Human Rights and Equal Opportunity Commission Website: Human Rights

DISCRIMINATION IN EMPLOYMENT ON THE
BASIS OF CRIMINAL RECORD

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Submission No. 54 - Brimbank Melton Community Legal Centre

For further information:

Hugh de Kretser, Principal Community Lawyer
T 03 9363 9927
E hughdk@communitywest.org.au

DISCRIMINATION IN EMPLOYMENT ON THE BASIS OF CRIMINAL RECORD

"If discrimination on the grounds of criminal record is to be taken seriously, effective remedies are needed. Complainants need enforceable rights and formal enforcement mechanisms."

Australian Law Reform Commission, Spent Convictions Report (1987), page 53

Submission to the Human Rights and Equal Opportunity Commission

February 2005

Introduction

In December 2004, the Human Rights and Equal Opportunity Commission circulated a Discussion Paper on the issue of discrimination on the basis of criminal record. The Commission invited comments on the issue. This submission has been prepared in response to the Discussion Paper.

The Brimbank Melton Community Legal Centre

The Brimbank Melton Community Legal Centre provides free legal services to disadvantaged people who live, study or work in Melbourne's outer Western region. The Centre also undertakes community legal education, law reform and policy work.

The Centre is particularly interested in the issue of criminal record discrimination because:

the Centre has a strong tradition of casework and law reform relating to the human rights of prisoners; and
the author of this paper has around 5 years specialist experience in employment and discrimination law at a leading Australian commercial law firm.

The Centre is a program of Community West Inc, an independent, not-for-profit, multi-program community organisation based in the Melbourne suburb of Deer Park.

Submissions of the PILCH Homeless Persons' Legal Clinic and the Fitzroy Legal Service

The Centre has had the benefit of reading the thorough submission on this topic prepared by the PILCH Homeless Persons' Legal Clinic, and the broader submission of the Fitzroy Legal Service on "Criminal Records in Victoria: Proposals for Reform".

The Centre endorses the recommendations made in the PILCH and FLS submissions.

This submission seeks to supplement the PILCH and FLS submissions with the Centre's own experience in this area.

Summary

Freedom from discrimination on the grounds of criminal record is a human right. Criminal record is often an unreliable indicator of character or of future conduct. Despite this, there are strong prejudices in society against former offenders based on negative stereotypes.

It is in society's interests that former offenders be given a fair opportunity to rehabilitate. Effective protection from criminal record discrimination in employment is central to this.

At present, there is no consistent effective protection from criminal record discrimination in Australia.

There is a clear and compelling need for federal legislation which provides effective sanctions against discrimination on the grounds of criminal record.

Case Study

The Centre recently acted for a woman who was dismissed from her job as a personal carer. For privacy and confidentiality reasons, we will refer to our client as "Judy".

Case Study: Judy's story

"I am a 41 year old personal carer. I have four children ranging in age from seven to twenty-one. I had a troubled and unstable youth. My mother and my step-father used to physically and verbally abuse me. I left home when I was 16 years old. As a young woman, I associated with the wrong crowd. From the ages of 19 to 31, I was charged with and found guilty of nine offences of assault, prostitution offences, possessing pistol without a licence, handle/receive/retain stolen goods and possess cannabis.

The total penalties imposed for the nine offences were:

fines totalling $550;
a good behaviour bond; and
100 hours unpaid community work.

The last convictions, use and possess cannabis, were entered over nine years ago. I was fined an aggregate of $150 for these two charges.

I have had no charges or offences since 1 June 1995.

In April 2000, I started volunteering at the local youth club. I volunteered on a part-time basis for over two and a half years. I used to run the play group for young children and their parents without supervision. I would sort clothes and do odd jobs and help with the gardening. I only ever received good feedback about my work at the youth club and one of the co-ordinators wrote me a reference.

