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Report No. 42: Mr KL v State of NSW - Report into discrimination in employment

2010

Mr KL v State of NSW (Department of Education)

Report into discrimination in
employment
on the basis of criminal record

[2010] AusHRC 42


May 2010

The Hon Robert McClelland MP
Attorney-General
Parliament
House
Canberra ACT 2600

Dear Attorney

Pursuant to s 31(b)(ii) of the Australian Human Rights Commission Act 1986 (Cth), I attach my report of an inquiry into the complaint made by Mr KL of
discrimination in employment on the basis of criminal record by the NSW
Department of Education.

I have found that the act complained of constitutes discrimination in
employment on the basis of criminal record.

By letter dated 15 April 2010 the Department provided the following response
to my notice of recommendations:

The Department does not propose to take any action with respect to the
recommendations of the President. Notwithstanding the President’s
findings, the Department, with respect, maintains its view that the refusal of
Mr KL’s application for employment in 2007 was not conduct that amounted
to discrimination within the meaning of s 3 of the Australian Human Rights
Commission Act
1986.

The Department notes that the President accepted the Department’s
characterisation of the relevant inherent requirements of the job of a teacher
in NSW Government Schools and maintains its view that, at the relevant time,
after careful consideration the nature and extent of Mr KL’s criminal
record was regarded as inconsistent with those inherent requirements.

Notwithstanding the above, the Department is prepared, in this case, to take
into account the President’s findings and to extend to Mr KL casual
approval to teach in NSW Government Schools for an initial period of 12 months.
Mr KL will nevertheless be required to undertake some administrative processes,
which all applicants must satisfy, before the casual approval can take
effect.

Yours sincerely

The Hon Catherine Branson QC
President
Australian Human Rights
Commission


Table of Contents

  • Introduction
  • PART A: Summary
  • PART B: Outline of complaint
  • PART C: Conciliation
  • PART D: Relevant legal framework
  • PART E: Findings
  • Relevant questions to be considered
  • Relevant legal principles
    • (a) International jurisprudence
    • (b) Identifying inherent requirements
    • (c) 'Based on'
    • (d) Onus
  • Application of principles to the complaint
    • (a) Inherent requirements
    • (b) Was the exclusion based on the inherent requirements
      of the job?
  • Respondent's submissions
  • Conclusion
  • PART F: Recommendations
  • Power to make recommendations
  • General recommendations
    • (a) Proposed recommendation 1
    • (b) Proposed recommendation 2
    • (c) Proposed recommendation 3
  • Compensation
    • (a) Hurt humiliation and distress
    • (b) Loss of earnings
    • (c) Loss of opportunity
  • DET's Response to the Recommendations

Introduction

  1. This is a notice of my inquiry into a complaint of discrimination in
    employment on the basis of criminal record made to the Human Rights and Equal
    Opportunity Commission (now the Australian Human Rights Commission) by Mr KL.
    The complaint is made against the State of New South Wales, Department of
    Education and Training (DET).
  2. As a result of my inquiry, I have found that Mr KL was discriminated against
    on the basis of his criminal record.
  3. This inquiry has been undertaken pursuant to s 31(b) of the Australian
    Human Rights Commission Act 1986
    (Cth) (the Act).
  4. I have directed that the complainant’s identity be protected in
    accordance with s 14(2) of the Act.

