determined at the workplace level and tailored to the needs of individual employees and employers. It is through such a decentralised bargaining system that the greatest flexibility for individuals to achieve their personal preferences can be offered and achieved. Moreover, access to a full range of employment arrangements that provide workplace flexibility is essential if companies are to remain viable in the face of international competition.

9. In this context, the Government does not believe in subjecting workplaces to unnecessary legislative regulation. Such regulation is likely to hinder workplace flexibility and productivity.

10. The Government supports a legislative framework that maximises choice for workers and businesses and minimises regulatory constraints and interference by third parties. The flexibility afforded by such a framework plays a crucial role in the creation of high productivity and high pay workplaces.

3. Adequacy of existing protections against discrimination

11. There are a number of existing legal mechanisms that facilitate the protection of people with a criminal record against discrimination. These include:

• the anti-discrimination framework;
• the interpretation of the "inherent requirements" defence; and
• State and federal spent convictions schemes.

12. Importantly, the extent of discrimination on this basis appears to be fairly limited. As a consequence, the Government is of the view that the current framework provides an appropriate measure of protection to employees in relation to discrimination on the basis of criminal record.

(1) Anti-discrimination legislation

13. The Commonwealth Parliament has passed a suite of legislation that makes discrimination unlawful (subject to certain limited defences) on the grounds of sex, race, age and disability. A decision not to employ a person on the basis of criminal record does not offend any of these anti-discrimination Acts. However, the HREOC Act confers functions on HREOC in relation to equal opportunity in employment pursuant to Australia's international obligations under the Discrimination (Employment and Occupation) Convention 1958.

14. The Act provides in subparagraph (b)(ii) of the definition of discrimination for the adoption of regulations to declare additional grounds of discrimination under the Act. Under this power, the Human Rights and Equal Opportunity Commission Regulations 1989 declared 'criminal record' as a ground of discrimination for the purposes of the Act with effect from 1 January 1990.

15. Accordingly, HREOC can inquire into complaints of discrimination in employment by any employer and attempt to effect a settlement. If conciliation is unsuccessful and if, after inquiring into the matter and giving the parties an opportunity to make submissions, HREOC finds that discrimination has occurred, HREOC is required to serve notice setting out the findings and the reasons for those findings. HREOC may include in its findings recommendations for preventing a repetition of the discriminatory act, and for the payment of compensation or the taking of any other action to remedy or reduce the loss or damage suffered as a result of the discriminatory act.

(2) Inherent requirements of the job

16. "Discrimination" in the HREOC Act is defined as any distinction, exclusion or preference on the basis of a number of different grounds, including for example, race, sex and religion. But, the definition of discrimination does not extend to include any distinction, exclusion or preference in respect of a particular job based on the inherent requirements of the job. When an employee is unable to perform an essential activity of the position, they do not meet the "inherent requirements of the job". In this respect, an employer can defend themselves against a discrimination complaint on the basis that the person was unable to perform the essential aspects of that particular position.

17. There are few reported cases concerning such discrimination in the employment context. However, there are two recent reports from HREOC: Hall v NSW Thoroughbred Racing Board and Christensen v Adelaide Casino Pty Ltd.^[1] In both cases HREOC found that a distinction should not be made between a criminal record and the circumstances in which the offence was committed. In both cases the respondents argued 'the inherent requirement defence', viz., that good character was an inherent requirement for the license/job respectively. HREOC found that the complainants' criminal records would not prevent them fulfilling the requirements of the respective jobs.

18. These two decisions suggest that there must be a very close correlation between the criminal offence/record and the essential requirements of the job before the inherent requirement defence is successful.

19. In addition to the necessity of proving a tight correlation between the inherent requirements of the job and an individual's criminal record, employers currently shoulder the burden of identifying the inherent requirements of the particular position and of considering those in relation to the specific employee before this exemption may be invoked. This can prove very onerous for employers, and in turn therefore, provides an adequate degree of protection for persons with a criminal record.

(3) Spent convictions schemes

20. While the HREOC Act affords protection to people with criminal records on a case by case basis, spent conviction schemes rely on the notion that employers should be prohibited by law from taking into account certain specific categories of offence, particularly old, minor offences.

21. As the discussion paper notes, there are currently spent convictions schemes in seven of Australia's nine jurisdictions. They vary in relation to a number of factors, including for instance, which categories of offence can become spent and whether, and in what circumstances, a spent conviction can be revived if the individual commits further offences. This makes it difficult for employers to understand and fulfil their obligations in relation to spent convictions and difficult for employees to understand and exercise their rights. DEWR believes there is a strong case for greater harmonisation of the various state and federal schemes.

22. DEWR understands that the development of a national uniform model for a spent convictions scheme is being considered through the Standing Committee of Attorneys-General. In 2004 the Victorian Department of Justice released a discussion paper and invited comment from stakeholders on recommendations for a proposed model for a uniform spent convictions scheme. DEWR welcomes the progression of this issue. The Department recognises the benefits and supports the development of a national approach to the treatment of spent convictions.

