Human Rights and Equal Opportunity Commission Website: Human Rights

DISCRIMINATION IN EMPLOYMENT ON THE
BASIS OF CRIMINAL RECORD

Click here to access:

Submission No. 30 - NSW Young Lawyers

EMPLOYMENT & INDUSTRIAL LAW COMMITTEE

Prepared by:

Amanda Harvey
William Steenson
Cinda Viranna
Matthew Robinson

SUBMISSIONS ON DISCRIMINATION IN EMPLOYMENT ON THE BASIS OF CRIMINAL RECORD

Summary

This paper addresses the complexity of discrimination law regarding the prevention of discrimination against individuals with criminal records. Its introduction (Part 1) sets the context in which the proposals for the rest of the paper are discussed, and outlines the philosophical tensions that appear to be inherent in the law.

Part 2 deals with proactive strategies for changing the levels of discrimination against people with criminal records (if this is the desired outcome), and Part 3 looks at the coherence of the law, the requirement for clear definitions regarding this area of discrimination law and some potential models to change the law (again, if this is the desired outcome).

Part 1 - Introduction

A person's criminal history is an element which may or may not directly affect a person's ability to work in a particular field, but which also by its nature may give rise to discrimination.

Preconceived notions about individuals with a criminal record mean that if a person discloses a criminal history to an employer, they will often be placed at a disadvantage. Assumptions about honesty, character, social skills, aggression and capability due to criminal background will inevitably influence a prospective employer even where the record is not one which can be deemed relevant to employment. The existence of a criminal record might lead to exclusion from pre-selection or ultimately the failure of an application by way of discrimination as a result of a Criminal record rather than unsuitability for the position due to criminal record.

The potential for discrimination to occur is compounded by the lack of definition and regulation in relation to criminal records and employment. Only a small amount of information is made available to employers to ensure applicants are afforded due process when applying for positions and are not required to disclose irrelevant criminal records.

Philosophical Basis Of the Law

This area of employment law imports philosophical tensions often apparent in the criminal law of punishment and sentencing because it incorporates aspects of:

retribution/punishment for illegal conduct;
rehabilitation of people with criminal records as a working members of society;
restitution or prevention of people with criminal records from being able to legitimise their criminal record through legal (perhaps discrimination) proceedings, or to be given other special treatment because of this record; and
protection to society from further illegal conduct.

This tension is clear in that when HREOC makes a finding of discrimination on the basis of criminal record it cannot award compensation against an employer but must report the matter to the Federal Attorney-General who then tables the report in Parliament (for example). This is not the case regarding other forms of discrimination, which, unlike criminal record discrimination, are considered to be unlawful^[1] . In this instance the law gives individuals with criminal records the right not to be discriminated against but does not allow them a remedy if their right is breached.

But the question needs to be asked - if these individuals are being given a legal right not to be discriminated against in limited circumstances, then why are they also not given a right to be compensated when discrimination is proven? Clearer policy directions on point could translate into clearer laws in this area.

Of course, the law may not be able to conclusively answer what may be eternally problematic social questions, such as how to punish those who have broken society's rules, when to punish them, and when to stop punishing them? These may be questions that can only be answered through the democratic process. For this reason it would be prudent and it certainly would be suitable for political checks to be built into the system as a reflection of the political controversy accompanying legal and policy decisions in this arena.

Part 2 - Proactive Strategies

Existing Guidelines

HREOC have made recommendations about questioning: relevance, how long ago the offence occurred, number of offences, nature and seriousness, background to the offences and whether the offence related to a persons previous employment.

It would appear that these guidelines alone are inadequate. For example suggesting that regard may be had to the number of offences leaves it open to a potential employer to exclude an applicant due to a large number of records - none of which may be relevant. These types of problems are compounded by the inclusion of charges, convictions, sentencing and court appearances in criminal records.

Education

Questions regarding criminal record are supposed to be limited to criminal records that may be relevant to the employment position. The difficulty in adequately ensuring that persons with a criminal record are not discriminated against when applying for or engaged in employment is that the mere existence of a criminal record will inevitably have a deterrent effect on the decision to employ or continue to employ the person.