PART
A: Summary

  1. The complainant’s criminal record records convictions for offences
    from 1983 to 1992. In 1983, when Mr KL was 21 years of age, he was convicted of
    the offence of smoking Indian hemp. In 1986, he was convicted of a number of
    offences including the possession of illegal drugs (marijuana and amphetamines),
    illegal use of a motor vehicle, attempting to break, enter and steal, driving in
    a dangerous manner and resisting arrest. He was sentenced to terms of
    imprisonment for many of those offences. The maximum individual sentence was for
    two years in relation to a break and enter offence and attempting to steal a
    motor vehicle. Mr KL served a total of eight months imprisonment. In 1991 Mr KL
    was convicted of larceny (shoplifting) and failing to appear for which he
    received fines. In 1992, Mr KL was convicted of further offences involving self
    administering of a prohibited drug, dishonesty and stealing. Mr KL has no
    convictions recorded after 31 March 1992.
  2. In 2003 the complainant completed a Bachelor of Music Education. He
    completed a Graduate Diploma in Education in 2006. Later that year he applied
    for a position as a secondary teacher with DET through its graduate recruitment
    program. A criminal record check conducted by DET revealed the
    complainant’s criminal record and DET advised Mr KL that he would not be
    offered a position as a teacher based on a review of his application and record
    of convictions.
  3. The complainant sought a review of this decision. An independent reviewer
    engaged by DET recommended that Mr KL be given limited casual teacher approval
    for 12 months subject to review and that his application be reviewed, on
    request, for an extension of casual teacher approval or permanent teacher
    approval after a period of 12 months providing significant periods of casual
    teaching had been undertaken. DET subsequently confirmed the original decision
    not to offer employment to Mr KL.
  4. DET has submitted that it is an inherent requirement of the job of a teacher
    that that a person espouses the highest standards of conduct and integrity,
    demonstrates a commitment to upholding the standards expected by the community
    of teachers in NSW public schools and enhances and protects the reputation of
    DET as an employer and of public education. I do not disagree.
  5. At first blush, it may appear difficult to see how a person with the
    criminal record held by Mr KL could meet those requirements. The respondent has
    given this issue careful consideration and has decided that he cannot. After
    carefully considering all of the evidence before me, however, I have arrived at
    a different view to that of the respondent.
  6. In my view, the fact that the circumstances that led to the
    complainant’s period of offending no longer exist, the changes that he has
    made to his life since that period of offending, the steps he has taken to
    become an effective member of the community and the length of the period of not
    offending further (approximately 15 years between the time of his last
    conviction and the respondent’s decision not to offer him employment) are
    highly persuasive factors in my consideration of this issue. It is difficult to
    imagine what additional steps Mr KL could have taken over this period of time
    that would strengthen the evidence of his rehabilitation, his commitment to
    making a contribution to society and to the education system. It is also
    difficult to accept that the evidence of Mr KL’s rehabilitation would be
    appreciably strengthened were the period of time since his last offence to be,
    say, 20 or 25 years rather than 15 years. I do not accept that a person with Mr
    KL’s criminal record is necessarily rendered incapable forever of
    fulfilling the inherent requirements of the job of a teacher.
  7. I have recommended that the State of New South Wales, or DET, pay the
    complainant $38 500 in compensation. I have arrived at this figure as
    follows:

    • $12 000 for hurt, humiliation and distress;
    • $19 000 for loss of earnings and
    • $7500 for loss of opportunity.

PART
B: Outline of complaint

  1. Mr KL made his complaint to the Commission on 18 July 2007. DET provided a
    detailed response to that complaint.
  2. On the basis of Mr KL’s complaint and the response from DET, it
    appears that the factual matters in this complaint are not in dispute. Those
    facts may be summarised as follows.
  3. The complainant completed a Bachelor of Music Education in 2003 and a
    Graduate Diploma in Education in 2006. In July 2006, he applied for a position
    as a secondary music teacher with DET through its graduate recruitment program.
  4. DET carries out criminal record checks for all prospective employees who are
    seeking a teaching position. Mr KL’s criminal record revealed that he was
    convicted of a number of offences from October 1983 to February 1992. In 1986,
    Mr KL was sentenced to terms of imprisonment ranging from nine months to two
    years and served a term of imprisonment of eight months.
  5. On 29 September 2006, DET advised Mr KL that he was unsuccessful in
    obtaining employment and that this decision was reached after a review of his
    application and record of convictions.
  6. Mr KL sought review of this decision by letter dated 20 December 2006 and
    his application for employment was reviewed by Mr Warren Fahey, an independent
    reviewer engaged by DET.
  7. In a report dated 15 February 2007 (the independent reviewer’s
    report), the independent reviewer recommended that Mr KL be given limited casual
    teacher approval for 12 months subject to review and that his application be
    reviewed, on request, for an extension of casual teacher approval or permanent
    teacher approval after a period of 12 months providing significant periods of
    casual teaching had been undertaken.
  8. The independent reviewer’s recommendation was not accepted by DET and
    by letter dated 26 February 2007, the Director of Staffing Services confirmed
    the original decision not to employ Mr KL as a teacher. In that letter the
    Director of Staffing Services states:

    I have considered the
    information provided by Mr Fahey along with your criminal history and
    documentation provided by you in support of your appeal.

