DISCRIMINATION IN EMPLOYMENT ON THE
BASIS OF CRIMINAL RECORD

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Submission No. 80 - Public Interest Advocacy Centre

Robin Banks
Chief Executive Officer

Anne Mainsbridge
Solicitor

Emma Golledge
HPLS Co-ordinator

Ellena Galtos
HPLS Policy Officer

Sarah Winter
Paralegal

1. INTRODUCTION

1.1 ABOUT THE PUBLIC INTEREST ADVOCACY CENTRE

1.2 PIAC' S EXPERIENCE IN DISCRIMINATION LAW

1.3 PIAC' S EXPERIENCE OF EMPLOYMENT DISCRIMINATION ON THE BASIS OF CRIMINAL RECORD

The Indigenous Justice Project
The Homeless Persons' Legal Service

1.4 PIAC' S METHODOLOGY

3. PERSONAL EXPERIENCES OF DISCRIMINATION IN EMPLOYMENT BECAUSE OF CRIMINAL RECORD

4. IMPACT OF A CRIMINAL RECORD ON EMPLOYMENT PROSPECTS

4.1 PRACTICAL DIFFICULTIES FOR PEOPLE WITH CRIMINAL RECORDS

4.2 HOW THE DIFFICULTIES ARE ADDRESSED BY THE INDIVIDUALS

4.3 PARTICULAR DIFFICULTIES FACED BY INDIGENOUS PEOPLE

4.4 RELATIONSHIP BETWEEN HOMELESSNESS AND EMPLOYMENT DISCRIMINATION ON THE BASIS OF A CRIMINAL RECORD

4.5 EMPLOYER RELUCTANCE TO EMPLOY INDIVIDUALS WITH CRIMINAL RECORDS

4.6 STRATEGIES TO ADDRESS STEREOTYPING OF PEOPLE WITH CRIMINAL RECORDS

5. LEGAL FRAMEWORK

5.1 LEGAL LIMITS ON CRIMINAL RECORDS CHECKS

5.2 THE PURPOSE OF ANTI - DISCRIMINATION LAWS

5.3 EXISTING PROHIBITIONS ON EMPLOYMENT DISCRIMINATION ON THE GROUND OF CRIMINAL RECORD

5.4 IMPROVING PROTECTION AGAINST DISCRIMINATION

5.5 WHAT DOES ' CRIMINAL RECORD ' ENCOMPASS ?

5.6 WHEN MIGHT A CRIMINAL RECORD BE RELEVANT TO EMPLOYMENT?

5.7 DIFFICULTIES IN USING ANTI - DISCRIMINATION LEGISLATION

1. Introduction

1.1 About the Public Interest Advocacy Centre

The Public Interest Advocacy Centre (PIAC) is an independent, non-profit legal and policy centre located in Sydney. PIAC provides legal advice and representation, public policy programs and advocacy training to promote the rights of disadvantaged and marginalised people and to enhance accountability, fairness and transparency in government decision-making.

PIAC specialises in undertaking matters that have systemic impact. Its clients and constituencies are primarily those with least access to economic, social and legal resources and opportunities. PIAC provides its services for free or at minimal cost.

Wherever possible, PIAC works co-operatively with other public interest groups, community and consumer organisations, Community Legal Centres, private law firms, professional associations, academics, experts, industry and unions to achieve its goals. PIAC works on public interest issues at a NSW, national and international level.

PIAC was established in July 1982 as an initiative of the (then) Law Foundation of New South Wales, with the support of the NSW Legal Aid Commission. Financial support for PIAC comes primarily from the NSW Public Purpose Fund and the Commonwealth State Community Legal Centre Funding Program. PIAC generates approximately forty per cent of its income from project and case grants, seminars, consultancy fees, donations and recovery of costs in legal actions.

1.2 PIAC's experience in discrimination law

PIAC has advised and acted for clients in numerous actions under the Disability Discrimination Act 1992 (DDA), the Sex Discrimination Act 1984 (SDA), and the Race Discrimination Act 1975 (RDA). In addition, PIAC has provided advice and representation to clients who have alleged breaches of state anti-discrimination laws. Significant recent cases in which PIAC has achieved positive outcomes for complainants under discrimination laws include Hills Grammar School v Human Rights & Equal Opportunity Commission^[1] and Maguire v Sydney Organising Committee of the Olympic Games (SOCOG).^[2]

PIAC has made submissions on proposed changes to the Human Rights and Equal Opportunity Commission Act 1986 (HREOCA), the SDA and the DDA. In addition, PIAC has appeared as amicus curiae in cases raising discrimination and human rights considerations including, for example, HREOC v Mount Isa Mines.^[3]

PIAC has also undertaken policy projects evaluating the law and practice of complaint handling by the Human Rights and Equal Opportunity Commission (HREOC), including examining the experiences of Indigenous women of discrimination and their access to complaint mechanisms.

1.3 PIAC's experience of employment discrimination on the basis of criminal record

People who have alleged that they were discriminated against because of their criminal record have from time to time, approached PIAC. In most of these cases, the alleged discrimination took place in the context of employment or of securing of a licence as a pre-condition to employment. However, it is important to note that a number of people seeking PIAC's assistance have alleged that having a criminal record has resulted in them being denied insurance, experiencing breaches of their privacy and, in some cases, being subjected to police harassment.

PIAC believes that rehabilitation of people who have been convicted of criminal offences is in the public interest and should be encouraged through appropriate human rights legislation.

Discrimination on the ground of criminal record tends to impact most adversely on groups within society that are already socially and economically disadvantaged. Particularly at risk are Indigenous Australians and people who are homeless or at risk of homelessness. PIAC is well placed to comment on the impact of this form of discrimination on Indigenous and homeless populations through its Indigenous Justice Project and Homeless Persons' Legal Service. These projects are outlined below.

The Indigenous Justice Project

The Indigenous Justice Project was initiated by PIAC in 2001, with the financial support of Public Interest Law Clearing House (PILCH) member firm, Allens Arthur Robinson. The aims of the project are to:

strengthen PIAC’s links with Aboriginal organisations;
identify public interest issues that impact on Aboriginal people and communities; and
conduct litigation, policy work and training on behalf of and for Aboriginal clients.

The Indigenous Justice Project seeks to address the needs and concerns of Indigenous Australians through a mix of legal advice, casework, policy interventions and community education.

In November 2001, PIAC employed Shahzad Rind as PIAC's Indigenous Solicitor. As a result of the Indigenous Justice Project, PIAC has represented a large number of Indigenous clients, particularly in the areas of discrimination and civil liberties. Mr Rind has visited many organisations that represent Indigenous communities and people throughout NSW to discuss the needs of their communities and the nature of the services offered by the Indigenous Justice Project, PIAC and PILCH. A range of policy initiatives have also been undertaken, including a pilot policy project that has been developed in collaboration with PIAC's Utility Consumers' Advocacy Program on access to water supply by Indigenous people and communities in rural and remote areas of NSW.

The Homeless Persons' Legal Service

In 2003, following an extensive consultation process, PIAC and PILCH established the Homeless Persons' Legal Service (HPLS). HPLS is currently operating with the support of funding from the Commonwealth Department of Family and Community Services under the National Homeless Strategy and the Public Purpose Fund administered by the New South Wales Attorney General's Department.

HPLS provides free legal advice and ongoing representation to people who are homeless or at risk of homelessness. It operates five clinics, on a roster basis, at five welfare agencies in the inner city of Sydney and Parramatta that provide direct services, such as food and accommodation, to people in housing crisis. The clinics are staffed by lawyers from law firms that are members of PILCH and co-ordinated by HPLS. Since the launch of HPLS in May 2004 it has provided advice to over 250 clients.

1.4 PIAC's methodology

PIAC welcomes the opportunity to respond to the HREOC Discussion Paper, Discrimination in employment on the basis of criminal record. In PIAC's view, the clarification of rights and responsibilities in this area is an important and overdue objective.

PIAC's response to the Discussion Paper addresses the following issues:

personal experiences of people with a criminal record regarding discrimination in employment on the basis of their criminal record;
the impact of a criminal record on employment prospects;
the adequacy of existing laws in this area;
what should a criminal record include;
privacy issues;
decision-making processes about actual and prospective employees on the basis of their criminal record.

In responding to the Discussion Paper, PIAC has focused on areas within its expertise and experience. Where possible, the submission addresses specific questions raised in the Discussion Paper in relation to the areas identified above.