Extent of discrimination on the basis of criminal record

23. DEWR notes that, on the figures provided by HREOC, unjustified discrimination against people with a criminal conviction appears to be relatively limited in extent. Of the 103 complaints finalised between 2001 and 2003.

• 82.5 per cent were declined;
• 15.5 per cent were conciliated; in other words, there was some type of agreement between the parties; unjustified discrimination may or may not have occurred; and
• only 1.9 per cent were reported to Parliament.

24. These figures, while of concern, indicate that incidences of discrimination on this basis are relatively rare. A clear case for further prescriptive government intervention has not been made.

Conclusion

25. While we would encourage employers to have clear policies discouraging discrimination on the basis of criminal record, and mechanisms to ensure that employers and employees are certain about their obligations in this regard, we are not convinced that further regulation is necessary. DEWR takes the view that, as a general principle, proponents of new regulatory interventions by government bear the onus of establishing that such interventions are necessary. We believe that at this point the case for introducing further legislation on this issue has not been made.

4. Strategies to assist in reducing discrimination

26. As the Commission has pointed out, the issue of discrimination on the basis of criminal record involves a careful balancing of different rights. DEWR recognises the social benefits that flow from persons with a criminal record obtaining gainful employment and agrees that such persons should not be discriminated against on the basis of their criminal record. However, this right needs to be balanced with the right of employers to employ the workers that best suit the needs of their organisation.

27. As we have made clear, we do not believe that further regulation or legislative intervention in relation to these issues is justified at this time. There are many compelling reasons why employers need the freedom to manage their enterprises with as few constraints as possible. If, however, the Commission forms the view that further strategies are required, we strongly suggest that efforts be concentrated on education strategies and the development of best practice guidelines.

28. The effective functioning of the labour market is assisted if good quality information about the characteristics of job seekers is available to prospective employers. Employers need to know the questions they can ask and the relevance of the answers they receive. Similarly, employees need to know what they are legally entitled not to disclose and what they should disclose to employers about their criminal record.

Education

29. The Government believes that education and raising public awareness are the most lasting and effective ways to minimise discrimination and promote tolerance of all members of the community. One of the central functions of the Commission is to raise awareness of, and respect for, human rights in Australia.

30. A key means of raising such awareness is through educational programs. The importance of the Commission's educative function is emphasised in existing Commonwealth anti-discrimination legislation (ss. 11 and 46C, HREOC Act; s.67 Disability Discrimination Act 1992; s.20, Racial Discrimination Act 1975; and, s.48, Sex Discrimination Act 1984 and s 53 Age Discrimination Act 2004 ).

31. The Government supports the important role that education and raising public awareness plays in HREOC's efforts to minimise discriminatory behaviour and promote tolerance. The Government is seeking to enhance the Commission's education function based on recognition that experience over recent decades has shown education to be the most powerful way of producing widespread systematic change in the area of human rights.

32. DEWR recommends that the Commission focus on education strategies as the primary means of addressing discrimination on the basis of criminal record.

Guidelines

33. Education alone, however, may not be sufficient to address the issue. In addition, we believe that the development of non-binding guidelines could provide a satisfactory standard of protection against discrimination on the basis of criminal record. Guidelines could provide sufficient clarity without the need to pursue regulatory measures.

34. As we have already discussed, employers may benefit from assistance in determining the inherent requirements of the job and in making decisions about particular employees, just as employees may benefit from guidance about what to disclose. In particular, in those professions where professional bodies or licensing institutions have not developed licensing rules which address the relevance of criminal records to that profession, guidelines would be of particular assistance.

35. A current example of the success of this approach is found in Guidelines on Workplace E-mail, Web Browsing and Privacy issued by the federal Privacy Commissioner. These guidelines are not legally binding but have been very widely adopted as a benchmark in the business community.

36. Any guidance material addressing this issue should widely construe the "inherent requirements of a job" to ensure that employers can take into account a range of factors when determining whether a person's criminal record will effect their ability to perform the job, including:

• the nature of the business;
• the nature of the workforce, including an assessment of the duty of care owed to the other employees;
• the attitude and expectations of clients towards the business and it employees;
• the amount of contact the person would have with clients; and
• the impact knowledge of the persons crime/s would have on other employees.

37. When considering the scope of the guidelines, the Commission must be cognisant that employers need capacity to exercise appropriate managerial prerogative.

5. DEWR programmes to assist ex-offenders in the labour market

38. The Department supports initiatives to help people from disadvantaged backgrounds to enter or re-enter the workforce and acknowledges that people with criminal records will probably find it more difficult than others to get jobs.

39. The disadvantage faced by ex-offenders and the social benefit to be gained by helping them to re-establish themselves in the labour market are recognised in a number of programmes funded by the Australian Government.

Job Network

40. Job Network is the primary avenue through which employment assistance is provided to job seekers. It is a national network of private and community organisations providing personalised assistance that is flexible and tailored to the individual job seeker. Job Network provides varying levels of service to job seekers, depending on their level of disadvantage in the labour market, their entitlement to income support and the length of time they have been unemployed.