    I wish to advise I have endorsed the original decision to decline your
    application for employment as a teacher. This decision is made in view of the
    Department’s obligations to protect the reputation of the NSW government
    school system and the expectations that people employed in that system meet the
    high standards of professional and ethical behaviour.

  9. In a further letter dated 5 July 2007 the Director of Staffing Services
    confirmed the original decision not to employ Mr KL as a teacher. In that
    letter, the Director of Staffing Services states:

    I must confirm
    previous written advice provided to you on 26 February 2007 that your
    application for employment has been declined as a result of your extensive
    criminal history.

    Your application has been exhaustively reviewed via an independent process
    and by a number of the Department’s senior officers, therefore I must also
    advise that no further correspondence will be entered into regarding this
    matter.

  10. DET does not dispute that Mr KL was not offered employment because of his
    criminal record.
  11. DET does dispute, however, that this decision amounts to discrimination on
    the basis that Mr KL, in light of his criminal record, is unable to perform the
    inherent requirements of the position as a teacher.
  12. DET describe the inherent requirements of the job as a teacher as
    follows:

    • to espouse the highest standards of conduct and integrity;
    • to demonstrate a commitment to upholding the standards expected by the
      community of teachers in NSW public schools and
    • to enhance and protect the reputation of DET as an employer, and of public
      education.[1]

PART
C: Conciliation

  1. The Commission endeavoured without success to conciliate a settlement of the
    complaint.

PART
D: Relevant legal framework

  1. Part II, Division 4 of the Act confers functions on the Commission in
    relation to equal opportunity in employment in pursuance of Australia’s
    international obligations under the Discrimination (Employment and Occupation)
    Convention 1958 (ILO 111).
  2. ILO 111 prohibits discrimination in employment on the grounds of race,
    colour, sex, religion, political opinion, national extraction or social origin
    and other grounds specified by ratifying States.
  3. Section 3(1) of the Act defines discrimination for the purposes of
    s 31(b) as:

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

    (b) any other distinction, exclusion or preference that:

    (i) has the effect of nullifying or impairing equality of opportunity or
    treatment in employment or occupation; and

    (ii) has been declared by the regulations to constitute discrimination for
    the purposes of this HREOC Act;

    but does not include any distinction, exclusion or preference:

    (c) in respect of a particular job based on the inherent requirements of the
    job; or

    (d) in connection with employment as a member of the staff of an institution
    that is conducted in accordance with the doctrines, tenets, beliefs or teachings
    of a particular religion or creed, being a distinction, exclusion or preference
    made in good faith in order to avoid injury to the religious susceptibilities of
    adherents of that religion or that creed.

  4. Australia has declared criminal record as a ground of discrimination for the
    purposes of the Act.[2]

PART
E: Findings

Relevant
questions to be considered

  1. In deciding whether an act or practice complained of constitutes
    discrimination for the purposes of s 31(b) of the Act, I am required to consider
    the following questions:

    • Whether there was an act or practice within the meaning of s 30(1) of
      the Act;
    • Whether that act or practice involved a distinction, exclusion or preference
      that was made on the basis of the complainant’s criminal record;
    • Whether that distinction, exclusion or preference had the effect of
      nullifying or impairing equality of opportunity or treatment in employment or
      occupation and
    • Whether that distinction, exclusion, or preference was based on the inherent
      requirements of the job.
  2. The first three questions may be dealt with briefly as follows.
  3. I consider that DET’s refusal to offer employment to Mr KL on 29
    September 2006 and 26 February 2007 were acts within the meaning of s 30(1) of
    the Act.
  4. I also consider that these acts involved distinctions, exclusions or
    preferences that were made on the basis of Mr KL’s criminal record.
  5. The decision to not offer employment to Mr KL because of his criminal record
    constitutes an impairment of his equality of opportunity in employment.
  6. The central dispute between the parties is whether Mr KL can perform the
    inherent requirements of the job.