In preparing this submission, PIAC has used its networks through HPLS and the Indigenous Justice Project to make contact with individuals who have criminal records and to consult with them about their experiences in accessing employment. In addition, PIAC has consulted with employment agencies and organisations that are involved (or have been involved) in assisting people with criminal records to find employment. PIAC has used this consultation process to inform its response to the above issues.

In keeping with the requirements of the Discussion Paper, PIAC's submission focuses on discrimination on the ground of criminal record in the area of employment. However, PIAC notes from its research and consultation work as well as from its general experience in responding to client enquiries in this area, that discrimination on the ground of criminal record crosses over into other areas of public life, including access to education, accommodation and provision of services. Although these areas are outside the scope of HREOC's current Inquiry, PIAC takes this opportunity to submit that the broader impact of discrimination on the ground of criminal record is a matter warranting future consideration by HREOC.

2. Summary of Recommendations

Recommendation 1

That the Human Rights and Equal Opportunity Commission develop and deliver a targeted education campaign for employers and employees to promote the acceptance of people with criminal records in the labour market and to increase understanding and awareness of the rights and obligations of employers.

Recommendation 2

That the Human Rights and Equal Opportunity Commission recommend that funding and resources be directed to providing trade-related education for prisoners while incarcerated to provide them with a trade qualification on their release.

Recommendation 3

That the Human Rights and Equal Opportunity Act 1986 (Cth) be amended to make discrimination on the ground of criminal record unlawful and to provide for complainants to have enforceable rights that may be pursued through the Federal Court or the Federal Magistrates Service.

Recommendation 4

That the Human Rights and Equal Opportunity Commission, through the Australian Council of Human Rights Authorities, initiate and lead a process for nationwide reform of federal, states and territory anti-discrimination and equal employment opportunity legislation to incorporate equivalent provisions in all jurisdictions on the unlawfulness of discrimination on the basis of criminal record and to promote equal employment opportunity for people with a criminal record.

Recommendation 5

That the term 'criminal record' in all federal, state and territory anti-discrimination legislation be defined as including 'but not limited to any record relating to investigation, arrest, interrogation, charge or criminal proceedings'.

Recommendation 6

That the legislation prohibiting discrimination on the basis of criminal record includes provisions:

prohibiting questions about criminal record unless the inquiry is relevant to an inherent requirement of an employment position;
making it clear that other workplace participants are prohibited from disclosing any information about a person's criminal record and that to do so is unlawful discrimination.

Recommendation 7

That the Human Rights and Equal Opportunity Commission initiate a process for nationwide reform of federal, states and territory spent conviction legislation to ensure that the laws are uniform and, for the purposes of determining what convictions cannot be 'spent', limit 'conviction' to actual time spent in correctional detention.

Recommendation 8

That the Human Rights and Equal Opportunity Commission develop and publish guidelines for employers and employees to clarify their rights and responsibilities in relation to employment and criminal record. In particular, these guidelines should clarify the following matters:

when is it legitimate for employers to require an applicant to consent to a pre ¬ employment criminal record check;
what constitutes an 'inherent requirement' in employment;
at what stage of a recruitment process 'inherent requirements' should be determined;
how the individual circumstances of a candidate's situation should be considered when determining whether or not they fulfill the 'inherent requirements';
when is a failure to disclose a criminal record relevant to the continuation of the employment relationship

3. Personal experiences of discrimination in employment because of criminal record

The following case studies are based on the results of interviews conducted by PIAC with individuals who have criminal records, or with agencies and organisations that have attempted to assist people with criminal records to access employment.

CASE STUDY 1

AB is a former heroin addict with a history of property and possession offences in NSW and Queensland.

After successfully undergoing rehabilitation for his addiction, AB-who is also a trained nurse-applied for a home-nursing position that involved caring for adults and children with various medical conditions and disabilities in their homes. At the job interview he thought that he would 'take a chance' and did not mention his past convictions. He wrongly believed that his convictions, which were over five-years-old at the time of the interview, would be regarded as spent convictions that did not have to be revealed to employers and did not disclose them at the interview. In fact, under the Criminal Records Act 1991 (NSW) adult convictions can only be regarded as 'spent' after a 10-year period has elapsed.

AB was appointed to the position. However, four months later his employer terminated his employment on the basis that his criminal record check had revealed convictions for property offences. Although AB accepts his employer may have had concerns about employing someone with theft convictions to work in clients' homes, he was never given an opportunity to discuss this with the employer. Ultimately, he decided to give up nursing as a career because he thought that it was 'pointless trying to pursue that'.

AB later applied for a job as a swimming teacher. Although his interview went well, AB's application was knocked back after a criminal record check.

After spending two months unemployed, AB worked as a cleaner for six months. There was no criminal record check undertaken for that job.

Eventually, AB successfully applied for a job as a welfare worker. At the interview, he told his employer about his criminal record. Now, three and a half years later, AB says his employer accepts 'recovering people working there' and trusts him to handle money as part of his job.

CASE STUDY 2

CD is a 39-year-old who works casually in unskilled jobs, but mainly relies on a Centrelink income. A former heroin addict who can only afford to live in a boarding house, CD has several convictions for theft and drug offences.

While on a methadone program more than a decade ago, CD sold an acquaintance some methadone. This person later died from a multiple drug overdose, including methadone and prescription medicines. CD was arrested on a manslaughter charge and spent five months in remand. Eventually CD was found not guilty of manslaughter, but did plead guilty to supply.

Despite the not guilty verdict, CD feels that each time he has gone to court since then-for minor theft and drug offences-the manslaughter charge is used against him. He believes the legal system 'is still holding the past' against him, and that this has influenced both penalties imposed in subsequent proceedings and his employment prospects.

CD worries about applying for jobs because employers may do a criminal record check. Now he only applies for jobs where he is sure the employer does not check criminal records. However, he notes 'that's just getting harder and harder'.

CASE STUDY 3

EF lives in regional Queensland. His work history includes seven years with a government agency and three years in the community sector in Queensland and NSW.

When his marriage broke up several years ago, EF was served with domestic violence orders and since then has been charged with breaches of these orders. He has also been found guilty of assault of his ex-spouse's new partner.

EF claims that he has missed out on jobs with local Job Network and community development agencies because of his criminal record. He claims that if he declares his criminal history, he does not get called back for a second interview even when he's been told that his application was 'absolutely spot on'. He commented that 'You just get fobbed off'.

EF also claims that because he lives in a regional Queensland area it is difficult to maintain privacy about his criminal record. He claims that voluntary management committees of family and community support agencies where he applies for jobs frequently seem to know about his assault convictions, presumably through local informal networks. He says, 'the Court-imposed sanction is not the end of it; it's like you're being double hit'.

Recently EF obtained a community support job in a remote area. The position involved driving long distances, using the employer's vehicle. The employer's insurer refused to provide comprehensive motor vehicle insurance on the basis of EF's criminal history. EF subsequently resigned from the position, on the basis that if he could not use the employer's car he could not perform the requirements of the job.

EF no longer works in his chosen field of community development work and now works for relatives in a hotel. He hopes to be able to study for a Masters of Social Science. He states, 'I probably will continue to always suffer discrimination, although I can't prove it'.

CASE STUDY 4

GH, an Indigenous client of an employment agency, applied for a job with a public sector employer and was advised that she had been successful in gaining the position. However, before she started in the job the employer contacted the agency and advised that they would have to delay employing GH until her pending court case was heard.

GH had not revealed the pending court case to the employer, and assumes that it was revealed on a police record check. The case relates to an alleged assault by GH, which she claims took place in the context of domestic violence towards her.

Because of delays in the hearing of the case, GH has not been able to work for several months.

4. Impact of a criminal record on employment Prospects

There seems little doubt that people with criminal records are significantly disadvantaged when attempting to access and to participate in employment. According to agencies and organisations consulted by PIAC in the preparation of this submission, finding employment tends to be one of the greatest difficulties that former offenders face upon release from prison. One worker at a Community Restorative Centre commented that many clients do not obtain employment post-release from prison, despite leaving prison fit and motivated to work.

There is clear evidence that stable and ongoing employment is of crucial significance in the rehabilitation process. Research demonstrates that people with criminal histories are four times less likely to offend if they are placed into employment.^[4] Employment provides financial stability and self-esteem, both of which enable the individual to cope with the pressures of living in the community again.^[5]

Unfortunately, the reality is that people with criminal records often face extreme difficulty when attempting to obtain and retain employment. There is evidence that the unemployment rate of ex-offenders is four times higher than that of the general population.^[6] To some extent this may be due to the generally disadvantaged position of this population and the fact that people with criminal records are generally less educated than other job seekers and may lack relevant work experience. However, discrimination against people with criminal records is also a major barrier to employment.