41. Job Network recognises the additional barriers to employment that ex-offenders may face and works to address these through incentives that reward providers for achieving jobs for the most disadvantaged, together with the tools and flexibilities to ensure ex-offenders get the individualised help they need. For example, Job Network Members will work intensively with ex-offenders to successfully place them into jobs, for instance, the Job Seeker Account can be used for wage incentives to encourage employers to trial their suitability and thus overcome stereotypes. This is reflected in the record job outcomes being delivered through Job Network.

42. Job seekers typically register with Centrelink for income support and are then referred to Job Network members for employment services. While job seekers with an identified disadvantage can be referred to any Job Network provider of their choice at registration, job seekers can also choose their provider from a range of specialist Job Network members^[2] who have expertise in providing services to particular groups of disadvantaged job seekers such as Indigenous Australians, people with disabilities, youth and people from linguistically and culturally diverse backgrounds.

43. Currently, nearly 53,600 ex-offenders are being assisted through Job Network. Further information is at Attachment A.

Indigenous Employment Policy

44. Indigenous Australians are grossly over-represented at every stage of the criminal justice system representing 20 per cent of the whole prison population. Although a criminal conviction can add a substantial barrier to gaining employment upon release, research indicates that the high levels of contact with the criminal justice system are exacerbated by, and linked to, the fact that Indigenous people overall have the lowest economic status of any group in Australia.

45. The characteristics that put Indigenous Australians at high risk of offending are to a large extent the same characteristics that are barriers to employment: low levels of education, homelessness, mental health issues, addictions, poor health and inadequate housing. Other significant factors are social, community and family dysfunctions that occur in many communities. These dysfunctions can be attributed to a loss of traditional identity and a breaking down of social and cultural control mechanisms. These factors often become enmeshed forming a continuing cycle that contributes to a higher involvement with crime and an over-representation of Indigenous people as both perpetrators and victims of crime.

46. While racial discrimination or a criminal record undoubtedly contribute to poorer employment outcomes for Indigenous Australians generally, and Indigenous ex-offenders specifically, other factors are also likely to influence the significantly higher unemployment rates experienced by Indigenous Australians. These include geographical constraints that limit access to jobs, poor educational outcomes and increasing intergenerational welfare dependency.

47. A range of special measures are employed by the Australian Government to help address Indigenous disadvantage, such as the programmes under the Indigenous Employment Policy. See Attachment B.

Other DEWR programmes

48. DEWR has responsibility for several other programmes that may be of particular assistance to ex-offenders, including:

• Personal advisers;
• Personal Support Programme ; and,
• Job Placement, Employment and Training.

49. More detail about these programmes is located at Attachment C.

6. Conclusion

50. DEWR supports a workplace relations framework that maximises choice for workers and businesses and minimises regulatory constraints and interference by third parties. The flexibility afforded by such a framework plays a crucial role in the creation of high productivity and high pay workplaces.

51. At the same time however, DEWR wants to ensure that all Australians have adequate opportunities to participate in society. The Department supports initiatives to help people from disadvantaged backgrounds to enter or re-enter the workforce and acknowledges that people with criminal records probably find it more difficult than others to get jobs.

52. It has however, not been established that concerns about discrimination on the basis of criminal record are widespread or acute enough to warrant increased government intervention. DEWR is of the view that the current arrangements provide sufficient protection to employees and prospective employees from discrimination of this nature. It is acknowledged that issues around criminal convictions can arise in the workplace, but we do not believe that they are incapable of satisfactory resolution within the existing framework.

53. Clearly, the social benefit generated by getting persons with a criminal record into work has to be balanced against employers' right to do what is necessary to operate a successful enterprise. The development of an education strategy and best practice guidelines would benefit both employers and employees. These non-regulatory measures would assist in addressing the issue of discrimination on the basis of criminal record but at the same time, recognise the need for a careful balancing of interests, and, that often the employer is in the best position to make such decisions on a case-by-case basis.

Attachment A: Job Network in the Active Participation Model

The Active Participation Model of employment services commenced on 1 July 2003 with the third Employment Services Contract 2003-2006. The Active Participation Model provides an integrated whole of government service delivery model which simplifies access for job seekers and streamlines services. The model builds on the Australians Working Together welfare reforms announced by the Government in 2001 which aim to avoid entrenchment in welfare dependency. The model has four main elements:

• Centrelink - Centrelink staff determine eligibility and refer job seekers to appropriate services. Those assessed as requiring additional help to participate in social or economic activities, including ex-offenders, are linked to a Personal Advisor.
• Job Network - A key feature is that each job seeker is supported by a single Job Network provider who maintains regular contact with job seekers throughout their period of unemployment.
• Job Placement Organisations - These organisations from the broader recruitment industry are licensed along with Job Network members to provide recruitment services to employers and to place job seekers into vacancies.
• Complementary Programmes - Job Network members can refer job seekers to complementary employment and training programmes delivered by other Commonwealth agencies and State/Territory Governments which provide job seekers with specialised help to overcome barriers which prevent them from gaining work. In most cases, job seekers can continue to receive assistance from their Job Network member while participating in the complementary programme.

Under the Active Participation Model, 109 Job Network members and over 400 licensed Job Placement Organisations deliver Job Network, Job Placement and other related services to job seekers in over 2,700 sites across Australia.