There is need for proper education of employers in relation to what constitutes a criminal record, assessment of relevance to employment and the types of questions regarding a criminal record which may be asked in the interview process. Job applicants also need to be made aware of the questions they may be required to answer.

Particular attention should be given to providing training and resources for employers and employees in the assessment of criminal record and a distinction between those types of record that will be of relevance.

In educating employers, there is some argument for encouraging open dialogue about individual experiences, and how these may benefit the workplace. Ensuring that employers are made aware that some education and experiences of applicants with a criminal record will be of a benefit to the type of employment applied for. Merely having a closed question "Do you have a criminal Record" or "Have you ever been charged with a criminal offence?" does not allow the applicant to explain their experience or circumstances. This may assist in ensuring that the applicant is allowed to have a say in relation to the record.

Recommendations:

Circulars to dispel myths on criminal records, components of criminal record and information on assessing relevance.
Once established that an applicant has a criminal record, guidelines for employers in relation to discussing the circumstances surrounding the record and any experiences which may be of benefit to the workplace.

Criminal Record - Relevance

There is clearly a need for a statutory scheme to regulate the just and proper administration of criminal record information and ensure the provision of privacy. Criminal records administered by the Police Criminal Records Unit include information which may be essential for police and regulatory bodies, but which may result in discrimination if released to employers. Criminal Record checks that are not refined to history relevant to a type of employment have the power to affect seriously the life of the person investigated, with consequences for their personal, professional and community relationships, particularly where privacy of such information is not ensured.

Though some private records check providers might select relevant information, the vast majority of criminal record checks are not confined by relevance to employment. A further difficulty is that the inclusion of charges, court appearances, sentencing and convictions included in criminal records only compounds the possibility of discrimination.

There may be some strong practical considerations for allowing the concept of a "criminal record" to include more than just information of proven convictions, where, for example, it is considered that the need for protecting society far outweighs the rights of the individual involved. A good example may be where an individual is required to work with children in a position of trust. Any or all investigation or surveillance records available on an individual who is applying for such a position are likely to be relevant given the risks/consequence involved if inappropriate candidates are selected.

However, that said, a hastiness to generally broaden the concept of what a criminal record should include will undermine the operation of the legal system under which we operate which presumes that a person is innocent until proven guilty. How can a person's criminal record then include information about instances where they were investigated in relation to a particular crime but never charged or if the charge had never been proven?

Current Crimtrac and Criminal Records Checks Procedures

CrimTrac is responsible for police record checks including 'pre-employment probity checking'. As indicated in HREOC's discussion paper, this is done by searching the 'National Names Index' to determine whether the person appears on this database.

CrimTrac's systems contain a wide range of data relevant to policing in Australia. This information can include:

apprehended and domestic violence orders;
court notices/orders;
missing persons;
criminal histories;
charged persons;
persons of interest;
firearms register; and
vehicles of interest and driver information.^[2]

While all of this information is useful in a policing context, not all of it represents information that can be disclosed in an employment-related criminal record check.

CrimTrac has a strong commitment to privacy (as indicated by their website http://www.crimtrac.gov.au/privacy.htm) as indeed do Police agencies in the states and territories, who extract the specific criminal record information once a person is identified as being on the National Names Index.

The volume of criminal record checks conducted is substantial, and is increasing. CrimTrac statistics indicate there were 4.36 million enquiries in 2002/03, and that this represented an increase of almost 30% on the previous year.^[3]

This expanded use of the database is in keeping with increasing obligations on government agencies. For example, in Victoria there is a requirement for employers who host work experience students to undergo a criminal record check.^[4] The Department of Education and Training is obliged to handle the results of such checks in accordance with the State's Information Privacy Act and Public Record Act.

Given that both State and Federal agencies are governed by privacy legislation in some form, it seems that (anecdotally at least) there is not a widespread problem with wrongful disclosure of information - such as revealing the convictions of a person entitled not to disclose by virtue of the spent convictions legislation.

A more problematic issue is that of the 'relevance' of particular convictions to certain types of employment. For example, it is relatively easy to see the connection between dishonesty offences and employment in a position of financial responsibility.