Negative societal attitudes towards ex-offenders mean that they are frequently denied an equal opportunity to compete against other candidates. Many ex-offenders are judged on the basis of presumptions associated with criminality, for example, that a person who has committed a crime is likely to re-offend, or is not to be trusted, rather than on the basis of their individual merits.

A central tenet of our criminal justice system is the principle that offenders who have been punished for crimes that they have committed have effectively 'paid their dues' to society and should not be subjected to further punishment in the form of discrimination, marginalisation and exclusion. According to one commentator, '[a]t no time does a judge or magistrate order that a person be condemned to a lifetime of unemployment or discrimination'.^[7]

However, the effect of discrimination on the ground of criminal record is that many ex-offenders continue to be punished for their crimes long after they have served their sentence or paid their penalty or fine.

Without stable employment, ex-offenders are less likely to be able to access other crucial facets of the rehabilitation process, such as housing, education and health care. Thus, discrimination on the ground of criminal record can result in homelessness, poverty, ill health, limited further education and training opportunities, and, in many cases, recidivism.

4.1 Practical difficulties for people with criminal records

In the course of its research and consultation work in preparing this submission, PIAC identified a number of significant practical difficulties faced by people with criminal records who are attempting to access employment. These include the following:

People with criminal records are more likely to have 'gaps' in their employment histories and less likely to have references from former employers.
Upon release from prison many ex-offenders may not be 'work ready' in the sense of having suitable clothing to wear to job interviews or essential work gear, such as work boots and tools of trade.
Personal concerns associated with re-entering the community, including finding accommodation, obtaining transport and re-establishing relationships with family and friends may impact upon the ability of ex-offenders to seek work, and at times, even take priority over job seeking.
Job-placement agencies tend to provide inappropriate support and to be judgmental in their approach towards ex-offenders.
Many ex-offenders have unpaid fines and debts on release from prison. In NSW, the State Debt Recovery Office enforces such debts, and failure to pay may result in the ex-offender's driver's license being suspended and/or their vehicle registration being cancelled. This limits employment opportunities, particularly in rural and regional areas, where a significant number of positions require a person to have a driver's license and/or their own means of transport.
An employer's insurance providers may refuse to provide insurance cover to employees with criminal records, thereby creating a further barrier to employment (see, for example, Case Study 3).
Ex-offenders may have limited personal networks and therefore less access to informal information about job vacancies. The low self-esteem and lack of self-confidence that many suffer as a result of institutionalisation may make them less proactive than other job seekers in seeking employment.
Confusion about the operation of spent conviction schemes in different jurisdictions means that job seekers with criminal records are often uncertain about whether to disclose their criminal history to prospective employers. This may lead to them being perceived as dishonest by employers (see Case Study 1), if a criminal record check subsequently reveals convictions that they have not disclosed.
People with criminal records are more likely to be illiterate^[8] or to have low levels of education.^[9] They may therefore have difficulty reading and understanding job advertisements and completing job application forms.
There is little support for people with criminal records who are seeking to access employment. According to a Community Restorative Centre worker interviewed by PIAC, little or no help is provided to prison inmates to assist them in developing interview skills or employment resumes. While some may get a TAFE qualification in prison, they are unlikely to have the work gear essential to being able to take up a job if it is offered, for example, work boots and tools.
There is a lack of funded programs available to assist ex-prisoners in making the transition to work. Changes to the Corrective Services grants process in recent years have meant that organisations such as Community Restorative Centres, which previously received funding to help clients to find employment, now have to tender for specific tasks. This has made it more difficult for them to provide employment services to ex-offenders.
Many ex-offenders choose to live in regional areas in order to avoid returning to the influence of old circles in the cities, therefore avoiding risk of re-offending. However, there is less work in these areas, and also a lack of suitable accommodation. This tends to perpetuate the cycle of unemployment. Without stable housing it is very difficult to obtain work. Most job applications require the applicant to provide an address and contact number. However, for many ex-offenders, particularly those in rural areas, this may not be possible.
Many ex-offenders find it difficult to maintain privacy concerning their criminal records, particularly in regional areas. This may lead to informal discriminatory practices, as has been the experience of EF (see Case Study 3 above) who claims that voluntary management committees of family and community support agencies, where he has applied (unsuccessfully) for work, frequently seem to know about his assault convictions, presumably through local informal networks.

For many people, the impact of having a criminal record has been so severe that they are no longer able to work in their chosen field or occupation. For example, AB is no longer able to work as a nurse (see Case Study 1 above) and EF, who specialised in the area of community development, now works for relatives in a hotel (see Case Study 3 above). Ultimately, this represents a significant social cost, as the community is denied the benefit of the skills, experience and training that these people have received and in which the community has invested.

4.2 How the difficulties are addressed by the individuals

Responses of people with criminal records to the difficulties that they encounter in seeking employment vary.

On the whole, PIAC's research indicates that very few are likely to complain about discriminatory treatment, either through formal or informal complaint mechanisms. To some extent, this may be because they have limited knowledge of their rights in relation to discrimination on the ground of criminal record and limited access to legal representation and/or advice. It is also likely that lack of communication skills, combined with lack of confidence and a distrust of authority figures may inhibit them from approaching an employer for an explanation as to why they have not been employed, or attempting to negotiate an alternative solution.

Many ex-offenders simply elect to avoid disclosing their criminal history to prospective employers. It has been estimated that 60% of job applicants who have a criminal conviction fail to admit it.^[10] Ultimately, however, this is likely to backfire for the individual, because if their failure to disclose is subsequently discovered by the employer, it is likely to be used by the employer as a justification for not hiring them, or for dismissing them if they have already been hired. In addition, failure to disclose may be a perpetuation of the 'criminal' behaviour that an ex-offender is seeking to move away from during the rehabilitation process.

Still other ex-offenders may decide that searching for a job is too difficult, and opt out of employment altogether. Feeling that they can never 'live down the past', they believe that there is no point in applying for a job. Lacking supportive employment programs and accessible advocates, many will simply give up. This may lead to recidivism, with many re-offending out of necessity or out of a belief that 'it's easier to go back to gaol'.

4.3 Particular difficulties faced by Indigenous people

Indigenous people experience lower levels of employment and higher percentages of criminal record than other community members.

Indigenous people are significantly over-represented in the criminal justice system. According to recent figures from the Australian Bureau of Statistics, Indigenous people are^[10] times more likely than non-Indigenous people to be imprisoned.^[11] They are also more likely to have had episodes of prior imprisonment.^[12]

There is also clear evidence of an over-representation of Indigenous people in the unemployment figures. The 2001 Census indicated that Indigenous persons in the labour force were almost three times as likely as non-Indigenous persons to be unemployed.^[13] Recent research demonstrates that the fact of having been arrested significantly reduces the probability of employment for Indigenous men and women.^[14]

In preparing this submission PIAC consulted a number of Aboriginal employment agencies and Aboriginal community organisations about the particular difficulties experienced by Indigenous people with criminal records in accessing employment. Organisations consulted included the Naamoro Aboriginal Employment Service, the Aboriginal Legal Service, the NSW Aboriginal Land Council, and Community Development Employment Projects.

Issues identified by these organisations included the following:

Prospective employers almost always require criminal record checks for Indigenous job seekers.
Having a criminal record may preclude Indigenous people from taking up official positions within the community or from being employed in positions with community organisations. For example, there are provisions of the Aboriginal Land Rights Act 1983 (NSW) that operate to disqualify people from holding certain offices with local and regional Aboriginal Land Councils or being employed as staff members of such Councils if they have been convicted of specified offences under the Crimes Act, 1900 (NSW) within the last five years.^[15] This often limits the ability of older members of Indigenous communities to act as mentors and role models for younger generations.
The close-knit nature of many Indigenous communities frequently means that a person's criminal record will be common knowledge.
Many Indigenous people find it difficult to get their driver's licence due to low levels of literacy and the inaccessibility of Roads and Traffic Authority offices to people living in remote areas. Many may also be disqualified from holding a licence due to unpaid fines. This limits employability, particularly in rural or remote areas where many positions may require the incumbent to hold a driver's licence.
Due to the difficulties they experience in obtaining their driver's licence, many Indigenous people (particularly juveniles) commit offences under the Road Transport (Driver Licensing) Act 1997 (NSW), including driving without a licence, driving while never having held a licence, and possession of a licence obtained by dishonest means. In 2001, driving license offences were the third highest offence category for convictions of Aboriginal people, after assault offences and disorderly conduct.^[16]

Some agencies suggested that special driver education programs should be set up as a means of assisting more Indigenous people to obtain licenses, thereby decreasing their prospects for becoming involved in the criminal justice system and enabling greater participation in employment.

