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HREOC Report No. 19

Reports of inquiries into
complaints of discrimination in employment on the basis of criminal record

HREOC Report No. 19

Mr Mark Hall v NSW Thoroughbred
Racing Board


Table of Contents

1.
Introduction

2.
The Commission's jurisdiction

3.
Outline of complaint and the inquiry process

3.1 The nature
of the complaint
3.2 The inquiry process

4.
Findings and recommendations

5.
Actions taken by the respondent as a result of the findings and recommendations

APPENDIX
A

Functions of
the Human Rights and Equal Opportunity Commission

APPENDIX
B

Notice under
section 35 of the Human Rights and Equal Opportunity Commission Act
1986 (Cth)

1. The Commission's
jurisdiction

2. The parties

2.1. The complainant

2.2. The respondent

3. Summary of
the complaint

4. Relevant legal
framework

5. Conciliation

6. The inquiry
process

7. Matters in
dispute

8. Submissions

8.1 Introduction

8.2 Was the decision on the basis of criminal record?
8.3 Inherent requirements of the job

9. Findings

9.1 Whether
there was an act or practice that arose in the course of employment
or occupation
9.2 Whether there was a distinction, exclusion, or preference on
the basis of criminal record
9.3 Whether the distinction nullified or impaired equality of opportunity
in employment or occupation
9.4 Whether the distinction, exclusion or preference was based on
the inherent requirements of the job

10. Conclusion

11. Recommendations

11.1 Introduction

11.2 Recommendations regarding the payment of compensation
11.3 Assessment of uncertain damages
11.4 Mitigation
11.5 Receipt of benefits
11.6 General damages
11.7 Pre-interest compensation reflecting contingencies
11.8 Interest
11.9 Other recommendations


1. Introduction

This report to the
Attorney-General concerns an inquiry by the Human Rights and Equal Opportunity
Commission ("the Commission") into a complaint made by Mr Mark
Hall on 22 June 1999. The complaint is against the New South Wales Thoroughbred
Racing Board (the "Board") under the Human Rights and Equal
Opportunity Commission Act 1986
(Cth) (the "HREOC Act").
The complaint was made pursuant to section 32(1)(b) of the HREOC Act,
which provides for a complaint to be made in writing to the Commission
alleging that an act or practice constitutes discrimination (as defined
in section 3 of the HREOC Act).

2.
The Commission's jurisdiction

The Commission's
functions in relation to the investigation and conciliation of complaints
of discrimination and the Commission's functions in relation to reporting
on complaints with substance that have not been resolved through the process
of conciliation are outlined in Appendix A to this report.

3. Outline
of complaint and the inquiry process

3.1 The nature
of the complaint

Mr Hall's complaint
alleged discrimination in his employment and occupation on the ground
of his criminal record. That complaint arose from the Board preventing
Mr Hall from working for Ms Gai Waterhouse of Gai Waterhouse Racing Stables
as a stablehand from about 28 April 1999 and refusing to issue him with
a stablehand licence on or about 21 June 1999. Mr Hall alleged that the
reason or one of the reasons, for the Board's refusal to allow him to
continue working as a stablehand and its refusal to issue him with a licence
was his criminal record.

The complaint is
denied by the Board. In summary, the Board claims that the decision was
not made on the basis of Mr Hall's criminal record but on other grounds,
in particular Mr Hall's failure to disclose his criminal record. Alternatively,
the Board relied upon the inherent requirements exception to discrimination
(which also appears in section 3 of the HREOC Act).

3.2 The Inquiry
process

On 19 February 2001,
the President of the Commission provided to the parties a document entitled
'Report of an unconciliable complaint under the Human Rights and Equal
Opportunity Commission Act 1986'
(the "President's Report").
The President's Report contained the President's preliminary findings
in respect of whether the complainant had been discriminated against within
the terms of section 3(1) of the HREOC Act. The President formed the preliminary
view that the respondent had discriminated against the complainant within
the terms of section 3(1) on the basis of his criminal record.

After issuing the
President's Report, the President delegated the further conduct of this
inquiry to me. Pursuant to sections 33 and 27 of the HREOC Act, I invited
the parties to make further submissions orally and/or in writing. The
parties availed themselves of the opportunity to make both written and
oral submissions.

4.
Findings and recommendations

On 23 April 2002,
I issued a notice under section 35(3) of the HREOC Act (the "Notice".
A copy of the Notice appears (without the appendices, which are adequately
summarised in the Notice) as Appendix B to this report.

In summary, in the
Notice I found that Mr Hall had been discriminated against on the ground
of his criminal record and that the inherent requirements exception did
not apply.

I made the following
recommendations in relation to the payment of compensation to Mr Hall
and in relation to the prevention of a repetition of the relevant acts
and/or a continuation of the relevant practices:

1. that the Board
pay to Mr Hall the amount of $33,303.05 (plus interest to the date of
the Notice); and

2. "….that
the Board conduct a review of its processes regarding the use of criminal
records, having regard to the following matters:

  • the definition
    of discrimination in section 3 of the HREOC Act;
  • the broader human
    rights context, including relevant international law obligations such
    as those contained in article 17 of the ICCPR; and
  • the need to develop
    clear written guidelines regarding the procedures of the Board for the
    use of criminal record which reflect those matters.

That review should
have close regard to the principles outlined in this notice and my findings
regarding the acts or practices of the Board in respect of Mr Hall. The
Commission would be happy to assist the Board in that review process."

5. Actions
taken by the respondent as a result of the findings and recommendations

Under section 35(2)(e)
of the HREOC Act, the Commission is required to state in its report to
the Attorney-General whether the respondent has taken or is taking any
action as a result of its findings and recommendations.

On 23 April 2002
the Commission wrote to the respondent to seek its advice as to what action
it had taken or proposed to take as a result of the findings and recommendations.

Dr Sev Ozdowski OAM
Human Rights Commissioner
24 April 2002

Last
updated 25 September 2002.