DISCRIMINATION IN EMPLOYMENT ON THE
BASIS OF CRIMINAL
RECORD
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Submission No.
60 - Victorian Aboriginal Legal Service Cooperative Inc.
Head Office:
6 Alexandra Parade, Fitzroy VIC 3065
PO Box 218, Fitzroy VIC 3065
Ph: (03) 9419 3888
Fax: (03) 9419 6024
Toll Free: 1800 064 865
Discrimination in Employment on the Basis of Criminal Record
Discussion Paper December 2004
(submitted 3 March 2005)
Thank you for the opportunity to comment on the Discrimination in Employment
on the Basis of Criminal Record Discussion Paper dated December 2004
(Discussion Paper).
VALS supports the principle of protecting Australian citizens from
discrimination in employment on the basis of criminal record. VALS has
produced the following submissions that support the introduction of a
spent conviction scheme as a means to attempt to eliminate discrimination
in employment on the basis of criminal record:
- Submission to Department of Justice in response to ‘Uniform
Spent Convictions: A proposed Model Discussion Paper August 2004 (submitted
11 October 2004).
- Submission to Scrutiny of Acts and Regulations Committee in response
to ‘Inquiry into Discrimination in the Law’ (submitted
June 2004).
- Submission to Department of Justice in response to ‘Working
with Children Bill 2005 Discussion Paper’ December 2004 (submitted
March 2005).
The Extent and Nature of Discrimination in Employment on the Basis
of Criminal Record
2(d) What special difficulties face juveniles with criminal records?
Special difficulties face juveniles with criminal records and these
difficulties have led to spent conviction schemes distinguishing between
juveniles and adults. For instance, in Queensland a conviction becomes
spent for a juvenile after five years and a conviction becomes spent
for an adult after 10 years [ Criminal Law (Rehabilitation of Offenders)
Act (QLD) 1986] . This distinction is justified because juvenile offenders
are still maturing which shows they are capable of reform. Also, juvenile
offenders should be given the chance to lay their past to rest and get
on with their lives without further problems arising. Often if juveniles
are not given this chance they become entrenched in a criminal life style
and it is hard to break free from this lifestyle if it is all that you
have known from an early age.
2(e) What special difficulties face Indigenous people with criminal
records?
Indigenous Australians with criminal records face special difficulties
in gaining and holding employment. VALS welcomes the acknowledgement
at page 8 of the Discussion Paper that the over-representation of Indigenous
Australians in the criminal justice system contributes to an over-representation
of Indigenous Australians in unemployment figures. Indigenous Australians
in Victoria are twelve times more likely to come into contact with the
criminal justice system. The unemployment rates in the cities of Darebin
and Yarra (North) at the time of the 2001 census was 17% of Indigenous
Australian people and 8.7% of non-Indigenous Australian people.[1]
VALS welcomes the acknowledgment at page 7 of the Discussion Paper
that many people with a criminal record also experience other social
and economic disadvantages. Indigenous Australians experience extreme
disadvantage and it is common for Indigenous Australians to experience
layers of discrimination. Often discrimination on the basis of criminal
record is accompanied by discrimination on the basis of race or social
status. Many Indigenous Australians experience poverty and such poverty
is criminalized, such as having failure to pay a fine recorded on their
criminal record.
A problem that arises specifically in the Indigenous Australian community
in relation to discrimination on the basis of criminal record is the
Indigenous Australian community is denied benefits that a reformed person
can provide. Indigenous Australians who have criminal records, but are
reformed, face difficulty in working or volunteering in the criminal
justice field. For instance, the requirement of a criminal record check
acts as a barrier for reformed Indigenous Australians wishing to volunteer
as Official Aboriginal Prison Visitors. It is beneficial to Indigenous
Australians in prison that they are visited by other reformed Indigenous
Australians that they can identify with because they share an understanding
of culture and difficulties in finding the right path in life. However,
the criminal record check acts as a distinct barrier to Indigenous Australians
becoming volunteers as they are reluctant to undergo a check.
VALS Civil Law Solicitor is aware of the following examples of alleged
discrimination in employment on the basis of criminal record towards
Indigenous Australians:
- A client applying for a position with an Aboriginal organisation
was refused a job because of a conviction for a driving offence (he
was to be a driver of a small bus-this position required an Comprehensive
Car Insurance Policy).
- A client who had a position as an Indigenous Prison Liaison Officer
was sacked because of a criminal record relating back to his early
childhood (he didn't disclose the minor theft conviction).
