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DISCRIMINATION IN EMPLOYMENT ON THE BASIS OF CRIMINAL RECORD

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Submission No. 71 - Equal Opportunity Commission, Victoria

Submission from: Dr Helen Szoke, Chief Conciliator/Chief Executive Officer

For further information contact: Mr Rory Jolley, Legal Officer. Tel: (03) 9281 7142.

Dr Sev Ozdowski OAM
Human Rights Commissioner
Human Rights and Equal Opportunity Commission
GPO Box 5218
SYDNEY NSW 2001

4 March 2005

Dear Dr Ozdowski

The Equal Opportunity Commission welcomes the Human Rights and Equal Opportunity Commission's inquiry into discrimination in employment on the basis of criminal record, and is pleased to have the opportunity to contribute to it.

If further information is requested, or anything contained within this submission needs to be clarified, please contact Mr Rory Jolley, Legal Officer. His direct telephone number is: (03) 9281 7142.

Yours sincerely

Dr Helen Szoke
Chief Conciliator/Chief Executive Officer

SUBMISSION IN RESPONSE TO THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION DISCUSSION PAPER: DISCRIMINATION IN EMPLOYMENT ON THE BASIS OF CRIMINAL RECORD

FEBRUARY/MARCH 2005

INTRODUCTION

The Equal Opportunity Commission of Victoria ("the Commission") welcomes the opportunity to comment upon the Discussion Paper produced by the Human Rights and Equal Opportunity Commission ("HREOC") examining the issue of discrimination in employment on the basis of criminal record.

1. The Commission considers there is a need to clarify and extend protection against this type of discrimination and, accordingly, would support any move in this direction. The Commission considers it desirable that appropriate protections at both State and federal level are implemented and/or enhanced.

2. With regard to this protection, the Commission considers it important that the assessment as to whether discrimination on the basis of criminal record has taken place occurs in an equivalent manner to that of other types of discrimination. Specifically, the Commission believes that an assessment of the inherent requirements of a position vis-a-vis potential discrimination should not differ whether the assessment revolves around alleged discrimination on the basis of impairment, for example, or discrimination on the basis of criminal record.

PROTECTION AGAINST DISCRIMINATION ON THE BASIS OF CRIMINAL RECORD AND PRINCIPLES OF EQUAL OPPORTUNITY

3. Presently in Victoria there is no protection against discrimination on the basis of criminal record, whether in the area of employment or within any other areas of public life. As stated above, when the Commission is contacted by a person who alleges that they have been discriminated against on this basis, the only recourse that might be offered to that person is a suggestion he or she contact HREOC and consider making a complaint under the Human Rights and Equal Opportunity Commission Act 1986 (Cth). Neither is there in Victoria a spent convictions scheme that creates a right to non-disclosure as in NSW, or that provides for convictions to lapse after a period of time, such as in WA. This creates a significant gap in the level of protection for Victorians with previous convictions.

4. It is generally recognised that the protection against discrimination on the basis of criminal record provided by the Human Rights and Equal Opportunity Commission Act is somewhat less than perfect. This is primarily because of the lack of any practical or effective enforcement provided by that legislation. A person may make a complaint of discrimination on the basis of criminal record, but the only remedy that can be obtained (in the absence of a successful conciliation) is for the breach of the legislation to be reported to the federal Attorney General who can table a report regarding the matter in the federal Parliament.

5. The Commission considers that there are strong arguments for appropriate protection against discrimination on the basis of criminal record to be enacted in all Australian jurisdictions. The foundation for the enactment of anti-discrimination legislation generally has been the concept that, in areas of life that could be described as public (as opposed to private), a person should not be subjected to detriment or treated unfairly on the basis of any particular inherent (and often unalterable) personal attributes that person possesses.

6. In the Second Reading speech for the Bill that became the Equal Opportunity Act 1995 (Vic), the Attorney General stated:

The concept of equal opportunity is concerned with ensuring that all people have equal access to specified public benefits and resources, such as employment, accommodation and access to goods and services.

This bill seeks to promote the recognition and acceptance of everyone's right to equality of opportunity by prohibiting a decision maker from considering a person's irrelevant characteristics, such as their sex or age, when deciding whether to grant that person access to a particular benefit or resource.

7. The Commission considers that a person's criminal record, as a potential attribute, possesses much the same character as other attributes currently protected by the Equal Opportunity Act. A criminal record is something that, for the most part, a person is unable to change, and may well be completely irrelevant to the ability of a person to appropriately and effectively carry out employment. Accordingly, the Commission can see no reason why a person's criminal record should not be protected in a manner similar to other protected attributes.

8. Moreover, Australia is a signatory to various international conventions, including the International Covenant on Civil and Political Rights ("ICCPR") and the International Covenant on Economic, Social and Cultural Rights ("ICESCR"). Article 26 of the ICCPR states that:

All persons are equal before the law and are entitled without discrimination to the equal protection of the law. In this respect, the law shall prohibit and discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status [emphasis added].