In 2002, after my youngest child started at kindergarten, I took a job cleaning the kindergarten. I still do this job. I clean the kindergarten four nights a week and on Saturday mornings. I have been entrusted with the keys to the kindergarten for more than two years and there have been no complaints or issues about my work or trustworthiness.

Near the end of 2002, I was awarded a government traineeship in aged care. The traineeship involved studying for the Certificate IV in Community Services (Aged Care) Work. To get the certificate, I had to complete a work placement. I did my work placement at Company X where I worked as a personal carer. I completed a police check form when I joined up with them. They were aware of my offences. I only received positive feedback on my performance from them.

After around a year working with Company X, I applied for a job working for Company Y, because the work was much closer to where I lived. Company Y provided personal care labour hire services.

I worked for the company for around three months. I only received positive feedback. I had a three month review and was made permanent part-time. A few days after the review, the company called me and said they needed a copy of my police check for my file. They sent me the consent form in the mail. I filled it out and returned it to them.

I continued working for the company and was given a pay rise.

Around three weeks after I sent the form off, one of the supervisors called me and said she had bad news. She said she had received a copy of my police check and there were a number of charges on there. She mentioned the cannabis charge in 1995 and said there were six other charges. I asked her to send me a copy of the check so I could see what she was talking about. She said she couldn't do that. She then said that the company could not keep me on and she had to terminate my employment.

I was very distressed at being dismissed on the spot and started crying. I wasn't given any chance to explain the background to the offences.

I felt humiliated at the way I was treated by the company. Losing the job put me in real financial difficulty. I was tempted to go back to working on the streets. I felt depressed. I had been trying to make a fresh start and put my past behind me. I am really worried that I will never be able to move on."

Case study: outcome

Judy was fortunate that she had been working for more than three months and consequently was able to bring an unfair dismissal application against her employer.

The company said that it had a blanket policy of refusing to employ any person who could not produce a clear police check. The company claimed that its policies were necessary due to the contractual obligations imposed on it by its clients (ie: the organisations which used its labour services such as local government, care agencies, nursing homes etc). The company said that such a policy was standard in the personal care industry.

The matter was resolved on a confidential basis.

The company has apparently now amended its policies so as not to provide for an outright ban on employing any person who fails to return a clear police check.

The case highlighted:

the serious prejudice of the employer against any criminal record;
that the prejudice may be widespread across the industry (informal research we conducted supported the fact that other organisations in the industry refuse to employ if an applicant cannot produce a completely clear police check);
the ignorance of several industry employers we spoke to as to the criminal record provisions in the HREOC Act;
the limitations of unfair dismissal law - our client was fortunate that she was employed for more than three months before being terminated;
the need for enforceable protection against criminal record discrimination requiring, at the least, the employer to make employment decisions based on sound, defensible criteria assessing the requirements of the job against the candidate's particular circumstances; and
the need for protection from procurement discrimination - discrimination caused by, or encouraged by a third party, in this case the organisations which supposedly imposed the requirement on the labour agencies to provide only workers who had free criminal records.

Freedom from discrimination on the grounds of criminal record is a human right

Article 26 of the International Covenant on Civil and Political Rights guarantees the right to freedom from discrimination and equality before the law. It requires that the law "shall prohibit discrimination and guarantee effective protection against discrimination on any ground such as race, colour, sex, religion, political or other opinion, national or social origin, property, birth or other status" (emphasis added).

The HREOC's Discussion Paper at page 11, recognises that international jurisprudence indicates that discrimination on the grounds of criminal record falls into the "other status" category.

Freedom from discrimination on the grounds of criminal record is a human right.

Australia became a party to the ICCPR in 1980. By doing so, Australia committed the full implementation of the rights set out in the ICCPR at a domestic level.

The right to freedom from discrimination on the grounds of criminal record is supported in the employment context by the International Labour Organisation Convention 111 Discrimination (Employment and Occupation) Convention 1958 which Australia ratified in 1973.