However, the relevance of an assault conviction to some occupations is not always immediately apparent - although some employers may seek to suggest that requirement for contact with the public and other employees would preclude such a person being appointed. This has the potential to close off a number of fields of employment to people with a conviction of this nature.

This again goes to the philosophy of a person having 'served their time' and being allowed to get on with their life after having done so.

The Northern Territory appears to have gone some way down the path of addressing the issue of 'irrelevant' criminal record information.

The emphasis is on disclosure of relevant criminal record information, with penalties for non-disclosure of relevant information, and for the use of irrelevant information.

We contrast this with the lack of any remedy of substance, via HREOC, in those cases (albeit small in number) where the employer has been found to have been discriminated against a person on the grounds of irrelevant criminal record information. It is clear from the examples in the discussion paper that the tabling of a report in Parliament, without further sanctions to back it up, is inadequate to deal with circumstances where an employer discriminates against a person on the basis of irrelevant criminal record information.

While we believe that this should change, we are also concerned that the adoption of a system such as that in the Northern Territory would be problematic. That system, while commendable in many respects, would require an extensive education campaign if it were to be introduced on a larger scale, given the pre-conceptions that exist, especially in the workforce, in relation to persons with a criminal record.

Considering the privacy and policy concerns involved when a person's entire criminal history or record is revealed to an employer, it would be advisable to create a streamlined record check system which only allowed for relevant information to be released to an employer or to have an employer's relevant questions about a person's criminal history be answered through a single agency, such as the police. For example, an employer who requires a record check to be undertaken before deciding to employ a person could specify details of the position and the nature of the record check that they would like done on likely candidates for the position, outlining certain questions that it would like answered before choosing to employ. The employer could also be asked to give an explanation of how the check is linked to the employment. The police (or other relevant agency) could then provide responses to the employer's questions and release relevant information only.

Recommendations:

That an overarching statutory regime to vet criminal records and streamline the process for record checking for entries relevant to a particular employment type be established.
Ensuring employers are educated about maintaining privacy and destruction of any record checks within 3 months.

Juvenile Offenders

Juvenile offenders returning to society are faced with additional difficulty. Though most records are protected, the gaps in resume or reference to detention education may indicate the presence of criminal history in the recruitment process, meaning that they face considerable prejudice with a large proportion of employers.

Though there are a few programs to assist job placement, such as "Handbrake Turn", perhaps public awareness and even a starting point list of suitable apprenticeships, willing employers etc should be made available to prospective employers and former offenders as part of a bridging program.

Additional incentives (such as those available for employing mature workers or people with disabilities) payable to employers could be adopted. Though there may be some issues regarding privacy, which would have to be overcome, possibly by a network that provides anonymity for applicants, the funding could be similar to the New Apprenticeships Scheme. These funds would be utilised to support and train juveniles with a criminal record to try to alleviate the high incidence of juvenile offenders being unemployed as a result of the barriers that they face.

Recommendations:

Provision of services & information to employers in relation to training.
Development of financial assistance programs to facilitate provision of positions to former juvenile offenders.

Other Incentive Schemes

Consider providing people with a criminal record with priority eligibility to employment & training related programs ('Work for the Dole' being just one example). Further information on the program as it currently exists is available at: http://www.centrelink.gov.au/internet/internet.nsf/services/work_dole.htm

Otherwise, in many cases it may just be delaying their access to these services until a period of unemployment elapses.

Part 3: Practical Considerations and Solutions

Unlawful Discrimination on the Basis of Criminal Record - The Groundword for a Potential Model?

If the rehabilitative principles of criminal law are truly at play in this area of employment law and individuals with a criminal record are not entitled to be discriminated against in certain instances, then this should be clearly stated in the law. One such way of approaching this qualified legal right would be to expand the definition of unlawful discrimination in section 170CK of the Workplace Relations Act 1996 (the Act) to include discrimination on the basis of criminal record in specified instances, or to facilitate the use of the unfair termination provisions enshrined in paragraph 170CE(1)(a) of the Act.

