DISCRIMINATION IN EMPLOYMENT ON THE |
|||
To: Stephen Duffield |
Friday, March 4, 2005 Telephone (07) 4721 5511 |
|---|
Dear Director,
We refer to the Commission's current discussion paper and now provide submissions for the Commission's consideration.
Townsville Community Legal Service (TCLS) is an independent community-based legal service made up of staff, volunteer lawyers, social welfare workers, students and interested members of the community.
The service is funded by grants from the Commonwealth Government, the Queensland Government, community bodies and by private donation.
TCLS is a non-profit organisation dedicated to providing free legal and financial counselling services to the Townsville, Thuringowa and surrounding communities. TCLS also provides client referrals and community education and is involved in law reform and social change work.
The TCLS objectives are to provide a free and accessible legal service, to seek legal and social change, to address inequalities in law and society, to promote legal education and to create an area in which the social welfare aspects of client's lives are recognised.
TCLS has undertaken work in the area of discrimination on the ground of criminal record, including:
Discrimination on the ground of criminal record is commonly encountered by TCLS, particularly given the proximity of correctional facilities to the service. Townsville Correctional Centre and Lotus Glen Correctional Centre are both located in North and Far North Queensland and accordingly, many of people released from either facility seek employment opportunities within the regional cities of Cairns and Townsville.
Additionally, post release, people often seek employment opportunities within local agricultural districts such as Ayr, Home Hill, Bowen and Proserpine (to the south of Townsville) and Ingham, Cardwell, Mission Beach, Tully (to the north of Townsville).
Recently TCLS has advised clients about discrimination in matters that do not fit neatly within existing legislation. These cases highlight significant gaps.
Firstly, the question of whether a finding of "no conviction recorded" came within the definition of criminal record. TCLS considers that the very purpose of such findings is defeated by a lack of enforceable rights against those who would discriminate on that basis.
Secondly, our client and immediate family members were charged with serious criminal offences. Charges against our client were later dismissed at committal but despite this, he continued to suffer discrimination within his local community as if he had been convicted of the offences. TCLS considers that a fundamental tenet of the legal system, namely the presumption of innocence, is weakened by a failure to guard against discrimination in these cases.
As a result of these two examples, TCLS recommends a broadening of the definition of 'criminal record'.
TCLS recognises that the issue of discrimination in employment on the basis of criminal record requires the balancing of four competing interests:
TCLS considers that most at risk of discrimination are those who have served a custodial sentence. An estimated 44,000 prisoners are released from prison each year in Australia.[1]
Additionally, according to a 1999 study carried out by the National Prisoner Census concerning the Queensland prison system, 61% of prisoners had served previous prison sentences. [2] This means that almost 27,000 of those prisoners had been in prison more than once.
TCLS considers that one of the reasons for this recidivism is that people often face discrimination post release from prison. This discrimination manifests in difficulties obtaining employment, accommodation and causes a general inability to make a life outside of prison.[3] In the worst cases this discrimination leads to homelessness and some re-offend in order to survive.[4]
TCLS considers that on balance the rights of people with a criminal record (and the need to remove barriers such as discrimination) outweigh the rights of employers to know a potential employee's criminal past. TCLS concedes that there are situations such as sex offences where the safety of others means that the rights of employers should prevail.
Australia has ratified several major international human rights treaties including the International Covenant on Civil and Political Rights ('the ICCPR') and the Discrimination (Employment and Occupation) Convention 1958 ('the ILO convention'). By doing so, the Australian government has taken on an obligation to ensure that everyone in it's territory enjoys the rights and freedoms that are set out in each of those treaties.
Both the ICCPR and the ILO Convention are scheduled to the Human Rights and Equal Opportunity Commission Act 1986 (Cth) and provide a substantial basis for that legislation.
TCLS considers that these treaties protect fundamental human rights that should not be ignored by the Australian government.
Further, TCLS contends that ratification by Australia and entrenchment in legislation is currently inadequate and should be accurately reflected and expanded in Commonwealth and State legislation.
TCLS does not believe that the current Human Rights and Equal Opportunity Commission Act 1986 (Cth) provides adequate protection for people with a criminal record in employment and in other areas normally protected by discrimination laws.
Article 26 of the ICCPR states that '.the law shall prohibit any discrimination and guarantee all persons equal and effective protection against discrimination on any ground'. The United Nations Human Rights Committee (established under the ICCPR) has defined discrimination as
[A]ny distinction, exclusion, restriction or preference.which had the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, by all persons, on an equal footing, of all rights and freedoms.[5]
Article 2(1) of the ICCPR states:
Each State Party .undertakes to respect and to ensure to all individuals within its territory.the rights recognized in the present covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Article 2(2) and 2(3) require that legislation 'give effect to the rights recognized in the present Covenant' and that legislation providing for equal opportunity must be enforceable by 'such legislative or other measures as may be necessary to give effect to the rights.' and that 'any person whose rights or freedoms as herein recognized are violated shall have an effective remedy.'
Discrimination in this convention is defined pursuant to Article 1(b) to include '[a] distinction, exclusion or preference which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation.'
Article 3(b) states that 'Each member for which this convention is in force undertakes, by methods appropriate to national conditions and practise - to enact such legislation.as may be calculated to secure the acceptance and observance of the policy.'
We consider that the above excerpts from the ICCPR and the ILO Convention provide the foundation on which a more expansive protection against discrimination on the basis of criminal record can be legislated.