4.4 Relationship between homelessness and employment discrimination on the basis of a criminal record

Homelessness is a broad concept and includes people without any accommodation at all, such as those who sleep rough, squat or use tents in places such as parks, people who move from one form of temporary shelter to another, such as crisis accommodation provided under the Supported Accommodation and Assistance Act 1985, and people who live in boarding houses on a medium-to long-term basis. On the night of the census in 2001, 99,900 Australians identified their housing as being within one of these categories.^[17]

For many people, just being homeless increases significantly the risk of contact with the criminal justice system and the likelihood of being convicted for a criminal offence. People who have a mental illness who are experiencing homelessness are up to forty times more likely to be arrested and twenty times more likely to be imprisoned than those with stable, suitable accommodation.^[18]

It is difficult to accurately measure the numbers of people experiencing homelessness who have a criminal record. In most cases having a criminal record is not a matter that should be relevant to an accommodation provider. For people attempting to move on with their life, there is a realistic fear that disclosing a criminal record may result in a failure to secure accommodation. It is, however, likely that people who are homeless or have experienced homelessness are more likely to have a criminal record than members of the population in stable accommodation. Homelessness may result in criminal convictions, through public order offences that would be legal in the private sphere.^[19]

There are also high rates of homelessness for ex-prisoners who often receive little community support to transition back into the community post release, with 50% of ex-prisoners homeless within nine months of their release from prison.^[20] Some figures suggest that between 20 and 50 per cent of clients in Supported Accommodation and Assistance Services are ex-prisoners.^[21] Based on these estimates, it is likely that people with criminal convictions (that may or may not result in incarceration) are a significant section of the homeless population accessing crisis accommodation.

HPLS has identified that people who are homeless or at risk of homelessness do not access legal services when they have experienced discrimination.^[22] For many people experiencing homelessness, discrimination is an everyday reality, with other needs, such as obtaining shelter and food, taking precedence over pursuing discrimination complaints.

Obtaining employment is a key step toward greater financial independence and securing stable accommodation. Many people with criminal convictions will be required to reapply for public housing, and will often have few affordable housing options. The impact of discrimination in employment on the basis of criminal record is often to prevent individuals from moving out of homelessness. It has this impact through entrenching poverty and reliance on crisis services.

The experience of discrimination promotes poor self-esteem, social exclusion and hopelessness. Most homeless people consulted by PIAC identified that they had experienced discrimination on the basis of a criminal record in society generally, as well as in employment. Discrimination often operated as a powerful disincentive to individuals to pursue job opportunities, as they believed they had little or no chance of obtaining employment due to their record.

The impact of ongoing poverty, with many individuals dependent on limited Centrelink incomes, and homelessness further places individuals at risk of recidivism, with the likelihood of increasing criminal penalties when the individual already has a criminal record.^[23] Furthermore, for many individuals experiencing homelessness, the impact is magnified by inadequate access to heath services such as drug and alcohol rehabilitation or mental health care, further placing them at risk of contact with the criminal justice system.

4.5 Employer reluctance to employ individuals with criminal records

In preparing this submission, PIAC did not consult directly with any employers or employer groups. However, PIAC's research in this area, as well as its consultations through its HPLS and Indigenous Justice Project networks indicates that employers may be reluctant to employ people with criminal records for the following reasons:

Stereotyping of and generalisations about people who have criminal records, such as 'once a criminal, always a criminal.'
Negative attitudes by employers towards people with criminal records. According to one manager at an Aboriginal employment agency, employers see people with criminal records as 'problems'.
Occupational health and safety concerns, for example, fear that ex-offenders may be violent towards other employees and clients.
Perceptions that people with criminal records are less likely to be honest or trustworthy as employees.
Lack of understanding by employers about the rehabilitation process and the difficulties that many ex-offenders experience in re-entering the workforce. Many ex-offenders will have been isolated from a work environment for some time and may consequently have a lowered work ethic and sense of responsibility towards the employer. This may manifest as lack of punctuality or reliability, or even a failure to attend at work after only a few days in the job. In many cases, the problem is not one of laziness or lack of motivation, but more one of a lack of understanding and experience of the modern workplace.
Confusion amongst employers about their rights and obligations in this area. According to one source, 'employers feel they have no rights'.

In fact, there is little evidence to justify many of the concerns that employers may have about employing people with criminal records. There is no evidence that previous criminal behaviour is a predictor of future criminality. Nor is there any 'typical' criminal or applicable stereotype. According to one commentator, 'criminals by definition are largely ordinary people who made a mistake, an error of judgement, drank one drink too many, ran a red light or have lost their temper'.^[24]

Safety concerns regarding people with criminal records can be addressed through appropriate risk assessment mechanisms rather than through exclusion of such people from the workplace. In any event, the majority of crimes tend to be non-violent in nature.^[25]

4.6 Strategies to address stereotyping of people with criminal records

Breaking down stereotypes of people with criminal records is likely to be an effective means of reducing discrimination. Strategies suggested by some of the organisations and individuals consulted by PIAC included:

Greater support and funding for post-release transitional programs that will assist ex-offenders in obtaining employment, for example, schemes involving agreements by employers to employ people with criminal records.
Development of funded programs that focus on providing support to ex-offenders after they have been employed. For many offenders, retaining a job may be just as difficult as obtaining one in the first place.
Employment schemes involving agreements with potential employers who would theoretically be more sympathetic to ex-prisoners.
Greater career guidance counseling and vocational skills/training opportunities for ex-offenders.
Enhanced access to day-work-release programs for prison inmates. Community Restorative Centre workers have noted that sometimes employment in a day-work-release scheme will continue after release from prison.
Clarification of employer rights and obligations under the common law, employment and privacy laws, and occupational health and safety laws, especially where the employer is involved in an employment scheme to benefit persons with a criminal record.

PIAC notes that most of the above strategies are not ones that HREOC has the power to implement. However, PIAC submits that HREOC could play an important role in breaking down stereotypes of people with criminal records through human rights education, particular among employer groups. There is evidence that educational programs that promote the diversity, dignity and respect of the individual are a powerful means of promoting systemic change. In its recent report into the operation of the DDA, the Productivity Commission noted that employer groups are more supportive of education than further regulation, and that many of them collaborate with relevant agencies to educate their members as to the benefits of employing people with disability.

While PIAC is strongly of the view that legislative change is needed to provide for legally-enforceable protection against discrimination, it also recommends that HREOC conduct targeted education programs amongst employer and employee groups to encourage the acceptance of people with criminal records in the open labour market. Such training should focus on raising awareness about the nature of the rehabilitation process and the special needs of ex-offenders in the workplace, in particular the problems that they experience in adjusting to a work-based environment. Ideally education programs could also be used to clarify employer rights and obligations in relation to employees with criminal records.

PIAC also notes that Australian industry currently faces a severe skills shortage. According to a recent report by the Australian Industry Group, between 18,000 and 21,000 positions for skilled tradespersons in manufacturing remain unfilled. These include positions for machinists, boilermakers, electricians, fitters and turners, and welders.^[26] PIAC submits that there be a focus on the provision of trade-related training and apprenticeships to prisoners while in correctional detention in order to provide those people with a trade qualification on release. This would help address the skills shortages in industry, while enhancing the post-release employment prospects for prisoners.

Recommendation

5. Legal Framework

5.1 Legal limits on criminal records checks

The interaction between privacy laws and laws concerning discrimination on the ground of criminal record is complex and tends to be frequently overlooked and misunderstood.

The Privacy Act 1988 (Cth) (the Privacy Act) imposes certain restrictions on the manner in which personal information can be collected, as well as on the manner in which it can subsequently be used. The Privacy Act contains eleven Information Privacy Principles (IPPs) that apply to Commonwealth and ACT government agencies. It also has ten National Privacy Principles (NPPs) that apply to parts of the private sector and all health service providers. The term 'personal information' is defined in section 6 of the Privacy Act as being:

. information or an opinion (including information or opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.