Option 1:

Individuals with criminal records who feel that they have been unfairly terminated are already able to use the unfair termination provisions to make an application for unfair dismissal, as long as they fall within the jurisdiction of section 170CE of the Act. However, from the examples in the HREOC's discussion paper, "Discrimination in Employment on the Basis of Criminal Record" (the HREOC paper), it would seem that the utility of this section is minimised for people who fall into this category because they are often in the three month probationary period of their employment when their criminal record is discovered and their employment is terminated.

If it were considered desirable to expand the unfair termination provisions to take account of the difficulty that individuals with criminal records face, then one option may be to make an exemption to the probationary restriction in subsection 170CE(5B) for a defined category of individual who has been unlawfully discriminated against (this would also need to be defined) on the basis of criminal record.

Additionally (or even if the change to section 170CE is not adopted), subsection 170CG(3) could then also formulated to include a specific reference to considerations that the Commission must take into account when arbitrating a dispute based on termination because of an individual's criminal record. For example, the Commission could be asked to consider the nature of the criminal record and its content, the honesty of the individual in revealing information about the record, or whether the employer asked the employee for information regarding their criminal record. The advantage of using subsection 170CG(3) as the backdrop to considering the issue is that it considers the substantive and procedural fairness afforded to the individual concerned. A number of the examples in the HREOC paper suggest that procedural fairness is not being allowed to individuals in instances where their employment is being unfairly terminated.^[5]

Even though these are factors that the Commission is likely to consider in a relevant instance anyway, the effect of making them explicit in the legislation allows Parliament to control what is considered by the Commission to some extent, and to ensure that its policy objectives steer the law to its desired outcome. Individuals and employers involved are also likely to have a clearer understanding of their rights in this situation because the legislation would spell it out more clearly.

However, the practicality of this option is diminished by the fact that an exception would need to be made to subsection 170CE(5B) for it to be effective in targeting unwanted discrimination in the first 3 months of employment for individuals with criminal records. This change may then defeat the purpose of trying to clarify the law in this area and complicate the issue further. Consequently, the issue may be best dealt with in discrimination law (as discussed below).

Option 2:

Another option would be to expand the grounds of unlawful discrimination, like those contained in paragraph 170CK(2)(f) of the Act to include discrimination on the basis of irrelevant criminal record as a ground under which individuals who have had their employment unlawfully terminated could make an application to the Commission via section 170CE for relief.

Under the current structure of the Act, the advantage of expanding this section, as opposed to expanding the unfair termination provisions discussed above is that the jurisdiction would be wider and more effected peoples could utilise Federal law. The unfair termination provisions apply only to:

Commonwealth public sector employees;
Territory employees;
Federal award employees employed by a constitutional corporation;
Federal award employees who are waterside workers, maritime employees or flight crew officers, employed in the course of, or in relation to, trade or commerce between Australia and a place outside Australia , between the States, within a Territory, between a State and a Territory, or between two Territories;

whereas the unlawful termination provisions apply to the relationship between an employer and employee.

Further, the unlawful termination provisions do not exclude employees who are unable to make an application for unfair termination, such as those who are still on probation, or are casual employees.

However, for this option to retain some coherence, and to act as a clear indicator of the law to employers and employees, the concepts relating to what constitutes unlawful discrimination on the basis of criminal record should be defined as clearly as possible. Firstly, some concept of what constitutes a criminal record will need to be considered, as well as an outline of what makes discrimination in this area unlawful or irrelevant to the inherent requirements of a position.

These issues are discussed further in relation to the specific questions set out below.

Limitations of this Model:

Although a model, such as the one discussed in this paper may address the difficulties and complexities with the law in this area, it is important to recognise that it also comes with its limitations because it is designed to address discrimination upon termination only and does not necessarily solve the problem of how to assist effected individuals in overcoming the stigma of having a criminal record and obtaining employment in the first place. As discussed elsewhere in this submission, this issue may be more appropriately resolved through pro-active programs and steps, which target the source of the stigma itself.