- A client was a Primary Teacher who was requested to resign because
a criminal record check resulted in disclosure of a breach of a Stalking
Order.
- A client applying for a position with a Government Department was
refused an offer of employment because a criminal record disclosed
a conviction for being drunk many years ago.
2(g) What strategies might address ongoing stereotyping of people with
criminal records in the work place?
A possible strategy to address ongoing stereotyping of people with
criminal records in the work place is to harness the influential power
of the media over public opinion. Currently the manner in which law and
order issues are represented in the media is encouraging discrimination
against people with a criminal record and attitudinal change is required.
The press often represents an unbalanced perspective on the rights of
employers and people with criminal records seeking employment, which
is often to the detriment of the latter, which leads to the public being
misinformed. The press often represent the stance that a ‘tough
on crime’ and punitive approach is most appropriate. The press
fails to represent the opinion of people with criminal records such as
the following:
- It inappropriate to treat people with a criminal record as second
class citizens or deny them the chance to prove they have reformed.
- Discrimination in employment on the basis of criminal record is
informally punishing people for something that they have already been
formally punished for (ie: imprisonment). Such duplication of punishment
is unfair as it means people with a criminal record are given a ‘life
sentence’.
- A tough on crime approach directed at people with criminal records
places barriers in their way to contributing to society effectively
and is not a smart on crime approach. For instance, a person who is
unable to find employment may fall back into a cycle of crime out of
lack of options or a sense of hopelessness.
- A smart of crime approach
is to rehabilitate offenders rather than continually punish them.
The press should represent the above mentioned opinions of people
with criminal records in the interests of objectivity. The result of
this could be that:
- Australians are no longer ignorant about issues affecting Australians
with a criminal record but are attuned to them.
- Attitudinal change can occur and such attitudinal change is required
if current law or future reform of the law that protects people with
criminal records is to be effective.
- A more equitable balance is struck between the rights of employers
and people with criminal records seeking employment.
Also, the Department of Justice Sentencing Advisory Council should
play more of a role in achieving the above outcomes.
The Adequacy and Effectiveness of Anti-discrimination and Other Laws
to Protect Against Discrimination in Employment on the Basis of Criminal
Record
3(a) Are there currently sufficient legal protections against discrimination
in employment on the basis of criminal record?
There are insufficient legal protections against discrimination in
employment on the basis of criminal record at both State and Federal
levels. The Victorian Equal Opportunity Act 1995 fails to prohibit discrimination
on the basis of criminal record. The Human Rights and Equal Opportunity
Commission Act (Cth) 1986 (HREOC Act) does not provide sufficient protection
for alleged victims of discrimination on the basis of criminal record
when it is not possible to conciliate a dispute. If a dispute cannot
be conciliated the Human Rights and Equal Opportunity Commission (HREOC)
is limited in its action, and can be argued to be a toothless tiger (ie:
prepare a report with unenforceable recommendations to the Attorney-General
for tabling in Parliament). The Industrial Relations Act (Cth) 1988 may
help fill the gaps that have been identified for people who had jobs
and have been dismissed, but does not help people who have been denied
a job in the first place.
Measures which may be taken to Protect People against Discrimination
in Employment on the Basis of Criminal Record
3(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?
There needs to be additional protection against discrimination in employment
on the basis of criminal record and the form it should take and the elements
that should be included are as follows:
- All States/Territories should have laws that specifically prohibit
discrimination on the basis of criminal record, not just Tasmania and
the Northern Territory (ie: amend s6 of the Equal Opportunity Act 1995
Vic). Ideally, the laws should be uniform to prevent inconsistency
in the protection afforded to employees in different areas of Australia.
VALS notes that there will be an increased need for such legislation
in Victoria if the State Government’s proposed Working with Children
Check is implemented. The proposal is in Bill form and please refer
to VALS submission in response to the Working with Children Bill 2005
Discussion Paper - December 2004 (submitted March 2005) for further
information.
- If the proposed Working with Children Check goes ahead, the HREOC
should consider the need to educate employers, potential employees
and employees of their rights and responsibilities in relation to the
check.
- All States/Territories should have a spent conviction scheme (Victoria
currently does not have one) or a uniform spent conviction scheme should
be enacted to provide consistency throughout the country.
- It should become law that convictions for certain minor crimes should
not be permitted to prevent or be used to prevent a person obtaining
certain employment.