Relevant
legal principles

(a) International
jurisprudence

  1. As outlined earlier, a distinction, exclusion or preference in respect of a
    particular job will not amount to ‘discrimination’ under s 3(1) of
    the Act if the distinction etc is based on the inherent requirements of the job.
    This exclusion reproduced, in substance, art 1(2) of ILO 111. The Act was
    ‘introduced to be the vehicle by which Australia's obligations under [ILO
    111] are implemented’.[3] As
    such, paragraph (c) should be construed in accordance with the construction
    given in international law to art 1(2) of ILO
    111.[4]
  2. The Governing Body of the International Labour Organisation (ILO) created a
    committee known as the Committee of Experts on the Application of Conventions
    and Recommendations (the Committee of Experts). It is ‘orthodox’ to
    rely upon the expressions of opinion of the Committee of Experts for the
    purposes of interpreting ILO 111.[5]
  3. The meaning of art 1(2) was discussed in Chapter 3 of the Committee of
    Experts’ Special Survey on Equality in Employment and Occupation
    1996
    :

    A qualification may be brought to bear as an inherent
    requirement without coming into conflict with the principle of equality of
    opportunity and treatment. In no circumstances, however, may the same
    qualification be required for an entire sector of activity. Systematic
    application of requirements involving one or more grounds of discrimination
    envisaged by Convention 111 is inadmissible; careful examination of each
    individual case is required.

  4. Similarly, in an ILO Commission of Inquiry regarding a complaint made
    against the Federal Republic of Germany, it was stated:

    It needs to
    be borne in mind that Article 2, para 1, [of the Convention] is an exception
    clause. It should therefore be interpreted strictly, so as not to result in
    undue limitation of the protection which the Convention is intended to
    provide.[6]

(b) Identifying
inherent requirements

  1. In Qantas Airways v
    Christie
    ,[7] the High Court
    considered the meaning of the term ‘inherent requirements of the
    particular position’ in s 170DF(2) of the Industrial Relations Act
    1988
    (Cth). Brennan CJ stated:

    The question whether a
    requirement is inherent in a position must be answered by reference not only to
    the terms of the employment contract but also by reference to the function which
    the employee performs as part of the employer’s undertaking and, except
    where the employer’s undertaking is organised on a basis which
    impermissibly discriminates against the employee, by reference to that
    organisation.[8]

  2. In addition, Gaudron J stated:

    It is correct to say, as did Gray
    J in the Full Court, that an inherent requirement is something that is essential
    to the position. And certainly, an employer cannot create an inherent
    requirement for the purposes of s 170DF(2) by stipulating for something that is
    not essential or, even, by stipulating for qualifications or skills which are
    disproportionately high when related to the work to be
    done.[9]

  3. Justice Gummow noted that the term ‘inherent’ suggests ‘an
    essential element of that spoken of rather than something incidental or
    accidental’.[10]
  4. Similarly, in X v The
    Commonwealth
    ,[11] Gummow and
    Hayne JJ stated that the inherent requirements of employment are those which are
    ‘characteristic or essential requirements of the employment as opposed to
    those requirements that might be described as
    peripheral’.[12]

(c) ‘Based
on’

  1. In Commonwealth v Human Rights and Equal Opportunity Commission and
    Others
    ,[13] Wilcox J interpreted
    the phrase ‘based on’ as follows:

    In the present case,
    there are policy reasons for requiring a tight correlation between the inherent
    requirements of the job and the relevant ‘distinction’,
    ‘exclusion’ or ‘preference’. Otherwise, as Mr O'Gorman
    pointed out, the object of the legislation would readily be defeated. A major
    objective of anti-discrimination legislation is to prevent people being
    stereo-typed; that is, judged not according to their individual merits but by
    reference to a general or common characteristic of people of their race, gender,
    age etc, as the case may be. If the words ‘based on’ are so
    interpreted that it is sufficient to find a link between the restriction and the
    stereo-type, as distinct from the individual, the legislation will have the
    effect of perpetuating the very process it was designed to bring to an
    end.[14]