Service Guarantee and Employment Services Code of Practice

Job Network members are bound by the Employment Services Code of Practice and a Service Guarantee. The Service Guarantee sets out the minimum standards for services delivered by Job Network members and ensures that job seekers are aware of avenues to make a complaint if the service is inadequate. It also requires Job Network members to deliver services in a manner sensitive to the job seeker's culture, circumstances and background, and tailored to both the job seeker's needs and local labour market conditions. The Employment Services Code of Conduct is an ethical framework that establishes how providers must deliver services to clients. These commitments are designed to protect the interests of clients and to ensure they are provided with quality services.

Services for job seekers

Job Network provides two major services for job seekers - Job Search Support and Intensive Support. The combination of Job Search Support and Intensive Support services, together with Mutual Obligation arrangements,^[3] form a continuum of service and activity for as long as the job seeker remains unemployed.

Most job seekers are eligible for Job Search Support services^[4] regardless of their entitlement to income support, including those seeking an apprenticeship or traineeship and retrenched workers notified of a termination date.

Intensive Support, which targets disadvantaged job seekers and those unemployed for more than three months, is available to job seekers aged 15-20 years,^[5] those who are in receipt of qualifying income support payments and Indigenous Australians participating in the Community Development Employment Projects scheme.

On referral to Job Network from Centrelink, job seekers typically commence with Job Search Support. Those identified as highly disadvantaged, such as many ex-offenders and others in need of early intervention, are referred to the more intensive component of Intensive Support (customised assistance) as soon as identified.

Job Search Support is aimed at placing job seekers in work as quickly as possible. Job Network members assist their clients to lodge their resume or 'vocational profile' on JobSearch, the national employment database, so that they can be auto-matched against available vacancies. Job seekers are notified of matches to suitable jobs through JobSearch kiosks, by telephone, email or, for those with mobile phones, via SMS messages. Job seekers can also view appointments and messages from employment service providers on their personal page on JobSearch.

Intensive Support provides assistance additional to JobSearch support including job search training, advice on job search approaches such as expanding the job seeker's employment-related networks, motivating job seekers to look for work; formal and informal training in job search skills and techniques as well as practical job search activities. Job Network members meet regularly with job seekers to advise on job search approaches, refine their vocational profile to improve job matches and to monitor their job search activities. Job Network members develop a Job Search Plan setting out activities that job seekers will undertake to improve their job prospects.

Mutual Obligation activity: If job seekers remain unemployed after six months, most activity tested job seekers (aged 18-49 years) are required to participate in a six month period of Mutual Obligation activity for six out of every 12 months while receiving income support. Mutual Obligation programmes such as Work for the Dole and Community Work are supported by Community Work Coordinators. Where possible, projects are aligned with the work experience needs of the job seeker. During these times, Job Network members have scheduled contacts with their job seeker clients to support their job search.

Intensive Support customised assistance: Job seekers remaining unemployed after 12 months (or earlier if they are highly disadvantaged) commence in Intensive Support customised assistance which is a six month period of assistance during which job seekers work one-on-one with their employment consultant. This service can include vocational training, subsidised employment, career counselling and participation in other complementary employment and training programmes. All job seekers remaining unemployed for 24 months have two periods of customised assistance placements with a second period of customised assistance commencing after 24 months.

Job Seeker Account and Training Account/Credit: The tailored assistance provided in Intensive Support is under-pinned by the Job Seeker Account. This Account provides a quarantined pool of funds which can be used to assist the job seeker to secure ongoing employment. There are extra supplements in respect of highly disadvantaged job seekers and those who live some distance from a provider.

From 1 July 2003 to 31 December 2004, $257 million in Job Seeker Account funds has been reimbursed to Job Network members, with nearly 410, 000 job seekers having received assistance. Funds were used to purchase a wide range of innovative, individually tailored and employment related interventions for job seekers such as work related training or licensing, clothing and equipment, transport and fares, employer incentives, relocation assistance and costs of commencing self employment.

A Training Account is available for mature age and Indigenous job seekers undertaking Intensive Support. Funding of around $59 million over three years from July 2002 was provided in the 2000-01 Budget to assist eligible job seekers to access work-related training.

Training Credits of up to $800 are also available to job seekers who successfully complete the required number of hours of Work for the Dole or Community Work. Eligible participants earn a 'credit' and have up to six months to use their Training Credit. Funding of $50m over three years from July 2002 was provided for eligible job seekers.

Job seeker assessment

DEWR has conducted significant research into identification of barriers that job seekers face in gaining employment including the effect of a criminal conviction record on a person's job search effort. This research culminated in the development of a profiling instrument to rank job seekers by their level of disadvantage.^[6] This profiling instrument, the Job Seeker Classification Instrument (JSCI),^[7] is administered by Centrelink and is used to determine highly disadvantaged job seekers to direct them to appropriate additional assistance. The JSCI is comprised of 14 factors, including the existence of any criminal conviction record that a job seeker may disclose, and is used to determine the level of disadvantage that the job seeker may possess.