Article 2(1) of the ICCPR provides:

The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status [emphasis added].

9. Accordingly, the Commission considers that the enactment of appropriate protection against discrimination on the basis of criminal record (in employment and more generally), incorporating enforceable remedies available such as those that may be obtained in relation to discrimination on the basis of other protected characteristics, is essential. Furthermore, the Commission considers that this is a step that needs be taken in order to properly fulfil Australia's obligations under ratified international law to ensure that equality and freedom from all kinds of discrimination is entrenched in domestic legislation.

THE COMMISSION'S EXPERIENCE WITH CRIMINAL RECORD DISCRIMINATION IN VICTORIA

10. Leaving aside principled considerations, the Commission's own experience has been that there is, in a real sense, a pressing need for a greater recognition of this type of discrimination. Whilst the Commission does not specifically keep statistics on the amount of enquiries received regarding discrimination on the basis of irrelevant criminal record (because it is not unlawful in Victoria), nevertheless it receives, and continues to receive, a substantial number of enquiries in relation to this each year. In the 2003/04 financial year, for example, the Commission received at least 35 enquiries where the subject of discrimination on the basis of criminal record was raised.

Examples of enquiries to the Commission

1) John worked for a transport company on a casual basis for 12 months. Because of his good work with the company, and because of his good employment history, at the expiration of his 12 months casual work, John was offered a permanent position. Following this offer, a criminal record check was undertaken which revealed a criminal record going back 20 years. The offer of employment was subsequently rescinded.

2) Janice called the Commission to discuss the circumstances her son, Paul, found himself in. Paul was in remand and, as a result, his insurance company refused to renew his house insurance. This left Paul exposed to an extreme potential liability were anything to happen to his house whilst he was incarcerated and, indeed, subsequently.

* Please note, all identifying details have been changed

ISSUES INVOLVED IN PROTECTION AGAINST DISCRIMINATION ON THE BASIS OF CRIMINAL RECORD IN EMPLOYMENT

11. The HREOC discussion paper states:

To avoid discrimination on the basis of a criminal record, an employer can only refuse to employ a person if the person's criminal record means that he or she is unable to perform the inherent requirements of a particular job . However, there can be difficulties in determining what the inherent requirements of a particular job are, and whether a person's particular criminal record will necessarily disqualify him or her from satisfying those requirements.

12. The Commission accepts that there are particular types of employment that, because of the nature of the employment, mean that people with certain criminal records should not be employed. It may be inappropriate, for example, for a person with convictions for fraud or theft to be employed in a position where they have access to or control over others' money.

13. However, the Commission considers it important that protection against discrimination in employment on the basis of criminal record is assessed on a level equivalent to other forms of unlawful discrimination. Specifically, with regard to any assessment of the inherent requirements of a position, the Commission considers that the test vis-a-vis discrimination on the basis of criminal record should not necessarily be broader or more onerous than that for other forms of unlawful discrimination.

14. The Commission considers that, whilst it is true that there can be difficulties in determining what the inherent requirements of a particular job are, and whether a person's particular criminal record will necessarily disqualify him or her from satisfying those requirements, these difficulties apply equally to any assessment of the inherent requirements of a position in relation to any other form of unlawful discrimination. The Commission considers the task of assessing the inherent requirements of some positions vis-a-vis potential discrimination on the basis of impairment, for example, can be just as complex.

15. The HREOC discussion paper goes on to state:

. it is important to keep in mind that no matter what the inherent requirements of a position are, and no matter what a person's criminal record, each person's ability to fulfil those requirements should be assessed on a case-by-case basis to avoid discrimination.

16. The Commission supports this position, and supports the principles extracted from the case law contained within the HREOC discussion paper, namely:

an inherent requirement is something that is "essential" to the position rather than incidental, peripheral or accidental;
the burden is on the employer to identify the inherent requirements of the particular position and consider their application to the specific employee before the inherent requirements exception may be invoked;
the inherent requirements should be determined by reference to the specific job that the employee is being asked to do and the surrounding context of the position, including the nature of the business and the manner in which the business is conducted;
the inherent requirements exception should be interpreted strictly so as not to defeat the purpose of protection against discrimination.

Particularly, the Commission considers it to be important that there is a tight correlation between the inherent requirements of the particular job and an individual's criminal record, and that there is more than merely a logical link between the job and a criminal record.

CONCLUSION

17. The Commission considers that it is important that appropriate protection against discrimination is enacted within Australian jurisdictions. Whilst there are very real concerns about whether people with particular criminal records should carry out certain types of employment, the Commission considers that an assessment of the inherent requirements of such employment should not necessarily differ whether the alleged discrimination revolves around irrelevant criminal record or around other attributes. The Commission would caution against a "broad brush" approach to this assessment, and considers it important that each circumstance is assessed on its individual merits.