  2. The Full Court affirmed that approach in Commonwealth v
    Bradley
    [15] (Bradley). In
    particular, Black CJ discussed the phrase ‘based on’ as follows:

    Respect for human rights and the ideal of equality –
    including equality of opportunity in employment – requires that every
    person be treated according to his or her individual merit and not by reference
    to stereotypes ascribed by virtue of membership of a particular group, whether
    that group be one of gender, race, nationality or age. These considerations must
    be reflected in any construction of the definition of
    ‘discrimination’ presently under consideration because, if they are
    not, and a construction is adopted that enables the ascription of negative
    stereotypes or the avoidance of individual assessment, the essential object of
    the Act to promote equality of opportunity in employment will be
    frustrated.[16]

  3. The Chief Justice then held that there must be more than a
    ‘logical’ link between the inherent requirement of the position and
    the exclusion of the applicant. Rather, his Honour held that there must be a
    ‘tight’ or ‘close’ connection:

    It is for
    this reason that I would reject the appellant's argument regarding the
    expression ‘based on’ in par (c) of the definition of
    ‘discrimination’. The essence of that argument is that ‘based
    on’ requires no more than a logical link, with the result that the
    exclusion of a category of persons from a particular job will not be
    discriminatory under the Act if a logical link can be shown between that
    exclusion and the inherent requirements of the job. In my view, to interpret par
    (c) in this way would be to defeat the Act's object of promoting equality of
    opportunity in employment by, in effect, permitting the assessment of
    persons’ suitability for a particular job on grounds other than their
    individual merit. The nebulousness of notions of ‘logic’ in this
    area makes it an inappropriate test for
    discrimination.[17]

  4. And further:

    In my view, the definition adopted by Wilcox J
    – that is, as requiring a connection that is ‘tight’ or
    ‘close’ – sits easily with the language of par (c) and
    promotes the objects of the Act by closing a path by which consideration of
    individual merit may be
    avoided.[18]

  5. I also note the decision of the Northern Territory Anti-Discrimination
    Commission in Wall v Northern Territory
    Police.
    [19] Northern Territory
    legislation prohibits discrimination on the basis of ‘irrelevant criminal
    record’.
  6. The complainant, Mr Wall, was convicted for theft when he was 19 years old
    and sentenced to a six month good behaviour bond. Twenty-five years later, he
    applied for a position as a police officer with Northern Territory Police. His
    application was rejected. One of the arguments raised by NT Police was that Mr
    Wall was unable to meet a ‘genuine occupational qualification’ of
    the position that all police recruits maintain the integrity of NT Police by
    being free of any adult criminal conviction. The Anti-Discrimination Tribunal
    rejected this submission, stating:

    The burden is on the employer to
    identify the inherent requirements of the particular position and
    consider their application to the specific employee before the inherent
    requirements exception may be invoked. There must be a ‘tight
    correlation’ between the inherent requirements of the particular job and
    an individual’s criminal record and there must be more than a
    ‘logical link’ between the job and a criminal record.

    I am not satisfied however that the occupational qualification required of
    recruits by police is sufficiently ‘genuine’ to qualify as an
    exemption under s 35. This is because the Respondent has not demonstrated a
    ‘tight correlation’ between the purported inherent integrity
    requirement and the Complainant’s spent criminal
    record.[20] (original emphasis,
    references omitted)

  7. And further:

    It is not possible to adequately assess the
    integrity and honesty, or lack thereof, of a candidate without considering a
    whole range of factors and characteristics ... – not just criminal history
    (spent or otherwise).[21]

(d) Onus

  1. Finally, I note that it is for the respondent to satisfy me that the
    distinction, exclusion or preference was based on the inherent requirements of
    the job.[22]
  2. Accordingly, DET must satisfy me that there is a sufficiently tight
    connection between the inherent requirements of the job and the exclusion of the
    complainant in the circumstances of this case.