- In the case of crimes relating to traffic offences the records of
such offences kept by VicRoads and those recorded on a criminal record
should be made consistent. At the moment every three years a driver’s
slate is wiped clean by VicRoads (ie: demerit points are replaced).
However, a traffic offence remains on a criminal record for life. In
the interests of consistency the traffic offences should be wiped from
a criminal record after three years.
- The HREOC Act should be amended so that findings relating to discrimination
on the basis of criminal record are enforceable via legal proceedings.
There should not be a distinction between complaints of discrimination
based on sex, race or disability with criminal record. However, there
is a distinction which means the complainant can seek a legal remedy
for discrimination in the former category only.
- An employer or potential employer should not be entitled to access
a complete criminal record, but only receive part of the record that
is relevant to the inherent responsibilities of a position. There is
the danger that if a complete criminal record is provided that irrelevant
criminal matters will prejudice the interests of the employee/potential
employee. For instance, the employer will informally consider or be
influenced by extraneous material on the criminal record. VALS is aware
of such a situation arising in the Court system. Magistrates hearing
matters for people over eighteen are not permitted to consider convictions
in the Children’s Court. However, as convictions in the Children’s
Court are recorded on the criminal record and are available to Magistrates
in the Magistrates’ Court in reality such Magistrates are often
influenced by them in making a determination.
- On a practical level a criminal record consent form could specifically
list categories of offences (ie: traffic, sexual, violent and dishonest
offences etc). The person filling out the consent form will chose from
the targeted categories listed, whilst taking into account the inherent
responsibilities of the position. Also, by way of safeguard the consent
form could include a description of the position that the criminal
record is sought in regards to.
- An employee or potential employee should
have the right to be given a copy of the criminal record that the
employer or potential employer receives from the police. This will
enable the potential employee or employee to check the accuracy of
the record as it is possible for criminal records to be incorrect.
Also, if a potential employee or employee has a copy of the criminal
record they will be able to speak to it. Employers who are considering
sacking or not employing someone on the basis of a criminal record
should give them an opportunity to give a written or oral submission.
Employers should not sack or refuse to employ a person as a knee-jerk
reaction without giving the employee or potential employee a chance
to state their case or provide other relevant information (ie: conviction
recorded many years ago and since reformed).
- An employer or potential employer should obtain a police record
check within a reasonable amount of time, and if they fail to do this
they waive their right to check a criminal record. For instance, a
criminal record check should be completed within the common three month
probation period. It is unfair to sack a person after six months of
employment once a criminal record comes to light if they have proven
reliable as an employee during that time.
- Employees should not have to disclose pending charges as this could
prejudice their chances of employment or continued employment when
the matter has not been tested in a Court of law.
Resource Pack: The Rights and Responsibilities of Employers and Employees
in Relation to Employment and Criminal Records
VALS acknowledges the value of a Resource Pack that addresses the rights
and responsibilities of employers and employees as an outcome of this
inquiry into discrimination in employment on the basis of criminal record.
However, VALS is concerned to stress that the outcome of this inquiry
should go beyond simply a resource pack, but also result in the reform
of the law as outlined in the above section.
The Resource Pack should contain information such as follows:
- Guidance for employers on how to determine the relevance of conviction:
(ie: age of offender, length of time since the conviction, rates of
recidivism for particular offences).
- Guidance for an employee as to what exactly a criminal record is.
For instance, some people are unaware that traffic offences are included
on their record.
Conclusion
Discrimination in employment and volunteering activities on the basis
of criminal record impacts Indigenous Australians in a specific manner.
For instance, the over-representation of Indigenous Australians within
the criminal justice system correlates to the under-representation of
Indigenous Australians in employed positions. Victorian Indigenous Australians
do not receive sufficient protection from the legal system at a State
or Federal level and reform is required. The perspective of people with
criminal records should be more adequately portrayed in the media in
an attempt to address bias against such people. The provision of a resource
pack for employers and employees is only one step towards addressing
discrimination on the basis of criminal record.
Thank you for the opportunity to comment on the ‘Discrimination
in Employment on The Basis of Criminal Record Discussion Paper’ (December
2004). If you have any queries please contact Greta Jubb (Research Officer).
With Compliments:
Victorian Aboriginal Legal Service Co-operative Limited
Bibliography:
Aboriginal and Torres Strait Islander Commission, ‘Tumbukka Regional
Plan 20042006’(2004)
1. Aboriginal and Torres Strait Islander Commission, ‘Tumbukka
Regional Plan 2004-2006’(2004) p.51 |