Statistical research (relating to the JSCI) conducted by DEWR, based on administrative data of allowance recipients, has shown that a job seeker with a record of criminal conviction is more likely to continue to rely on income support in the longer run (i.e. one year or more) compared with others (i.e. those without any criminal record or having a record of offence but not receiving a custodial sentence). The chart below indicates that job seekers' criminal records have an impact on exit from income support allowance. The exit rate is lower for ex-offenders compared with non ex-offenders and is inversely related with the period of custodial sentence.

Figure 1: Exit rates from allowance by job seekers' criminal record status (derived from JSCI modelling data, 2000)

Source: DEWR administrative data.

Note: Derived from dataset used for JSCI modelling and consists of the flow of job seekers registering for allowance in the year 2000.

Therefore, job seekers who disclose that they have a criminal conviction have been allocated points in the JSCI to account for the likely disavdantage that they may face in their job searches. A distinction is also made between the period of the custodial sentence. Those receiving a custodial sentence of more than a month are allocated higher points to reflect the higher disadvantage compared with those receiving a custodial sentence of at most a month. Those with a conviction but receiving no custodial sentence are allocated fewer JSCI points.^[8]

Job seekers whose JSCI scores meet a DEWR-determined threshold are classified as highly disadvantaged and are eligible for early referral to Intensive Support customised assistance. Inclusion of a job seeker's criminal record as a factor in the JSCI has ensured that, as with other disadvantaged job seekers, those with a criminal record may get priority for early intervention.

In addition, job seekers who disclose a criminal conviction may be referred to a Centrelink specialist officer for a further assessment: the JSCI Supplementary Assessment of Special Needs. The ex-offender may then be offered alternative forms of employment assistance such as referral to the Personal Support Programme or to a psychologist.

Since disclosure of any criminal conviction is voluntary, delivering employment assistance to people with records of criminal conviction depends on their willingness to disclose. Privacy legislation protects a person's right to choose whether and under what limitations to disclose or not disclose their ex-offender status.

Job Network members may not pass on information to parties other than DEWR or Centrelink, except in circumstances where Job Network members have the approval of DEWR and the consent of the job seeker. DEWR recognises the relevance of disclosure of information and would work with Centrelink to ensure that there are no barriers to information flow between Centrelink and DEWR/Job Network.

If eligible job seekers choose not to disclose their ex-offender status and are not assessed as being highly disadvantaged on other factors, as with other eligible job seekers, they are referred to Job Search Support. If they remain unemployed after three months, they become eligible for Intensive Support.

Pathways for ex-offenders

Pre-release

DEWR and Centrelink have developed processes to meet prisoners in pre release programmes and in 'return to work' programmes for young offenders. All pre-release prisoners who are not receiving income support payments can register with Centrelink for Job Search Support Only.

Young people aged 15-20 years in adult prisons and juvenile detention centres, who are on partial release and available for work, are eligible for Intensive Support. In States with 'early release' programmes for prisoners aged less than 21 years of age, prisoners can register from the start of their early release programme and can be assessed for Job Network services.

Post-release

Job seekers released from prison are eligible for assistance in the same way as other job seekers. There are a number of ways Job Network members can interact with job seekers who are participants in corrective services programmes. As courts use more alternatives to sentencing such as parole, electronic detention, partial detention, 'Work First' options should become commonplace with Job Network members taking on a larger role in assisting people with a criminal conviction.

A Centrelink registrant who is already a participant in a State Government corrective services post-release employment programme may also be connected to a Job Network service.

Complementary Programmes

Under the Active Participation Model, Job Network members are encouraged to strengthen linkages with other service providers including programmes helping people with a criminal conviction.

There are currently over 60 complementary programmes which job seekers can access through their Job Network member including some that specifically target ex-offenders and others in which ex-offenders are included in the programme target group. During participation in complementary programmes, job seekers continue to actively look for work. Their job search progress is reviewed by Job Network members - the frequency dependant upon the level of participation in the complementary programme and the nature of the programme including whether it is part-time or full-time.

Several DEWR States Offices are working with State Departments of correctional services to develop pilot projects and to identify ways to improve employment services during the pre-to-post-release transitional period. Examples of jointly developed projects follow:

• NSW Client Strategy-Youth Offender Pilot project targets youth aged 18-20 at the John Morony Correctional Centre and registers them with Job Network members as fully Job Network eligible job seekers as they enter the Day Release Program. This pilot offers a strategy that might be applied to both adult and juvenile detainees in other States and Territories.
• The Queensland Government's Department of Education and Training Pre-Release Employment Assistance Programme (PREAP) features close cooperation and liaison between Job Network members and the PREAP providers.
• The Correctional Services Employment Pilot Project, funded by Corrections Victoria, provides services for prisoners in the pre-release and post- release period.

Job Network's performance

Participation

The following table shows the demographic characteristics of ex-offenders assisted through Job Network as at January 2005. They comprise 6.7 per cent of the total number of job seekers being assisted by Job Network.

Table 1: Ex-offenders being assisted by Job Network as at 14 January 2005

Note: Percentages do not add to 100 as client group categories are not mutually exclusive.

(a) Data are based on information gathered from job seekers for JSCI purposes and are subject to self disclosure.