Another issue is that the provisions discussed would only be relevant where termination of employment has occurred. In this respect, maintaining a credible complaints process such as through a body like HREOC could assist employers and employees alike in determining how to handle such situations. However, consideration of whether to make this type of discrimination unlawful, and hence to change HREOC's power to act where discrimination is proven, should be reconsidered if there is evidence to suggest that employers will continue to disregard HREOC's authority or findings in this regard, or if no suitable political resolution has occurred as result of the Attorney-General having tabled HREOC's findings in Parliament.

Recommendation:

That problems faced by people with criminal records in employment be addressed through discrimination law, rather than unfair or unlawful termination provisions.

What Does a Criminal Record Include? What Should a Criminal Record Include?

HREOC has outlined that what does or does not constitute a criminal record is not clear in all instances, and can include details of investigations where no charges were brought or proven, or charges were brought but not proven. Further, independent investigations or surveillance undertaken by the police may also form part of that record^[6] . This issue has been addressed more fully below.

Interestingly, the Human Rights & Equal Opportunity Commission Regulations include "criminal records" as ground of discrimination, and yet the Regulations and the HREOC Act have not defined "criminal records". We further note that the discussion paper references the Police Service Administration Act 1990 (Qld) which does not define "criminal record" for all persons in Queensland, but rather what is a criminal record for the purposes of assessing qualifications for a Queensland Police Officer. In the Northern Territory the Anti Discrimination Act (NT) is silent on a definition of "criminal record", which forms a head of discrimination, however the phrase is specifically defined in the Criminal Records (Spent Convictions) Act (NT). Conversely, New South Wales does not have any legislation defining "criminal record".

Given that the phrase "criminal record" has no specific definition Australia wide, it is difficult for a legally trained person to provide precise advice on what actions do and do not constitute discrimination on the grounds of "criminal records", let alone a 'layman' employer or employee. The insertion of a definition could be achieved by the amendment of the Regulations. We have made further comments below as to the policy considerations that may impact on the content of the definition of "criminal records".

Similarly, it is also unclear what is considered a "spent" conviction for the purposes of inclusion on a person's criminal record.^[7]

We have detailed our comments with regard to limitation of information that employers are able to access on an employee's, or prospective employee's, criminal records above. In particular we have recommended that a scheme be established to vet what information about a person's criminal record should be released to an employer and we note that this issue is beyond the control of HREOC and the terms of this paper. However, given the lack of precise & consistent regulation across the Commonwealth, States & Territories as to what degree of "criminal records" are available to employers, it is important that any right not to be discriminated against in this instance be outlined in broad terms within the HREOC Act or Regulations or in relation to any amendments that are made to the Workplace Relations Act. In particular we recommend that the coverage of the HREOC Act or an amended Workplace Relations Act specifically include pre-conviction action by relevant executive bodies. This may be done by including a broad definition of the term "criminal record" as including certain pre-conviction procedural acts, such as investigations, arrests or charges. This will ensure that both the guilty and the innocent are protected from unwanted discrimination.

However, given the comments above with regard to the limitation on the types of criminal records that may be disclosed to employers when conducting criminal record checks, in contrast to the broad definition suggested in the paragraph above, there appears to be a divergence in opinions as to whether the dichotomy of definitions is advantageous. In particular, the broad definition of criminal records, limited for the purposes of the HREOC Act or an amended Workplace Relations Act would provide greater protection to prevent discrimination towards employees, as detailed above. However, the existence of two definitions of "criminal record" under two different regulatory schemes could result in confusion and perpetuate the existing inconsistencies in definitions across the States & Territories, as well as a continuing the idea that unsubstantiated charges or investigations should constitute a part of a person's criminal record.

A simple way to overcome the problematic issue of defining "criminal record" could be by referring to discrimination based on less favourable circumstances arising from a person's "criminal history". Then if, for example, an issue arose as to whether or excessive weight was given by an employer or potential employer to a charge/investigation/conviction of someone for a particular position, this could be determined on the individual facts of the case by the relevant tribunal, and a jurisprudence would develop in the usual way as it has for all other types of prohibited discrimination. As such, the "inherent requirements" defence could be also applied in the usual way on the facts of each case.