The definition of 'personal information' in section 4 of the Privacy and Personal Information Protection Act 1998 (NSW) (the PPIP Act) is in very similar terms. However, unlike the Federal Privacy Act, which applies to both the public and private sectors, the PPIP Act only applies to public sector agencies.^[27]

It is clear that a person's criminal record would be 'personal information' under both the Privacy Act and the PPIP Act. In fact, the Privacy Act specifically includes criminal record within the definition of 'sensitive information' ^[28], which means that it is subject to additional restrictions in its manner of collection.^[29]

Despite the fact that criminal records would clearly be covered by both federal and state privacy legislation, it appears that many employers deal with criminal records in a manner that is haphazard and seemingly at odds with requirements of privacy legislation. In some cases, it appears that criminal record checks may be carried out without a person's knowledge or consent (see, for example, Case Study 2).

In order to comply with privacy legislation, pre-employment screening for a criminal record will usually require the applicant's consent. However, there is a real question as to whether, in the context of a job application or interview situation, any consent that is given is given on a basis that is voluntary. The reality for most applicants is that they have no alternative but to consent to a criminal record check if they wish to be considered for a position.

A job applicant is not obliged to disclose their criminal record except where specific legislation applies, such as child protection legislation. However, it appears that many employers believe they are entitled to make enquiries about criminal records. It appears that many job applicants also do not realise the limits on their obligation to disclose, and believe that they are obliged to disclose their criminal records to prospective employers either with or without a specific enquiry from the employer.

PIAC notes and is extremely concerned about HREOC's view as expressed in the Discussion Paper:

While there is no absolute obligation to answer an appropriate question about a criminal record, an employer may be entitled to refuse to hire a person on the basis of failure to answer a reasonable question. When an employee does answer a question about criminal record, the response should be honest and fully candid.

There may be some circumstances where the applicant perceives that there is no link between the position for which they are applying for and their criminal record. In principle an employee may be entitled to refuse to answer in this situation. However, in practice, it is often difficult to determine whether a particular criminal record is relevant to a particular position. Further, if an employee withholds information, rather than refusing to answer the question, and a criminal record is later discovered, they may be dismissed for dishonesty rather than their criminal record.^[30]

The reliance by employers on a failure to disclose a criminal record as the basis of a subsequent dismissal has been considered by industrial tribunals and found to be unsupportable, except where the criminal record or the fact of dishonesty is relevant to the position.^[31]

Under federal and state privacy legislation, personal information may only be collected to the extent necessary for a lawful purpose. For example, section 8 of the PPIP Act provides that a public sector agency must not collect personal information unless the information is collected for a lawful purpose that is directly related to the function or activity of that agency and the collection of the information is reasonably necessary for that purpose.

Similarly, National Privacy Principle 1 of the Privacy Act provides that personal information shall not be collected by a collector for inclusion in a record or in a generally available publication unless the information is collected for a purpose that is a lawful purpose directly related to a function or activity of the collector; and the collection of the information is necessary for or directly related to that purpose.

It is strongly arguable that the act by an employer of obtaining a person's entire criminal record would be regarded as excessive for employment purposes. Rarely will it be necessary for an employer to obtain comprehensive details about a person's entire criminal record, no matter what the nature of the job.

Employers also have an obligation to ensure that information collected about a job applicant's criminal record is not distributed. Case Study 3 demonstrates that this obligation may not always be adhered to, particularly in regional areas.

The Privacy Act^[32] and the PPIP Act^[33] also contain provisions requiring that a person must be informed that the information is being collected, why it is being collected and who will be storing it and using it. The agency should also tell a person how they can obtain a copy of and correct this information. It would appear that many employers who conduct criminal record checks or otherwise access about criminal record of prospective employees seldom provide this level of information.

National Privacy Principle 1 of the Privacy Act provides that an organisation must not collect personal information unless the information is 'necessary' for one of its functions or activities and that it should not be collected in an unreasonably obtrusive way.^[34] Similarly, section 11 of the PPIP Act requires an agency to take such steps as are reasonable in the circumstances to ensure that information that is collected about a person is relevant, not excessive, accurate, up-to-date and complete and that collection should not intrude unreasonably into a person's personal affairs. These provisions would appear to put the onus on employers to only check for criminal convictions that are relevant to the job, to ensure that the information obtained is accurate and that it is not excessive. If a comprehensive criminal record check is carried out, with no consideration as to what offences, if any, would be relevant to the particular job, this would clearly be excessive and a breach of relevant privacy legislation.

We also note that exemptions apply under federal privacy laws for some small businesses and for employee records that limit the potential application of these laws.^[35] However, the pre-employment process is not exempted.

5.2 The purpose of anti-discrimination laws

The clear purpose of anti-discrimination laws is to redress disadvantage and less favourable treatment experienced by individuals and groups because of a particular shared characteristic. Governments, at the state, territory and federal levels have recognised over the years that certain groups experience systemic disadvantage and stereotyping because of a shared characteristic, such as their race, ethnicity or gender. In order to overcome such disadvantage and stereotyping, legislation has been promulgated to make achieve both formal and substantive equality for people with identified characteristics.

In many overseas jurisdictions such legislation works in concert with bills or charters of rights to ensure that equality and equality opportunity are achieved for all members of a society irrespective of a particular characteristic. In Australia, in the absence of a charter or bill of rights, governments have focused on introducing legislation that prohibits discriminatory treatment based on specific identified characteristics. One key aspect of that legislation is to promote equality of employment opportunity for individuals within the identified groups through requiring employers to exclude taking account of the characteristic when it is an irrelevant consideration in employment decisions.

Other than in the non-enforceable provisions of HREOCA, there is extremely limited capacity to extend the scope of the legislative protection to other groups that experience negative stereotyping or systemic disadvantage because of a shared characteristic.

PIAC has, in the earlier sections of this submission, identified a range of disadvantages currently suffered by people with criminal records simply because of that characteristic. In the circumstances, it is PIAC's view that these people form an identifiable group for whom protection against discrimination is needed.

5.3 Existing prohibitions on employment discrimination on the ground of criminal record

Existing legislation in Australia provides very little protection for people with criminal records against employment-related discrimination and fails to comply with international obligations. In addition, lack of consistency in the legislation across jurisdictions makes the existing protections complex and inaccessible and contributes to ongoing confusion about rights and obligations for both employers and employees.

Federal discrimination laws prohibiting discrimination

Unlike race, sex, disability and age discrimination^[36], discrimination on the ground of criminal record is not the subject of a 'stand alone' Federal legislative instrument.

The effect of Regulation 4 of the Human Rights and Equal Opportunity Commission Regulations (Cth) is to include 'criminal record' in the list of identified characteristics provided in the definition of 'discrimination' in sub-section 3(1) of HREOCA. Section 3(1) defines 'discrimination' as including 'any distinction, exclusion or preference made on the basis of [an identified characteristic] that has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation'.

The effect of these provisions is that if a person believes that they have been discriminated against because of their criminal record, they may make a written complaint to HREOC. HREOC then has the power to investigate and conciliate the complaint and to make recommendations.^[37] However, any recommendations that it makes are not binding or enforceable. The most that HREOC can do, if it finds that the employer has acted in a discriminatory way, is to report the matter to the Federal Attorney-General, who is then required to table the report in Federal Parliament.^[38] HREOC cannot make an enforceable order directly against an employer, for example, that the employer pay compensation or carry out some other redress for the injury or losses suffered by the complainant.

The case of Christensen v Adelaide Casino Pty Ltd, outlined in the Discussion Paper, demonstrates the ineffectiveness of this regime. In that case, the employer elected to ignore HREOC's recommendations, and the employee was ultimately left with no remedy despite the Report about the employer being tabled in Federal Parliament.

The lack of effective sanctions at the Federal level results in a lack of adequate protection for most individuals and undermines the status and authority of HREOC. Employers are unlikely to be deterred from engaging in discriminatory conduct without the threat of enforceable remedies and sanctions.

Under the Workplace Relations Act 1996 (Cth) (WRA) it is unlawful for an employer to terminate employment on certain discriminatory grounds. These grounds are set out in section 170CK(2) of the WRA and include trade union membership or activity or non ¬membership^[39]; race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin^[40]; and absence from work due to illness or injury or due to maternity or parental leave.^[41] However, 'criminal record' is conspicuously absent from section 170CK(2). Section 170CK is stated to have the object of making:

. provisions that are intended to assist in giving effect to:
(a) the Convention concerning Discrimination in respect of Employment and Occupation, a copy of the English text of which is set out in Schedule 1 to the Human Rights and Equal Opportunity Commission Act 1986; and

(b) the Family Responsibilities Convention.