Policy considerations and balancing interests

Criminal record is a highly emotive issue. Former offenders are clearly vulnerable to the risk of discriminatory action being taken against them in the employment context because of their criminal history. There are strong prejudices prevalent in society against former offenders based on negative stereotypes arising out of their criminal history.

The goal of the law should be to protect former offenders from arbitrary decisions made by employers and others based on those negative stereotypes. Former offenders should be entitled to have decisions made in respect of their employment or potential employment based on merit and free from prejudice.

A criminal record should only be able to be taken into account in employment decisions in very limited circumstances such as:

where the nature of job requires particularly high character or trust such as the judiciary, the legal profession, or the police;
where the risk or consequences of reoffending outweighs the interests of the candidate in being given a fair opportunity to reform eg: where a candidate with a history of child sex offences is applying for a job working with children, or where a candidate with recent history of fraud or dishonesty offences is seeking a position in a bank.

Where a criminal record may be relevant to employment, employers must undertake a sensible and fair assessment of the criminal record, the requirements of the position, and all of the relevant surrounding circumstances including:

the nature of the offences;
the penalties imposed;
when the offence occurred;
the employee's explanation;
the employee's performance record in the job and in previous jobs; and
any references provided and past work history.

The critical issue is that any decisions about a former offender must be made objectively based on sound reasoning and free from arbitrary prejudice against their criminal record.

Past criminal behaviour is often an unreliable indicator of character or of likelihood of future criminal behaviour

The issue of criminal record in employment generates strong negative prejudices. Many employers may fear that a worker with a criminal record is not trustworthy or of good character and is more likely to engage in future criminal behaviour. These attitudes and prejudices need to be challenged.

It is has been generally accepted that a criminal record is often an unreliable indicator of future behaviour or character.

The Australian Law Reform Commission, in 1987 delivered its report on Spent Convictions. The ALRC made a number of important comments and recommendations which are relevant in the context of this inquiry.

The Commission stated at page xii that:

"an old conviction, followed by a substantial period of good behaviour, has little, if any, value as an indicator of how the former offender will behave in the future. In such circumstances, reliance on the old conviction will generally result in serious prejudice to the offender which will outweigh to a great degree its value as an indicator of future behaviour."

In August 2004, the Standing Committee of Attorney's General released a discussion paper on "Uniform Spent Convictions: A Proposed Model". At page 14 the paper supports the ALRC's position:

"In absence of re-offending, the relevance of a criminal conviction diminishes over time. Research into the recidivism of convicted offenders indicates that the likelihood of committing further offences diminishes over time. Essentially, the older a conviction, the less relevance it has in predicting an individual's character and future offending behaviour. In these circumstances, the prejudice that a past offender may experience as a result of an old conviction will generally outweigh its value as an indicator of their future behaviour."

The paper continues at page 53:

"with time, in the absence of further offending, the relevance of a criminal conviction diminishes. The older a conviction is, the less relevance it has in predicting an individual's character and future offending behaviour. Essentially, determinations of a person's character should not be based upon a spent conviction."

There is clearly a danger in using criminal record as a basis on which to judge future behaviour or character, particularly when a significant period of time has elapsed since the last criminal behaviour.

It is in society's interest to give former offenders a fair go

The casework conducted by this Centre on this topic supports arguments that discrimination on the grounds of criminal record:

marginalises former offenders;
detrimentally affects self-esteem;
discourages rehabilitation; and
increases the chances of reoffending.

It is in society's interest that former offenders be given a real and fair chance to rehabilitate. Access to meaningful employment is a major tenet of the rehabilitation process allowing a former offender to participate more effectively in society and promoting self-esteem. Community support for rehabilitation will reduce the risk of re-offending.

It is in society's interest that former offenders should be given a fair go to rehabilitate free from unfair prejudices or barriers to full participation in society.

The case for effective protection from criminal record discrimination is compelling

For the reasons set out above, it is submitted that the case for effective protection from criminal record discrimination is compelling.

There is no effective protection in Victoria

In Victoria, there is no law which prohibits discrimination on the grounds of criminal record.

