DISCRIMINATION IN EMPLOYMENT ON THE
BASIS OF CRIMINAL
RECORD
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Submission No. 50 - Gippsland Community Legal Service
Jane Anderson - Principal Solicitor / Co-ordinator
To: Stephen Duffield |
Our ref: JA |
|---|
Dear Mr Duffield
Re: Discrimination in Employment on the Basis of Criminal Record
Thank you for the opportunity to make a submission in response to the Human Rights and Equal Opportunity Commission's Discussion Paper entitled 'Discrimination in Employment on the Basis of Criminal Record'.
Gippsland Community Legal Service
Gippsland Community Legal Service (GCLS) is an independent non-profit generalist legal service. The mission of GCLS is to ensure access to justice for all members of the Gippsland community by providing legal advice and advocacy, empowering individuals and groups through community education, and advocating for law reform to remove systemic injustice.
GCLS has been committed to providing accessible legal services to prisoners in the Gippsland region. Specifically, GCLS has:-
- participated in the Transitional Assistance Program; and
- provided individual advice to prisoners;
at Her Majesty's Prison Won Wron on a monthly basis for more than four years.
Over the same period GCLS has participated in a youth mentoring program titled New Trax, that has involved serving and former prisoners from Won Wron as staff members/mentors.
Consequently, GCLS has received valuable insights from prisoners and former prisoners in relation to their experiences in employment. GCLS has also provided advice on a regular basis to people with criminal records who have not been imprisoned. These insights have formed the basis of this submission.
Experiences of people with a criminal record regarding discrimination in employment
Clearly, people with criminal records, face the stigma of their record and the social effects of the stigma. This is dramatically increased for people who have also been incarcerated. Prisoners, upon release, are in a position of trying to reestablish themselves in the community by forming relationships and gaining employment. Many prisoners attempt to create connections with people who will be a positive influence and support for them.
Society portrays an attitude that people with a criminal record (let alone a record of imprisonment) simply cannot be trusted and are dangerous. Often employment opportunities that require a criminal record check do not display a policy about what criminal records exclude a person from being successful in obtaining the employment. Consequently, prisoners can be discouraged from even applying for jobs that require a criminal record check or if they do apply, are not successful. In the search for a 'new start' some prisoners may use a false name or deny their criminal record, and this can lead to many consequences, including criminal charges.
The effect of the stigma can also influence prisoners to apply for non-skilled jobs (where criminal record checks are often not conducted) and jobs with people they have met through prison. This may hamper people from establishing the new relationships that they are seeking.
We are aware of a community organisation that employed former prisoners. Most of the employment was successful, however there was a great deal of society supervision of both the employer and employee. This produced an increased stress on the former prisoners and on some occasions may have led to re-offending and the break down of the relationship where that occurred. The practice of employing former prisoners has ceased.
We are of the view that sufficient guidance is not available to employers to assist them in determining the inherent requirements of a job and in making decisions about particular employees. Few employers appear to have policies about the need for a criminal record check and what disclosures preclude a person from employment.
We not have any specific examples of possible discrimination on the basis of criminal record because in our experience people with a criminal record have simply not applied for jobs where a criminal record check is conducted.
It is our view that the current legislation, where it exists, is inadequate to address discrimination on the basis of criminal record. The Human Rights and Equal Opportunity Commission Act is not enforceable and discrimination on the basis of criminal record is only specifically prohibited in Tasmania and the Northern Territory.
Recommendations
- That legislation be enacted by the Commonwealth, State and Territory governments to provide that discrimination on the basis of a person's criminal record in employment and other areas of life is unlawful.
- That legislation be enacted by the Commonwealth, State and Territory governments to provide enforceable remedies including compensation and reinstatement, for people who have been discriminated against on the basis of criminal record.
- That Commonwealth, State and Territory governments provide for education regarding any legislation enacted to prohibit discrimination on the basis of a person's criminal record.
- That Commonwealth, State and Territory governments take positive steps to address the special needs of people with a criminal record, including the inherent stigma, to realise their individual rights and freedoms.
If you have any questions, please do not hesitate to contact me.
Yours Faithfully,
Jane Anderson Principal Solicitor / Co-ordinator