Accordingly we recommend that HREOC carefully consider the impact of specifically defining" criminal record" having regard to balancing the protection of employees versus establishing inconsistency of definition.

Alternatively, in the absence of any legislative guidance on this issue, regulatory guidelines outlining what types of information an employer may have access to for certain positions would be useful. This could assist in outlining when it would be appropriate for an employer to have access to information about a person that has been investigated but not charged in relation to a crime.

Recommendations:

That a general legal and policy position be adopted regarding what will constitute a criminal record and in what circumstances; and
The HREOC Regulations be amended to provide the public with a precise definition of "criminal record".

When Might A Criminal Record Be Relevant to Employment? What are the Inherent Requirements of a Job?

Again in this instance there is no definitive answer as to when a criminal record is or is not relevant to a particular position. In large part this will depend on the nature of the position and the nature of the criminal record in question. It may be inevitable that an element of discretion must be built into this aspect of the law. What may be useful is to outline some legislative test or list of factors that should be considered, when this issue is being decided.

Such a test/list would firstly need to give a broad explanation of what is meant by the inherent requirements exception, perhaps by outlining firstly that consideration needs to be given to the substantive job in question and whether that job requires that the occupant should not have a criminal record of a certain type, then substantive consideration needs to be given to the nature of the employees criminal record, and lastly there needs to be a consideration of whether there is a sufficient link between the two to justify discrimination.

A more specific list could also be outlined as factors that must be taken into account, including but not necessarily limited to:

the reason for the requirement that there be no criminal record of a certain type,
the risks involved in allowing the person to work in the position,
the severity of the offence/s on record,
the length of time since the last offence/s were committed and whether the individual concerned has demonstrated good behaviour since the offence/s occurred,
whether the employer asked for disclosure of a criminal record and the individual's candour in giving this information,
the opportunity afforded by the employer to the employee to explain their criminal record.

Clear government policy may dictate that there are obvious instances where a criminal record, or part of a criminal record, is relevant to a position - again the perfect example is where the individual in question is required to work with children or in a similar position of trust.

In this instance, if the grounds of unlawful termination are expanded (as discussed above) particularly, it may be useful to articulate these instances within relevant legislation or regulations as what may be called "minimum instances" where a criminal record will always be relevant.^[8] The sensitivities and public policy issues involved with making such a decision could also be recognised in allowing the Attorney-General a power to outline other instances where a criminal record is relevant to employment by gazetting these additional requirements or by amending the regulations/law.

As discussed in the HREOC paper, the repercussions of having such an absolute policy approach to the issue could mean that individual justice is denied based on specific circumstances, and it is for this reason that the International Labour Organisation (ILO) is reluctant to discuss the notion of inherent requirements in relation to particular occupations generally^[9] . Further, this approach may in fact lead to a breach of the ILO Discrimination (Employment and Occupation) Convention 1958, because a clear decision to discriminate may be made and then codified contrary to the Convention which aims to prevent this outcome.

However, legislative guidance need not be absolute and may be in the form of legislative footnotes or examples, or, where policy objectives are strong, a "minimum instance" may be adopted in legislative form, but individuals effected by this hardline approach can be afforded the opportunity to convince the Attorney-General (or other relevant authority) of their suitability for a position^[10] .

Recommendation:

That the policy and procedural underpinnings of the inherent requirements exception be clarified through appropriate legal mechanisms.

1. p 12, HREOC article.
2. Ibid, at www.crimtrac.gov.au/operational.htm.
3. Source: CrimTrac website (http://www.crimtrac.gov.au/aboutus.htm). The 2201/02 figure was 3.7 million.
4. www.sofweb.vic.edu.au/voced/docs/whatsnew/CRCsFAQs21June.doc.
5. See the example discussed on p 32 of HREOC paper, where the individual involved was not given opportunity to explain his situation.
6. p 16, HREOC paper.
7. ibid. See also p 18.
8. Indeed, in some States, such as New South Wales and Queensland, this approach has been adopted. .
9. See page 19 HREOC paper.
10. The NSW and Queensland position in relation to criminal record checks for people working with children allows effected individuals the ability to prove that they can be trusted to work with children.