Outcomes

In 2003-04, over 30,000 job placements were achieved for ex-offenders assisted by Job Network. Ex-offenders' share of job placements has increased in the current financial year from 5.9 per cent in 2003-04 of total job placements to 7.5 per cent by January 2005. Ex-offenders' share of long term outcomes has also shown an increase over 2003-04, up from 5.1 per cent to 6.1 per cent by January 2005.

Table 2: Total Job Placements - From 1 July 2003

Table 3: Long-term (13 week) outcomes - From 1 July 2003

Post Programme Monitoring Outcomes

The following tables show positive outcomes for ex-offenders after exiting from Intensive Support customised assistance, Intensive Support Job Search Training, Work for the Dole or Job Placement.

Table 4: Intensive Support customised assistance

Note: Job seekers who exited Intensive Support customised assistance between 1 July 2003 and 31 March 2004 and achieved outcomes by 30 June 2004. Positive outcomes include employment and education/training outcomes. Positive outcomes are less than the sum of employment and education/training outcomes because some job seekers achieve both an employment and an education outcome. Positive and employment outcomes exclude Indigenous job seekers who return to Community Development Employment Projects (CDEP) after leaving labour market assistance.

Table 5: Intensive Support Job Search Training

Note: Job seekers who exited Intensive Support job search training between 1 July 2003 and 31 March 2004 and achieved outcomes by 30 June 2004. Positive outcomes include employment and education/training outcomes. Positive outcomes are less than the sum of employment and education/training outcomes because some job seekers achieve both an employment and an education outcome. Positive and employment outcomes exclude Indigenous job seekers who return to CDEP after leaving labour market assistance.

Table 6: Work for the Dole

Note: Job seekers who exited Work for the Dole between 1 April 2003 and 31 March 2004 and achieved outcomes by 30 June 2004. Positive outcomes include employment and education/training outcomes. Positive outcomes are less than the sum of employment and education/training outcomes because some job seekers achieve both an employment and an education outcome. Positive and employment outcomes exclude Indigenous job seekers who return to CDEP after leaving labour market assistance.

Table 7: Job Placement

Note: Job seekers who were placed in a Job Network eligible job between 1 July 2003 and 31 March 2004 and achieved outcomes by 30 June 2004. Positive outcomes include employment and education/training outcomes. Positive outcomes are less than the sum of employment and education/training outcomes because some job seekers achieve both an employment and an education outcome. Positive and employment outcomes exclude Indigenous job seekers who return to CDEP after leaving labour market assistance.

Attachment B: Indigenous Employment Policy

The Indigenous Employment Policy has been specifically designed to service Indigenous job seekers through providing training and early access intervention programmes as individually tailored assistance that is available for all Indigenous job seekers. The focus of the programmes is to achieve employment outcomes using flexible approaches and strategies appropriate to local circumstances, to encourage private sector employers to develop and or change their recruitment practices and to commit to helping Indigenous workers stay in ongoing employment.

The Indigenous Employment Policy includes a focus on training and skill development linked to a specific job or outcome through initiatives such as the Structured Training and Employment Projects (STEP), Indigenous Capital Assistance Scheme, Youth Employment Consultants, Indigenous Self Employment Programme, Indigenous Small Business Fund , the National Indigenous Cadetship Project and Wage Assistance.

The Stage Two Evaluation of the Indigenous Employment Policy found that, overall, it has made a positive contribution to the employment prospects of Indigenous Australians, particularly in the private sector.

Community Development Employment Projects (CDEP)

CDEP provide employment and training opportunities for Indigenous Australians who voluntarily forgo their income support from Centrelink. CDEP projects also offer opportunities for Indigenous people and communities to establish their own businesses to create employment. Projects are managed by Indigenous organisations and communities in remote, regional and urban regions right across Australia for over 36,000 participants.

For a person to commence as a CDEP participant, they must be assessed as eligible by Centrelink and be accepted by the community, group or organisation. Prisoners on partial release would not be eligible for CDEP participation as notional eligibility for income support is a requirement for eligibility.

CDEP participants placed in schools or child care centres, however, would have a police check conducted.

Indigenous Employment Centres

Indigenous Employment Centres have been established to assist Indigenous people to move from participation in Community Development Employment Projects (CDEP) to unsubsidised jobs.

The Centres have a flexible Training Account to purchase training for Indigenous participants to address generic employability skill deficits and to teach specific skills that meet the needs of the local labour market.

Indigenous Employment Centres complement the services available under Job Network; participants can be in Job Network at the same time as receiving services from an Indigenous Employment Centre. Staff from both Indigenous Employment Centres and Job Network services work in close partnership and draw on their respective expertise and resources to provide comprehensive packages of assistance to clients. Upon release, Indigenous ex-prisoners are eligible for the same assistance through Job Network as other job seekers and, if assessed as Highly Disadvantaged, have immediate access to customised assistance.

There is potential for Indigenous prisoners who have gained training in business development, marketing and other work experience in prison industries to participate in DEWR's Indigenous Self Employment Program upon release.

In addition to these programmes, new apprenticeships are also available to offenders whilst in prison. However, data have not been collected on the numbers of offenders who have accessed these programs.

