DISCRIMINATION IN EMPLOYMENT ON THE
BASIS OF CRIMINAL
RECORD
Click here to access:
Submission No.
76 - Law Institute of Victoria
Workplace Relations and Criminal Law Section
Queries regarding this submission should be directed to:
Elizabeth Hayes
(03) 9607 9389
Email: ehayes@liv.asn.au
or
Pradeepa Jayawardena
(03) 9607 9374
Email: pjayawardena@liv.asn.au
1. Introduction
The Human Rights and Equal Opportunity Commission (HREOC) has published
a Discussion Paper in relation to discrimination in employment on the
basis of criminal record. The goals of the discussion paper were to:
- Identify the law and policy in the area of discrimination on the
basis of criminal record;
- Ascertain some of the practical difficulties
faced by both employers and employees when a person with a criminal
record seeks to participate in the workforce; and
- Seek the views and
ideas of all stakeholders as to what needs to be done to eliminate
instances of discrimination.
The Law Institute of Victoria (LIV) welcomes the opportunity to comment
on the Discussion Paper. The LIV will focus its comments primarily on
the practical difficulties faced by employers and employees and issues
for the community in general.
2. Executive Summary
The
LIV submits that:
- The position for employers and employees regarding the employment
of people with a criminal record needs to be clarified. The LIV supports
retaining the ability of employers to take criminal records into account
when it affects the 'inherent requirements' of a particular position.
However, there needs to be greater clarity about the definition of
'inherent requirements'.
- Potential employees/employees need to know when a criminal record
should be disclosed.
- Discrimination on the basis of a criminal record frustrates the
principles of the Sentencing Act in that if a person is
convicted of an indictable offence and suffers the punishment imposed,
the punishment has the effect of a pardon.
- The community benefits from the lawful employment of ex-offenders
so protection against discrimination should be provided to encourage
their employment.
- This community benefit has to be balanced with protection
of vulnerable members of the community such as children.
3. Practical problems faced by Employers and Employees
The current position is that an employer may 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 the particular job. An issue
requiring consideration is when and how a criminal record might prevent
an employee being able to fulfil the "inherent requirements" of
a particular position. The LIV supports maintaining the current position
but acknowledges the practical difficulties that employers face when
trying to apply the test in their workplaces.
Some occupations have their own regulations or guidelines about the
inherent requirements of the job, such as police officers or persons
working with children. However, outside those specific examples, there
is very little guidance for employers as to what constitutes a position's
inherent requirements. Courts and tribunals have been reluctant to provide
sufficient detail about what constitutes inherent requirements which
means employers are forced to rely on a set of vague principles (see
pages 18 - 19 of the Discussion Paper).
For example, in the legal profession if a person with a criminal record
is successful in obtaining a practising certificate, a prospective employer
may be concerned that a person who is convicted of theft cannot fulfil
the inherent requirements of a position that involves handling trust
monies. It would be difficult for an employer to determine whether or
not the conviction would prevent the person from carrying out the inherent
requirements of a legal position despite their having obtained a practising
certificate.
4. Discrimination based criminal record complaints under HREOC
Regulations
A further issue is the outcome of complaints about discrimination on
the basis of a criminal record. "Criminal record" is included
in the definition of discrimination under section 4 of the HREOC
Regulations. However, a complainant's remedy where
a matter can not be conciliated is limited to HREOC preparing a
report with recommendations for the Attorney General to table in Federal
Parliament. The employer can ignore these recommendations, as they are
not legally enforceable. The value of being able to bring a complaint
in these circumstances is therefore questionable.
This situation is different from complaints relating to discrimination
on the grounds of sex, race or disability where if the matter is not
conciliatable then an applicant can issue proceedings in the Federal
Court or Federal Magistrates Court.
5. Definition of criminal conviction
A further issue is what is to be included in the definition of criminal
conviction for the purposes of the anti-discrimination legislation.
Many of the "spent conviction" jurisdictions in Australia
exclude crimes such as sexual offences. Many States have made specific
provisions in relation to certain offences and prospective positions
in the community, for example, sex offenders and working with children.
The policy is that discriminatory practices should only be permitted
in limited circumstances where it is necessary to protect vulnerable
members of our community. The LIV agrees with that policy.
The LIV acknowledges the research referred to in the Discussion Paper
that people with certain attributes are over-represented in the criminal
justice system such as young men or indigenous Australians. This contributes
to the greater levels of unemployment in these groups.
6. Community issues
When reviewing the issue of the employment of ex-offenders, it is necessary
to consider certain competing interests. Society benefits when ex-offenders
obtain lawful employment, however vulnerable members of the community
must also be protected from potential harm.
The LIV made submissions recommending the introduction of "spent
conviction" legislation to the Victorian Government in 2000 and
again in 2004. The issue is still under consideration by the Victorian
Government Without "spent conviction" legislation in Victoria,
there is significant uncertainty on the part of employers as to whether
a criminal record is a relevant factor in the selection of employees.
On the other hand, employees are unsure whether or not a criminal record
should be disclosed to prospective employers.
Discrimination based on a person's prior criminal history tends to
frustrate sentencing laws. According to section 88 of the
Sentencing Act 1991(Vic), if a person is convicted of an indictable
offence and suffers the punishment imposed, the punishment has the effect
of a pardon. Discrimination beyond the end of the sentence leaves further
punishment at large and unsupervised.
Without anti-discrimination provisions, the community has no guidance
as to how it may deal with an ex-offender's past. Some offences will
be relevant to prospective employment. But to an untrained or unsympathetic
eye, any criminal offences may be interpreted as a good reason
not to employ someone. Many forms of criminal behaviour are unrelated
to whether a person would make a good employee.
The community benefits from the rehabilitation of offenders. Employment
and work necessarily involves a redirection of an ex-offender's energies
towards lawful ends. This will likely be of benefit to the ex-offender
by providing them with wages and social approval. The community will
benefit by the product of the work. Leaving ex-offenders unprotected
in relation to employment discrimination has consequent risks to the
community as a whole.
With the exclusion of the inherent requirements of a position, the
LIV supports the prohibition of discrimination in employment on the basis
of a criminal record. To discriminate on the basis of criminal record
in employment is to re-punish an offender when he has already been dealt
with according to the law. There are limited circumstances in which a
person's criminal record is relevant in determining suitability for an
employment position. These relate primarily to the need to protect vulnerable
members of the community such as children. |