DISCRIMINATION IN EMPLOYMENT ON THE
BASIS OF CRIMINAL
RECORD
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Submission No. 46 - Liquor Administration Board NSW
Submission received from: D B Armati, Chairperson
Dr Sev Ozdowski OAM
Human Rights Commissioner
Human Rights and Equal Opportunity Commission
GPO Box 5218
SYDNEY NSW 2001
Dear Dr Ozdowski
Discrimination in employment on the basis of criminal record
Thank you for your letter of 13 December 2004 inviting the Board to comment on this matter. Members of the Liquor Administration Board are Magistrates of the Licensing Court of New South Wales as well as of the Local Court of New South Wales. We are therefore familiar with the issues covered by your letter and the discussion paper.
The principal area in which we are involved which is referred to in the paper is in the granting, and transfer, of liquor licences and gaming related licences in New South Wales, where the applicant's suitability and in particular their fitness and propriety, is in issue. In this jurisdiction disclosure of criminal and prosecution history (and indeed history of breaches of any related legislation concerning liquor or gaming or registered clubs) is the obligation of an applicant for a licence. We also deal with prosecutions of and disciplinary complaints against holders of Real Estate Licences and Salesperson's Certificates.
We generally agree that criminal records can be misconstrued and that many employers need to be better educated to avoid potential discrimination. However, the question of a person's suitability to undertake particular types of work may from time to time be dependent on their ability to conduct themselves in accordance with legal principles and it is the function of the Licensing Court to determine questions of fitness and propriety usually upon objection to an application by either Police, or officers of the Department of Gaming and Racing or officers of the Department of Fair Trading. Decisions frequently involve a consideration of whether previous offending behaviour has relevance to the particular licence sought and indeed many objections are not upheld. It is certainly not the case that a criminal record is a total barrier to employment or that it is not assessed objectively.
The system appears to be fair, in that legal tests are applied by the Court, and disclosure of prior history often results in the Court being provided also with strong expressions of support for the applicant from employers and other associates. However, there is certainly the possibility that early disclosure to prospective employers of the possibility that an objection to an application could be raised, and the attendant delays which might be expected, may also inhibit employment opportunities for some people.
We agree therefore that this is an area of some regulatory difficulty and would be more than willing to discuss specific issues with you if you feel we could be of assistance in this important work.
Yours sincerely
D B Armati
Chairperson
18 February 2005