As these treaties are the basis for protections against discrimination in employment on the basis of criminal record a number of obligations fall on the Australian government to ensure that the protections are not simply rhetorical.
These obligations should be addressed in three ways:
Arguably spent convictions legislation protects the rights of persons with a criminal record to have their claims (whether in pre-employment situations or other situations) considered without any reference to such convictions after the expiration of a statutory period of time.
These schemes do not provide remedies for those who have suffered discrimination. They represent affirmative action measures that are often uncertain in scope and application and fail to actually prevent discrimination.
That is not to say that such measures should be repealed but should be seen for what they actually achieve through their limited application.
At present the only federal legislation that provides protection against discrimination on the basis of criminal record in Queensland is the Human Rights and Equal Opportunity Commission Act (Cth) and the Human Rights and Equal Opportunity Commission Regulations (Cth).
This is unlike other forms of discrimination (sex, age, race and disability) that are subject of specific statutes which all specifically address discrimination in employment and related areas.
State regulation differs from jurisdiction to jurisdiction, but this paper focuses on Queensland. Currently, Queensland does not have any legislation that actively prohibits discrimination on the basis of criminal record. This includes the Anti-Discrimination Act 1991 (Qld).
Queensland has enacted the Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld) which states that a person need not disclose a criminal history after the 'rehabilitation period' (ten years) has passed. The limits of this legislation are well recognised.
By comparison, in the Australian Capital Territory the Discrimination Act 1991 (ACT) includes 'spent conviction' as a ground on which it is unlawful to discriminate. Likewise, Western Australia has enacted the Spent Convictions Act 1998 (WA) that provides that it is unlawful for an employer to discriminate on the grounds of a spent conviction when determining who should be offered employment.
Although these spent conviction schemes provide supplementary protection for people with a criminal record against discrimination that protection is limited to certain offences and where the specified crime-free periods have elapsed.
We consider that there are a number of shortcomings with the current federal system
The current Federal legislation is complex, given the limited scope afforded by it. For example it requires reference to both the HREOC Act and the Regulations. TCLS considers this makes the legislation difficult to understand and difficult to access. For example, when compared with the newly enacted Age Discrimination Act, the HREOC scheme is scattered and difficult to follow.
Although the Courts have adopted a process of liberally interpreting discriminatory practices (see Australian Iron and Steel Pty Ltd v Banovic), it should not be left to the Courts to effectively regulate the particular area of pre-employment practices.[6] Rather, the legislation should specifically include the recruitment process as forming part of the definition of 'employment'. Currently, the breadth of the protections is subject to beneficial construction by the Courts, when it could well be spelled out in the legislation in a non-exhaustive but more liberal manner.
Confusion surrounds the 'inherent requirements of the job' exemption. Many employers assert that a particular requirement is inherent to the job at hand without that requirement being evidenced in the duty statement or work classification standards or other documentation setting out the job specifications. In this way, employers often treat persons with criminal records differently from other persons who present for a pre-employment interview. Such conduct will be discriminatory and therefore unlawful if there is no relationship between the person's criminal record and the documented inherent requirements of the job. However, most people are unaware of their respective rights and obligations in this context. Additionally, the breadth of what is meant by employment is debateable and this causes further layers of confusion.
There are few jobs in which the absence of a criminal record will be an inherent requirement. For example, it is arguable that people who work with children be free from convictions for child sex offences - a commonly touted hypothetical example. In fact, and in law, there are occasions where such a scenario is acceptable. For example see the somewhat controversial decision in Commissioner for Children and Young People and Child Guardian v Maher & Anor.[7] Or by another example where a person may not be admitted as a legal practitioner if they have a conviction that is a prescribed suitability matter under the Legal Profession Act 2004 (Qld).
The current definition of 'criminal record' does not include either non-recorded convictions or imputed or assumed criminal conduct. These are only examples of the other relevant matters that should be included by an effective definition.
We noted earlier that there would be strong policy reasons for protecting the rights of those with non-recorded convictions. For example, section 12 of the Penalties and Sentences Act 1992 (Qld) sets out a Court's discretion to not record a conviction. It would be ironic if such cases were not protected after the discretion was exercised.
TCLS makes the following recommendations:
In concluding, TCLS considers that at both federal and state level, criminal record in its broadest sense should be a ground for unlawful discrimination in all areas not just employment.
In order to truly remove barriers to those with a criminal record, enforceable remedies must be available across areas such as goods and services, insurance, accommodation etc.
Please do not hesitate to contact us for further details.
Yours faithfully
Townsville Community Legal Service Inc.
1.Baldry, Dr E et al Ex-prisoners and homelessness, presentation paper for the Australian Federation of Homelessness Organisations National Homelessness Conference 6-8 April 2003.
2. Government statistician's Office Queensland Crime Statistics Bulletin ISSN 1440-3293,Prisoners in Queensland April 1999.
3. Conway J Issues Paper: Housing Needs of Prisoner and Their Families in Queensland, Brisbane, Dept of Housing in Baldry Dr E et al Ibid p 6.
4. Baldry, Dr E et al Ibid p 11
5. Human Rights Committee, General Comment 18, UN Doc HRI/GEN/Rev.5 (2001) 136
6. Australian Iron and Steel Pty Ltd v Banovic (1989) 168 CLR 165, 185
7. Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492
|
© Human Rights
and Equal Opportunity Commission. Last
updated 20 April 2005. |