There is no effective protection under Federal Law

At the Federal level, there is no law which prohibits discrimination on the grounds of criminal record.

Under the Human Rights and Equal Opportunity Act 1986 (Cth), the HREOC has power to mediate a complaint of discrimination in employment on the grounds of criminal record and make recommendations and a report to Federal Parliament.

The legislation however, does not render such discrimination unlawful and the Commission does not have enforcement powers in respect of a complaint. In the two reported cases where the Commission has made findings of discrimination on the grounds of criminal record, the Commission's findings and recommendation were ignored by the employers.

The lack of enforcement powers damages the credibility of the Commission and supports arguments that making a complaint may be futile.

The absence of a clear prohibition against criminal record discrimination is confusing and contradicts Australia's legal commitment to fully implement its international human rights obligations.

Position in other States and Territories

There is legislation in Tasmania and the Northern Territory prohibiting discrimination on the grounds of "irrelevant" criminal record and providing enforceable remedies.

Unfair dismissal law provides only limited protection

The unfair dismissal jurisdiction provides some limited protection from discrimination in employment on the grounds of criminal record.

The established unfair dismissal jurisprudence supports the general principle that employers must act on a reasonable and well-founded basis when taking action against an employee because of their criminal history.

The most relevant case for the present purposes is Stock v Narrabri Nominees WAIRC (1990). In that case, the applicant was employed as a Tyre Fitter on 22 May 1990. The applicant:

"since 1980 had been convicted of a number of offences mainly offences of dishonesty...The most recent conviction was recorded at the end of April last. It was for stealing and resulted in him being placed on probation for a period of eighteen months".

The applicant's criminal record became known to the employer after another employee informed the employer of the applicant's history and after a number of local residents rang the employer when they saw an advertisement in the local paper with a photo of the employer's staff. The employer was happy with the applicant's performance but summarily terminated him a few days after the advertisement.

The Commission in the case recognised the principle that "an employee is not under any duty to volunteer facts regarding his personal antecedents even if such facts are likely to affect the employer's willingness to employ him".

The Commission noted that the employer was apparently less concerned about the actual convictions as he was about the potential adverse reaction to his business from the local community. The Commission noted that the applicant "was a good employee" and stated that the employer did not have "any reason to distrust the Applicant as a result of their dealings with him apart from his criminal record".

In all of the circumstances, the Commission held that the applicant had been unfairly dismissed.

The jurisprudence in this case, and other decided unfair dismissal cases dealing with criminal records, support the general principle that there should be protection from unfair action taken on the grounds of criminal record.

Importantly, there are real limitations with the protection afforded to former offenders by unfair dismissal law:

a former offender must have first been employed to bring an unfair dismissal action. Unfair dismissal law will provide no cause of action if an employer refuses to hire a candidate on the grounds of their criminal record;
the three month qualifying period provisions under federal unfair dismissal law (see section 170CE(5A) and (5B) of the Workplace Relation Act 1996 (Cth)) mean that in most cases, an employee who is dismissed in the first three months of employment will be prevented from bringing an unfair dismissal claim. Most police checks would be returned to an employer in the first three months and this would likely be a trigger for dismissal. There are other exemptions which may prevent a claim also (eg: casual employment exemption);
there is no specific protection against discrimination on the grounds of criminal record under unfair dismissal law. The Australian Industrial Relations Commission only applies general principles of fairness;
unfair dismissal law only protects against termination. It does not provide remedies against other less favourable treatment in employment on the grounds of criminal record eg: demotion.

Accordingly, while unfair dismissal law provides some protection from unfair treatment in employment on the grounds of criminal record, that protection is limited.

Spent convictions legislation provides only limited protection

Most States and Territories (but not Victoria and South Australia) have spent convictions legislation which in broad terms allows a former offender to deny that they have a criminal record once the relevant crime free period has expired after the most recent offence.

Western Australian and ACT spent convictions legislation makes discrimination on the grounds of "spent convictions" unlawful.