The Convention concerning Discrimination in respect of Employment and Occupation (the Convention) includes, at Article 1, a definition of discrimination:

1. For the purpose of this Convention the term "discrimination" includes-

B(a) any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation;

(b) such other distinction, exclusion or preference which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation as may be determined by the Member concerned .

The fact that the Federal Parliament has extended the definition of 'discrimination' for the purposes of section 31 of HREOCA, but has not done so for the purposes of section 170CK(2) creates an unfortunate inconsistency, particularly given the almost identical language of the definition in section 3(1) of HREOCA and that found in the Convention.

At the Federal level, the overall impression is that the Federal Parliament regards discrimination on the ground of criminal record as being less 'serious' and less deserving of protection than other forms of discrimination, such as race, sex, disability and age discrimination. Given the potentially devastating impact that discrimination on the basis of criminal record may have on a person's life, and the vulnerability of the population group involved, it is difficult to see how this view can be justified.

As a party to the Convention, Australia is required by Article 2 to:

. pursue a national policy designed to promote, by methods appropriate to national conditions and practice, equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination in respect thereof.

Having provided that 'criminal record' is a protected ground for the purposes of the definition of section 3(1) and, therefore, section 31 of HREOCA, and having enacted legislative protection against discriminatory dismissals under section 170CK of the WRA, PIAC submits that a legislative protection against discrimination in employment on the basis of criminal record is a method 'appropriate to national conditions and practice'.

State and territory discrimination laws

Only the Northern Territory and Tasmania have included criminal record as a ground of unlawful discrimination within the provisions of their anti-discrimination legislation. Sections 14 to 16 of the Anti-Discrimination Act 1998 (Tas) and sections 19 and 20 of the Anti-Discrimination Act 1992 (NT) make discrimination on the ground of an 'irrelevant criminal record' unlawful.

Western Australia and the Australian Capital Territory have provisions in their anti ¬discrimination legislation making it unlawful for an employer to discriminate against a job applicant on the basis of any 'spent' conviction. However, this does not prevent discrimination in those jurisdictions on the basis of convictions that are not 'spent'.

In Victoria, New South Wales, South Australia and Queensland, anti-discrimination legislation does not extend to discrimination on the basis of a criminal record at all. Significantly, over 20 years ago, the NSW Anti-Discrimination Board advocated the inclusion of criminal record as a ground of unlawful discrimination in the Anti-Discrimination Act 1977 (NSW) (the ADA).^[42] To date, nothing has been done to implement this recommendation, despite the fact that a number of additional characteristics have been added to the ADA since that time. There appears to be no logical reason for the non-inclusion of criminal record as a ground of unlawful discrimination in the ADA, or indeed in equivalent legislation in Victoria, South Australia and Queensland.

Spent convictions legislation

Spent conviction laws allow for criminal records to be amended in relation to certain offences after specified periods of time. In theory, these schemes offer protection against discrimination, because they mean that a former offender has an opportunity to 'wipe the slate clean' after the elapse of the specified period, thereby decreasing the potential for employers to make decisions based on the person's criminal record.

Spent conviction provisions exist at the Federal level^[43], and in all states and territories^[44] apart from South Australia and Victoria, which have administrative guidelines about disclosure of criminal convictions. We note that the Attachment C to the Discussion Paper sets out in detail the specific features of these schemes.

Under section 85ZV of the Crimes Act 1914 (Cth), once a conviction is 'spent' under that legislation, then the person is:

. not required . in any State or Territory [or to the Commonwealth or the government of another country] -to disclose to any person, for any purpose, the fact that the person has been charged with, or convicted of, the offence .

The legislation in NSW is much less forgiving with no application where a person has been convicted and received a custodial sentence of greater than six months. This potentially leads to many relatively minor offences remaining on a person's record indefinitely. By way of example, the maximum sentence available for a second offence of stealing a domestic pet is 12 months^[45], the first offence being punishable by up to six months imprisonment.^[46] Resisting or hindering police is punishable by up to 12 months imprisonment.^[47] Theft of a car is punishable by up to 10 years imprisonment^[48], and possession of a prohibited drug is punishable by up to 2 years imprisonment ^[49]

There is significant potential for spent convictions legislation to have disparate impact depending on interpretive factors such as how the length of the sentence is measured for the purposes of determining whether or not a conviction can be 'spent'. For example, it could be the length of the sentence as imposed by the court, or the length of the sentence actually served in correctional detention, or the length of the sentence served including parole or probation. Such potential differences between jurisdictions only serve to add to the confusion about whether or not (and when) a conviction is 'spent'.

In PIAC's view, spent conviction schemes are ineffective as a means of reducing discrimination. The law in this area is inaccessible and confusing. There are significant differences across jurisdictions in relation to the types of convictions that can become spent, the consequences of a conviction becoming spent, and the length of the crime-free period required. These differences can lead to confusion about whether or not a conviction is spent, particularly if a person has convictions recorded in more than one jurisdiction. This may lead to an ex-offender making inaccurate assumptions about his or her criminal record (see Case Study 1).

5.4 Improving protection against discrimination

It is clear that there is a need for more effective legislation at a Federal level to protect against discrimination on the ground of criminal record. It is PIAC's submission that this could be achieved through amendments to the Human Rights and Equal Opportunity Act 1986 (Cth) that would specifically make discrimination on the ground of criminal record unlawful and provide for complainants to have enforceable rights and formal enforcement mechanisms through the Federal Court or the Federal Magistrates Service.

Amendment of HREOCA would be a more pragmatic process than enacting new Federal legislation that specifically addresses criminal record discrimination. Amendment of HREOCA to make discrimination on the basis of criminal record unlawful would also provide an opportunity for upgrading protection in relation to other grounds of discrimination currently not specified in individual legislation at the Federal level, for example, political opinion, religion, sexual preference and trade union activity; and for extending the coverage to areas other than employment.

In addition, consideration could be given to the promulgation of a Bill or Charter of Rights that provides for equality rights using an inclusive definition.

PIAC also recommends that governments at the state and territory level (with the exception of the Northern Territory and Tasmania) be urged to amend their anti ¬discrimination legislation to include criminal record as a ground of unlawful discrimination.

Stronger legal protections and sanctions against discrimination in this area would provide ex-offenders with more confidence to be open and frank about their records, thereby promoting the requisite relationship of trust and good faith between the employer and employee. According to worker with a Community Restorative Centre, 'greater human rights protections in this area would not stop all discrimination, but it would make a big difference if [people with criminal records] can be honest'.

5.5 What does 'criminal record' encompass?

There is currently no definition in HREOCA or the Human Rights and Equal Opportunity Commission Regulations of the term 'criminal record'. There is a danger that the term 'criminal record' may be interpreted narrowly so as to only prevent discrimination that relates to previous convictions.

The Discussion Paper notes that the information disclosed in a criminal record check will vary from jurisdiction to jurisdiction depending on a range of factors, including the purpose of the check and the agency requesting it. However, it appears that most criminal record checks are comprehensive and will provide information not just about previous convictions, but also about court appearances, charges, matters awaiting court hearing, matters currently under investigation and findings of guilt with no conviction.

Discrimination on the basis that a person has been charged or arrested in relation to a particular offence is likely to be just as damaging as discrimination on the basis of a conviction. According to the National Committee on Discrimination in Occupation and Employment:

. some cases have involved an assumption by employers that persons charged with criminal offences would be found guilty or that, even if acquitted, the reputation of such persons would be so compromised as to warrant their non-employment or dismissal.^[50]

Case Study 4 provides an example of an employer using information about a pending charge to delay the appointment of a potential employee for a period of several months.

Anti-discrimination legislation should make it clear that it is unlawful to discriminate not only on the basis of previous criminal convictions, but also on the basis of other factors that may be detailed on a criminal record, including investigations, arrests, charges, cases dismissed, and convictions against which appeals have been taken.

PIAC notes that legislative provisions in the Northern Territory and Tasmania define 'criminal record' as including 'record relating to arrest, interrogation or criminal proceedings'.

5.6 When might a criminal record be relevant to employment?

It is clear that there are certain circumstances where a criminal record may be relevant to employment. For example, if a job involves handling drugs, it may be legitimate for an employer to reject an application from a person who has a history of drug offences. Some states and territories have legislation providing that in particular types of employment, such as working with children, people with a certain type of criminal record will not be able to be employed.