Particular barriers

Education

Statistics indicate that Indigenous Australians who have not completed schooling are 13 times more likely to be imprisoned. Improving educational opportunities in order to gain full-time employment upon release is widely regarded as a crucial means of reducing rates of recidivism. The constructive reintegration of an offender back into the mainstream community requires the offender to be equipped with adequate skills to function effectively and productively in the community.

Appropriate VET training for prisoners presented in a culturally sensitive manner is an important aspect of offender management.

Support structures

Many offenders have limited support structures. The provision of skills needs to be complemented by the provision of other services to address problems such as a lack of accommodation or lack of family and community support.

Shared Responsibility Agreements can be used as a mechanism to establish incentives and sanctions agreed by family and community that support offenders post-release.

Indigenous Youth

The Indigenous population is growing at a faster rate than the non-Indigenous population. Adolescence is a period in which separation from family and formation of identity are crucial and it is typically the time when young people are most likely to begin offending. Nearly 60 per cent of the Indigenous population in Australia are aged under 25 compared with 34 per cent of the non-Indigenous population.

Innovative Programme Examples

Boys from the Bush (Cape York, QLD)

The mission of the "Boys from the Bush" programme is to help 'at risk' young Indigenous Cape York and Torres Strait Islander participants to live happy and productive lives. It provides:

• diversionary programmes for young Indigenous offenders referred by Community Justice Groups and Courts;
• a prevention programme for participants to avoid engaging in criminal, anti-social and self destructive behaviours;
• knowledge and skills training relevant to living and working on Cape York Peninsula and the Torres Strait; and
• provides local Cape York Community Justice groups and the Courts with an effective intervention program and an effective alternative to remand in detention and custodial sentences.

The participants engage in producing essential oil products. The oils from these products have been hand picked and distilled in the bush. The pure oils are extracted in an environmentally sensitive manner from a variety of special species growing wild on Cape York and then are sold to local businesses and organisations.

STEP initiatives currently funded in Tasmania:

Introduced on 1 July 1999, Structured Training and Employment Projects (STEP) is one element of the Commonwealth's Indigenous Employment Policy (IEP). It provides flexible financial assistance for projects that offer structured training leading to lasting employment for Indigenous job seekers.

• Mabbyle Largenner STEP. This project is hosted by the Department of Justice (Community Corrections). The aim of the project is to assist Indigenous offenders into further education, employment and training opportunities and reduce the rate of recidivism. The project has been running for about nine years, the last seven of which have been funded through STEP.
• Risdon Education and Training STEP. This contract is with the Department of Justice (Risdon Prison). The project provides opportunities for five inmates to undertake New Apprenticeships whilst in custody. The contract is linked to the Colony 47 STEP (see below) and has already achieved its target of five commencements.
• Colony 47 STEP. This initiative is linked to the Risdon Education and Training STEP. The aim of the project is to provide both pre and post release mentoring support for inmates who are undertaking New Apprenticeships in Risdon prison. (A recent amendment extended assistance to inmates of the Ashley Youth Detention Centre). This mentor support is to assist participants in finding and maintaining employment. Currently the mentor is working with the first of the five inmates undertaking New Apprenticeships with Risdon.

Attachment C: Other DEWR Programmes

Personal Advisers

Centrelink is the gateway to the social support system. Located in every Centrelink office, Personal Advisers provide extra help to assist eligible mature age workers, parents with school age children, Indigenous Australians and people with special needs (including those recently released from prison) to get a job or to participate as fully as possible in their community. Personal Advisers are a major part of Centrelink's enhanced and individualised approach to service delivery.

Centrelink Personal Advisers provide case-by-case assessment and assistance to people who really need it so they have the best possible chance of returning to work or staying involved in the community. They work with people to identify goals and options, and to develop a plan to achieve their goals over time.

Since September 2002, Personal Advisers have interviewed a total of 17,740 ex-offenders.. These clients are entitled to a one hour interview plus follow-up interviews if needed. For example, if the client has non vocational issues that need to be addressed before they can actively seek employment, they will be referred to the most appropriate service for assistance. This could include another Centrelink specialist such as a Psychologist or a programme such as the Personal Support Programme.

Of the 17,740 ex-offenders that have been interviewed, approximately 1,200 have been referred to a Centrelink specialist officer, mostly to Occupational Psychologists and Centrelink Disability Officers.

Personal Adviser Evaluation Findings in Relation to Ex-Offenders

In September 2004 the Social Research Centre produced a Personal Adviser evaluation report for the Department of Family and Community Services.

The "Better Assessment at Risk/ Personal Adviser Evaluation" included 10 selected prison release clients in metropolitan Melbourne, Sydney and Perth and selected regional areas in South East Queensland (Nambour, Toowoomba and Warwick). This group were interviewed in depth during May/ June 2004 about their recent experience with a Centrelink Personal Adviser and their perception of how the Personal Adviser was able to help them find work. The research identified the issues and barriers for prison release clients when looking for work and staying in the workforce.