Spent convictions legislation affords some limited protection from discrimination on the grounds of criminal record. However, this protection from discrimination is clearly insufficient. Most importantly, the denial of protection from discrimination before the expiry of the relevant crime free period is unfair and arbitrary.

The ALRC in its report into spent convictions stated at page 49 that "Many convictions will have ceased to be relevant to particular decision making about the offender well before the 10 year period ends."

The ALRC argued that "Former offenders who are discriminated against should be able to have that decision tested irrespective of the age of the conviction or whether or not it has become spent."

There is a clear need for effective protection at Federal level

The need for consistent enforceable protection across all Australian jurisdictions is obvious.

The most sensible means of achieving consistent protection is by providing that protection at the Federal level by amending the HREOC Act.

The ALRC made this recommendation in its report into spent convictions in 1987. The ALRC recommended that the Federal Parliament enact laws to prohibit "unreasonable discrimination" on the grounds of criminal record. The ALRC's preference was for the laws to be modelled on the Sex Discrimination Act 1984 (Cth) which creates enforceable causes of action and remedies in relation to sex discrimination.

The ALRC also recommended that the Federal Government encourage the States and Territories to enact complementary laws.

Preferred model

The Centre supports the use of a model based on the racial, disability and sex discrimination federal legislation.

The legislation must provide for effective enforceable remedies including fines made payable to complainants so that there is an effective deterrent against discriminatory behaviour.

Protection must cover recruitment

The legislation should apply to discrimination during the recruitment stage. It goes without saying that much employment-based discrimination on the grounds of criminal record will occur in the recruitment process where employers refuse to hire candidates on the basis of information about their criminal records.

The legislation must prohibit asking discriminatory questions

Given the highly prejudicial nature of criminal record information, and the difficulty for workers or potential workers to understand their obligations as to disclosure (including their rights concerning disclosure of "spent convictions"), the legislation should contain provisions which prohibit an employer asking questions of an employee or job candidate about their criminal record.

These provisions could be based on sections 100 and 101 of the Equal Opportunity Act 1995 (Vic). The prohibition would not cover those areas exempted from the operation of the laws (inherent requirements, specific exemptions for work with children etc).

The legislation must prohibit authorising or procuring discrimination

There must also be a prohibition on authorising, procuring or assisting in the unlawful discrimination. This would prohibit for example, a company which uses labour hire firms, from requiring that the labour hire firms only supply workers who have clear criminal records. The prohibition could be based around sections 98 and 99 of the Equal Opportunity Act 1995 (Vic).

Consideration should be given to a reverse onus of proof

In practice, it may be very difficult for a complainant to prove that the reason, or one of the reasons they were treated less favourably was their criminal record.

For this reason, and because of the high risk of prejudice against criminal records, consideration should be given to reversing the onus of proof in any new criminal record discrimination legislation, along the lines of Part XA of the Workplace Relations Act (which deals with freedom of association).

The legislation could provide that if a complainant can establish that there has been less favourable treatment, the onus is on the employer to prove that it did not engage in the less favourable treatment because of the complainant's criminal record (see section 298V of the Workplace Relations Act).

Inherent requirements defence?

The Centre has considered the comments set out in the PILCH submission about the "inherent requirements defence" presently available under the HREOC Act. The Centre endorses the concerns of PILCH in this regard.

However, the Centre recognises that the inherent requirements defence;

is a generally accepted defence to discriminatory conduct in the employment context;
is a flexible mechanism to implement policy intentions to distinguish between unfair and unlawful criminal record discrimination and fair and lawful discrimination (for example where the work is with children).

If an inherent requirements defence is adopted, it is important the defence is strictly limited. There is a clear danger of employers claiming that "trust and good character" is an inherent requirement of any position and consequently that nearly any criminal record disqualifies a candidate.

Consideration should be given to codifying into the legislation the current High Court and Federal Court jurisprudence which strictly limits the availability of the defence.