Currently, HREOCA allows an employer to discriminate on the basis of criminal record if the person's criminal record means that they cannot perform the 'inherent requirements' of the job. Provisions in the Northern Territory and Tasmanian legislation allow discrimination on the ground of criminal record in circumstances where a criminal record is relevant to the position.

In order to determine whether it is appropriate to exclude a person with a criminal record from a particular job, the 'inherent requirements' of that job must be identified at the time the job is being designed or reviewed prior to recruitment. Careful consideration should be given at that time to the question of what, if any, prior criminal conduct would disqualify a candidate from performing the inherent requirements. In the event that a candidate has a criminal record disclosing such conduct, the employer should still be required to consider whether, in all of the circumstances, that disqualifies them from being the successful candidate. This may require consideration of the circumstances of the conduct.

It is important to note that a person with a criminal record is not automatically precluded from practising as a lawyer or barrister. In determining whether or not a person should be admitted to practice, the relevant bodies undertake an inquiry into their 'fitness' for the duties of an 'officer of the court'. While a criminal conviction may be relevant to that inquiry, it is not an automatic determinant.

The burden is on the employer to identify the inherent requirements of the particular position prior to recruitment commencing, and then to consider their application to a specific candidate.

PIAC urges HREOC to consider developing guidelines on what constitutes an 'inherent requirement' in employment, the timing and process for determining 'inherent requirements' and factors an employer should consider when recruiting.

5.7 Difficulties in using anti-discrimination legislation

There are a number of barriers that may prevent a person with a criminal record from using existing anti-discrimination legislation to pursue a complaint of discrimination on the ground of criminal record. These include the following concerns:

People with criminal records may have limited awareness of relevant anti ¬discrimination and spent conviction laws. To date, little has been done to raise community awareness about discrimination on the ground of criminal record. In addition, there have been few decided cases concerning alleged discrimination on the ground of criminal record, and, as yet, no guidelines published by HREOC about this type of discrimination.
People with criminal records are likely to have limited access to legal services. Without stable or ongoing employment, they are unlikely to able to afford legal advice and/or representation. Even where legal aid, Community Legal Centres, or pro bono services are available, the individuals may have difficulty engaging with those services because they may not understand the legal nature of their problem, or they may not trust the legal system;
Complaints to HREOC and relevant state and territory anti-discrimination bodies must generally be in writing. This may present a problem to ex-offenders who are illiterate or have limited formal education.
In order to bring a complaint successfully, it will be necessary for the person to prove that they were denied a position or dismissed by an employer because of their criminal record. In most cases it will be very difficult to obtain evidence of this. According to a worker from the Community Restorative Centre, most ex-prisoners are screened out of employment at the application stage and are given no reason for this apart from 'unsuitability'. Few make it to a formal job interview, where discriminatory employment practices may be more identifiable.
Unsuccessful complainants may face adverse costs awards in some jurisdictions.

Some of these concerns can be addressed through increasing public awareness of rights and obligations. Others highlight the need for examination of complaints processes to ensure they are as accessible and non-threatening as possible, and to ensure that people seeking to use legal processes are not disadvantaged where they are functionally illiterate.

Consideration needs also to be given to legislation that focuses on the systemic removal of barriers to employment and in employment. While legislation requiring organisations to implement equal opportunity programs has been limited at the Federal level to gender discrimination, it is PIAC's view that this inquiry provides an opportunity for HREOC to consider the extension of such legislation to other equality seeking groups, including people with a criminal record.

Recommendation

That the legislation prohibiting discrimination on the basis of criminal record include provisions:

prohibiting questions about criminal record unless the inquiry is relevant to an
inherent requirement of an employment position;
making it clear that other workplace participants are prohibited from disclosing
any information about a person’s criminal record and that to do so is unlawful discrimination.

Recommendation

That the Human Rights and Equal Opportunity Commission initiate a process for nationwide reform of federal, states and territory spent conviction legislation to ensure that the laws are uniform and, for the purposes of determining what convictions cannot be ‘spent’, limit ‘conviction’ to actual time spent in correctional detention.

Recommendation

when is it legitimate for employers to require an applicant to consent to a preemployment criminal record check;
what constitutes an ‘inherent requirement’ in employment;
at what stage of a recruitment process ‘inherent requirements’ should be determined;
how the individual circumstances of a candidate’s situation should be
considered when determining whether or not they fulfill the ‘inherent requirements’;
when is a failure to disclose a criminal record relevant to the continuation of the employment relationship

Recommendation

That the term ‘criminal record’ in all federal, state and territory anti-discrimination legislation be defined as including ‘record relating to arrest, interrogation or criminal proceedings’.

6. Conclusions

It is in the public interest that persons convicted of criminal offences should be given a fair opportunity to rejoin society and to make an effective contribution to the community. However, discrimination on the ground of criminal record acts as a substantial barrier to this objective by denying many ex-offenders an opportunity to access employment.

It is essential that steps be taken to raise community awareness about the potentially serious impacts that this form of discrimination may have on individuals, and to clarify the responsibilities of both employers and employees.

However, without the potential of legal action, particularly at the Federal level, other strategies to reduce discrimination against people with criminal records will be ineffective. Comprehensive law reform in this area is both imperative and long overdue.

PIAC would be very pleased to participate in a working group or similar to undertake the development, with HREOC, of appropriate guidelines and legislative proposals.

7. Bibliography

Aboriginal Justice Advisory Council, Driving Offences and Aboriginal People Report, Stage 1of the Offence Targeting Project (2003) (available at http://www.lawlink.nsw.gov.au/ajac.nsf/pages/reports)

Ai Group economics, Australia's Skills Gap: Costly wasteful and widespread (2004) Australian Industry Group (available at http://www.aigroup.asn.au/scripts/cgiip.exe/WService=aigroup/ccms.r?Roxy=0 x00019921&PageId=916)

Australian Bureau of Statistics, Population Characteristics, Aboriginal and Torres Strait Islander Australians (2001) AGPS, Canberra. Australian Bureau of Statistics, Australian Crime: Facts and Figures (2004) AGPS, Canberra.

Australian Bureau of Statistics, Prisoners in Australia (2004) AGPS, Canberra.

Eileen Baldry, 'Prison boom will prove a social bust', Sydney Morning Herald (Sydney) 18 January 2005 (available at http://www.smh.com.au/news/Opinion/Prison-boom-will-prove-a-social-bust/2005/01/17/1105810839489.html)

Eileen Baldry, Desmond McDonnell, Peter Maplestone and Manu Peeters, 'Ex-Prisoners and Homelessness' (Paper presented at the 3rd National Homelessness Conference: Beyond the Divide. Brisbane, 6-8 April 2003) 4 (available at http://www.afho.org.au/4_publications/conference_papers/Baldry.pdf).

Chris Chamberlain and David MacKenzie, Australian Census Analytic Program: Counting the Homeless 2001 (2003) Australian Bureau of Statistics, Canberra (available at http://www.salvationarmy.org.au/homeless/reports.asp).

Angela Gorta and H Panaretos, 'Parolee Perspectives on Prison Education and Work Programs' (1990) 23 Australian and New Zealand Journal of Criminology 1.

Boyd Hunter and Jeff Borland, 'The Effect of Arrest on Indigenous Employment Prospects' (1999) 45 Crime and Justice Bulletin 23.

National Board of Employment, Education and Training, Employment, Education and Training Opportunities for Prisoners and Ex-prisoners (1992) AGPS, Canberra.

National Committee on Discrimination in Occupation and Employment, th Annual Report 1984-5 (1986) AGPS, Canberra.

NSW Anti-Discrimination Board, Annual Report 1984 (1985) New South Wales Government Printer, Sydney.

NSW Department of Corrective Services, Annual Report 2000-2001 (2002) New South Wales Government Printer, Sydney.

NSW Legislative Council, Select Committee Inquiry into the Increase in the NSW Prisoner Population: Final Report (2001) New South Wales Government, Sydney.

John Tomlinson, Wendy Patton, Peter Creed and Richard Hicks (eds), Unemployment Policy and Practice (1997) Australian Academic Press, Brisbane.