Key Findings

The prison release clients can be grouped by two main traits: those who are classified as job ready and engaged with the community and those who have complex vocational and non-vocational barriers to workforce and social participation.

Job Ready Prison Release Clients

This group do not view their criminal record as a barrier to getting back into the workforce, and they are offended by being classified in the Centrelink system as at risk of long-term unemployment. They have a strong family support system and they see themselves as skilled and in control of their work lives.

Non-Job Ready Prison Release Clients

At the other end of the spectrum were prison release clients who had served longer-term sentences. They were very uncertain of their prospects after leaving prison. They had limited family support with some problematic relationships. This group was challenged by the many issues to take care of when they encountered life on the outside, and they often ended up in a transient lifecycle. Some of the practical issues faced by this group included finding safe and affordable accommodation, registering with Centrelink, meeting activity test requirements, meeting parole obligations, attending health/drug clinics, obtaining counselling, arranging access to children and managing financial responsibilities.

Seeing a Personal Adviser in prison before leaving was perceived by this group as important - but only if their records were successfully transferred to Centrelink and then later the Job Network so they could experience a sense of continuing support and of being understood.

In summary, the Better Assessment at Risk/ Personal Adviser evaluation identified the breadth of needs for those with a criminal record and for those recently released from prison. Those with lesser offences were resentful at being labelled at risk of unemployment - they had the confidence and assurance in themselves to get on with their working lives. This was not the case for those with more complex needs who required additional support to help them transition from prison into a stable work environment.

Personal Support Programme

The Personal Support Programme (PSP) bridges the gap between crisis assistance and employment assistance programmes. It provides assistance to people whose non-vocational barriers (such as homelessness, drug or gambling problems or social isolation) prevent them from getting a job or benefiting from Job Network or other employment assistance services.

The programme is open to people of workforce age receiving income support, as well as those aged 15-20 who do not receive any payment but are registered as job seekers with Centrelink. Eligibility for PSP is assessed by Centrelink. The programme will assist 45,000 participants in 2004-05.

There are currently 148 organisations covering 600 sites across Australia funded to deliver PSP services. Around 40 per cent of PSP providers offer specialist assistance, for example targeted to people with mental health issues, ex-offenders or people facing drug and alcohol issues. A number of PSP services are working with participants prior to their release from jail.

Participants receive assistance to help them tackle the non-vocational barriers that are holding them back. Services provided can include assessment (such as psychological assessment or functional capacity assessment), counselling (general counselling, or for specific issues such as grief counselling), referral and advocacy (linking participants into their community and accessing services), practical support (such as assistance to find stable housing or with transport) and development of personal skills (for example anger management or self-esteem training).

Programme data do not separately identify participants with ex-offender histories.

Job Placement, Employment and Training Programme

The Job Placement, Employment and Training (JPET) programme is an Australian Government initiative administered by the Department of Employment and Workplace Relations.

The objective of the JPET program is to assist disadvantaged and disconnected young people 15 to 21 years of age, particularly those who are homeless or at risk of homelessness, to overcome personal and social barriers and engage more fully in the life of their communities to achieve greater social and economic participation.

The focus of the program is to help young people stabilise their situation and then address their personal and social non-vocational barriers so they can re-engage with education or make the transition to employment assistance programs such as Job Network.

An economic outcome may not be possible in the short term for some young people, such as those who have been offenders. JPET recognises that a first step is helping participants be positively engaged with their community. After stabilising their situation, JPET concentrates on building participants' skills and abilities.

There is no single model for JPET service delivery. Service may include, as appropriate to the individual, and their local community: case management, group work, casual and drop-in assistance, brokerage, training and learning activities, and counselling.

For the period July 2003 - June 2004, 2943 clients presented who were either ex-offenders or were currently involved with the Juvenile Justice system. For the 2004-05 financial year (as at January 2005), 1541 current or ex-offenders presented to JPET for assistance. These figures represent about 20 per cent of the JPET client base.

1. HREOC Report No 19; HREOC Report No. 20.
2. As at January 2005, 27 organisations (operating from 112 sites) were contracted to deliver specialist services (29 sites for Indigenous Australians, 30 for job seekers from other than main English speaking backgrounds, 30 for people with a disability, 15 for young job seekers and 8 for Other).
3. The Federal Government's employment policies are supported by the concept of Mutual Obligation which recognises that the community should support unemployed people and that unemployed people should make a contribution to the community. In return for unemployment allowances, people must be prepared to actively seek paid work, to take part in employment assistance or to undertake activities such as part-time work or voluntary work and/or education and training activities.
4. Except for p eople working in paid employment for more than 15 hours a week; full time students; overseas visitors on working holiday visas; people prohibited by law from working in Australia .
5. If not in full time education or training or working 15 hours or more a week.
6. The level of disadvantage is measured by the probability of becoming a long-term job seeker receiving income support.
7. More information on the JSCI is provided at www.workplace.gov.au/JSCI
8. The higher the JSCI points a job seeker receives, the higher is the disadvantage that the job seeker is likely to face in the labour market.

© Human Rights and Equal Opportunity Commission. Last updated 4 May 2005.
Your comments and feedback are welcome. Email us at: webfeedback@humanrights.gov.au