1. [2000] FCA 658.
2. [2000] HREOC H99/115 (Unreported, Hearing Commissioner Carter, August 2000).
3. (1993) 118 ALR 80.
4. National Board of Employment, Education and Training, Employment, Education and Training Opportunities for Prisoners and Ex-prisoners (1992).
5. Jeff Powis ‘Unemployment and Special Needs of Ex-Offenders’ in John Tomlinson, Wendy Patton, Peter Creed and Richard Hicks (eds), Unemployment Policy and Practice (1997).
6. Angela Gorta and H Panaretos ‘Parolee Perspectives on Prison Education and Work Programs’ (1990) 23 Australian and New Zealand Journal of Criminology 1.
7. Powis, above n 5, 299.
8. ‘At least 65% of inmates entering the correctional system have low to non-functional literacy, numeracy and communication levels’: NSW Department of Corrective Services, Annual Report 2000-2001 (2002) 11.
9. It has been estimated that 60% of inmates in the NSW prison population have not completed Year 10: NSW Legislative Council, Select Committee Inquiry into the Increase in the NSW Prisoner Population: Final Report (2001) 42.
10. John Croucher, Professor of Statistics at Macquarie University, quoted in ‘NumberCrunch’, Good Weekend Magazine ( Sydney) 29 January 2005.
11. Australian Bureau of Statistics, Prisoners in Australia (2004).
12. At 30 June 2004, the proportion of all prisoners with known prior imprisonment was 58%, while the proportion of Indigenous prisoners with prior imprisonment was 77%: Australian Bureau of Statistics, above n 11.
13. Australian Bureau of Statistics, Population Characteristics, Aboriginal and Torres Strait Islander Australians (2001).
14. Boyd Hunter and Jeff Borland, ‘The Effect of Arrest on Indigenous Employment Prospects’ (1999) 45 Crime and Justice Bulletin 23.
15. Aboriginal Land Rights Act 1983 (NSW), ss 67, 79, 92, 111 and 144.
16. Aboriginal Justice Advisory Council, Driving Offences and Aboriginal People Report, Stage 1 of the Offence Targeting Project (2003).
17. Chris Chamberlain and David MacKenzie, Australian Census Analytic Program: Counting the Homeless 2001 (2003) 2.
18. Eileen Baldry, Desmond McDonnell, Peter Maplestone and Manu Peeters, ‘Ex-Prisoners and Homelessness’ (Paper presented at the 3 rd National Homelessness Conference: Beyond the Divide. Brisbane, 6-8 April 2003) 4.
19. Crimes such as those under the Summary Offences Act 1988 (NSW) disproportionately impact on people who use public space due to homelessness.
20. Eileen Baldry, ‘Prison boom will prove a social bust’, Sydney Morning Herald ( Sydney) 18 January 2005.
as ‘once a criminal, always a criminal’.
21. Baldry, McDonnell, Maplestone and Peeters, above n 18, 3.
22. In the first six months of the operation of the HPLS less than two per cent of requests for legal advice were on issues concerning discrimination.
23. Baldry, above n 20. NSW has one of the highest rates of recidivism in Australia, with over seven per cent of people in prison having previously been incarcerated.
24. Powis, above n 5, 299.
25. Australian Bureau of Statistics, Australian Crime: Facts and Figures (2004).
26. Ai Group economics, Australia’s Skills Gap: Costly wasteful and widespread (2004) 5.
27. See Privacy and Personal Information Protection Act 1998 (NSW), s 4 for definition of ‘public sector agency’.
28. Privacy Act 1988 (Cth), s 6.
29. National Privacy Principle 10.1 provides (broadly) that an organisation must not collect sensitive information about an individual unless the individual has consented to its collection, or the collection is required by law, is necessary to prevent or lessen a serious and imminent threat to the life or health of any individual, is collected in the course of activities of a non-profit organisation, or is necessary for the establishment, exercise or defence of a legal or equitable claim: Clause 10.1 National Privacy Principles, Schedule 3 to Privacy Act 1988 (Cth).
30. Human Rights and Equal Opportunity Commission, Discrimination in employment on the basis of criminal record (2004), section 6.2.
31. See, for example, The Federated Miscellaneous Workers Union of Australia and Michell Leather [1992] AIRC Print K1855 (Unreported, Commissioner Simmonds, 17 February 1992) 5; Richard Michael Parody and Australian Correctional Management Pty Ltd [2003] AIRC PR928052, (Unreported, Deputy President McCarthy, 21 February 2003).
32. See, for example, National Privacy Principle 2, National Privacy Principles, Privacy Act 1988 (Cth), sch 3, cl 2.
33. Privacy and Personal Information Protection Act 1998 (NSW), s 10.
34. See also Information Privacy Principle 1, Privacy Act 1988 (Cth), s 14.
35. Privacy Act 1988 (Cth), s 7B.
36. See the Racial Discrimination Act 1975(Cth), Sex Discrimination Act 1984 (Cth), Disability Discrimination Act 1992 (Cth) and Age Discrimination Act 2004 (Cth).
37. Human Rights and Equal Opportunity Commission Act 1986 (Cth), s 31.
38. Human Rights and Equal Opportunity Commission Act 1986 (Cth), ss 19A-35 and 46
39. Workplace Relations Act 1996 (Cth), ss 170CK(2)(b) and (c).
40. Workplace Relations Act 1996 (Cth), s 170CK(2)(f).
41. Workplace Relations Act 1996 (Cth), ss 170CK(2)(a) and (g). possession of a prohibited drug is punishable by up to 2 years imprisonment. 49
42. NSW Anti-Discrimination Board, Annual Report 1984 (1985) 111.
43. Crimes Act 1914 (Cth), ss 85ZM and 85ZV. These provisions effectively mean that where a person has been pardoned, or has been convicted and sentenced to either a non-custodial term or imprisonment of not more than 30 months, their conviction will be spent after the elapse of ten years in the case of an adult offender, and five years in the case of a juvenile offender.
44. Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld), Spent Convictions Act 1988 (WA), Criminal Records Act 1991 (NSW), Criminal Records (Spent Convictions) Act 1992 (NT), Spent Convictions Act 2000 (ACT), Annulled Convictions Act 2003 (Tas).
45. Crimes Act 1900 (NSW), s 506.
46. Crimes Act 1900 (NSW), s 505.
47. Crimes Act 1900 (NSW), s 546C.
48. Crimes Act 1900 (NSW), s 154AA.
49. Drugs Misuse and Trafficking Act 1985 (NSW), s 10.
50. National Committee on Discrimination in Occupation and Employment, 12 th Annual Report 1984-5 (1986) 11.

DISCRIMINATION IN EMPLOYMENT ON THE BASIS OF CRIMINAL RECORD

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Submission No. 80 - Public Interest Advocacy Centre

1. INTRODUCTION

2. SUMMARY OF RECOMMENDATIONS

3. PERSONAL EXPERIENCES OF DISCRIMINATION IN EMPLOYMENT BECAUSE OF CRIMINAL RECORD

4. IMPACT OF A CRIMINAL RECORD ON EMPLOYMENT PROSPECTS

5. LEGAL FRAMEWORK

6. CONCLUSIONS

7. BIBLIOGRAPHY

1. Introduction

1.1 About the Public Interest Advocacy Centre

1.2 PIAC's experience in discrimination law

1.3 PIAC's experience of employment discrimination on the basis of criminal record

The Indigenous Justice Project

The Homeless Persons' Legal Service

1.4 PIAC's methodology

2. Summary of Recommendations

Recommendation 1

Recommendation 2

Recommendation 3

Recommendation 4

Recommendation 5

Recommendation 6

Recommendation 7

Recommendation 8

3. Personal experiences of discrimination in employment because of criminal record

CASE STUDY 1

CASE STUDY 2

CASE STUDY 3

CASE STUDY 4

4. Impact of a criminal record on employment Prospects

4.1 Practical difficulties for people with criminal records

4.2 How the difficulties are addressed by the individuals

4.3 Particular difficulties faced by Indigenous people

4.4 Relationship between homelessness and employment discrimination on the basis of a criminal record

4.5 Employer reluctance to employ individuals with criminal records

4.6 Strategies to address stereotyping of people with criminal records

Recommendation

Recommendation

5. Legal Framework

5.1 Legal limits on criminal records checks

5.2 The purpose of anti-discrimination laws

5.3 Existing prohibitions on employment discrimination on the ground of criminal record

Federal discrimination laws prohibiting discrimination

State and territory discrimination laws

Spent convictions legislation

5.4 Improving protection against discrimination

5.5 What does 'criminal record' encompass?

5.6 When might a criminal record be relevant to employment?

5.7 Difficulties in using anti-discrimination legislation

Recommendation

Recommendation

Recommendation

Recommendation

Recommendation

Recommendation

Recommendation

Recommendation

6. Conclusions

7. Bibliography

DISCRIMINATION IN EMPLOYMENT ON THE
BASIS OF CRIMINAL RECORD