Application
of principles to the complaint

(a) Inherent
requirements

  1. As noted earlier, DET asserted that the inherent requirements of the
    teaching position that Mr KL applied for are:

    • to espouse the highest standards of conduct and integrity;
    • to demonstrate a commitment to upholding the standards expected by the
      community of teachers in NSW public schools and
    • to enhance and protect the reputation of DET as an employer, and of public
      education.
  2. I accept that these do amount to inherent requirements of the job of a
    teacher given the role and responsibilities of teachers particularly in relation
    to the students under their care.

(b) Was
the exclusion based on the inherent requirements of the job?

  1. DET formed the view that, having regard to the nature and history of the
    complainant’s convictions, he is not able to meet the inherent
    requirements as outlined above. The submission made by DET
    states:

    Mr KL has an extensive criminal history involving offences
    committed between 1983 and 1992 relating to illegal drugs, theft and misuse of
    motor vehicle and matters involving fraudulent misrepresentation.

    Mr KL’s application for employment was declined by the Department
    because, in the Department’s view, the nature and number of offences and
    the court outcomes call into question Mr KL’s capacity to meet the
    relevant inherent requirements of the
    position.[23]

  2. In accordance with Bradley, the issue for consideration is whether
    there is a tight or close connection between the inherent requirements of the
    job of a teacher as set out above and the refusal to offer Mr KL employment. The
    respondent agrees that this is the correct
    analysis.[24]
  3. The following matters are relevant to this issue.

(i) Nature
of criminal record including custodial sentence

  1. Mr KL’s criminal record records convictions for offences from 1983 to
    1992.
  2. In summary:
    • Mr KL was convicted of one offence in 1983 (smoking Indian hemp) when he was
      21 years of age.
    • He was then convicted of a number of offences in 1986 including the
      possession of illegal drugs (marijuana and amphetamines), illegal use of a motor
      vehicle, attempting to break, enter and steal, driving in a dangerous manner and
      resisting arrest. He was sentenced to terms of imprisonment for many of those
      offences. The maximum individual sentence was two years for a break and enter
      offence and attempting to steal a motor vehicle. According to Mr KL, he served a
      total of eight months imprisonment for these offences.
    • Mr KL was then convicted of two more offences in 1991 (larceny (shoplifting)
      and failing to appear) for which he received fines. He was then convicted of
      further offences in 1992 involving self administering of a prohibited drug,
      dishonesty and stealing. The last convictions are dated 31 March 1992.
  3. In relation to his criminal record, DET state as follows:

    His
    application for employment as a teacher was declined following consideration of
    the nature and number of offences, the penalties imposed by the court, including
    the terms of imprisonment imposed and served. An additional factor in the
    assessment of Mr KL’s particular criminal record is that following his
    release from prison in 1986/87 he was charged and convicted of 7 further
    offences involving larceny (shoplifting), illegal drugs (marijuana and
    amphetamines), dishonesty matters and stealing. In the Department’s view,
    the above matters mean that Mr KL is unable to perform the inherent requirements
    of the position of teacher.[25]

(ii) Circumstances
surrounding offending

  1. The background to the period of Mr KL’s offending is set out in a
    letter from him to the Coordinator of Teacher Recruitment Programs and in the
    independent reviewer’s report. This includes Mr KL’s abuse of
    alcohol and drugs at that time and his involvement with other people who shared
    these pastimes at his then place of employment.

(iii) Time
since convictions

  1. No convictions are recorded for Mr KL since 1992. Approximately 15 years had
    therefore elapsed between the time of his last conviction and the
    respondent’s refusal to offer him employment as a teacher.

(iv) Conduct
since period of offending

  1. The complainant claims that he stopped consuming alcohol in 1990 and was
    determined to turn his life around. He became self-employed and worked part time
    whilst completing his tertiary education. He claims that he is now a responsible
    adult and single parent and attends his local Baptist church every Sunday.
  2. According to the information provided by Mr KL to the independent
    assessor:

    • His period of imprisonment in 1986/1987 helped him ‘find out who he
      was’.
    • In 1988 Mr KL underwent a detoxification program at a specialised Clinic for
      four months.
    • It was not until he stopped drinking that Mr KL realised he had a future. Mr
      KL said that he had seen a future when first employed at the State Rail
      Authority (SRA) but that this was shattered when he was released from prison in
      1987 and was not re-employed by SRA.
    • He attends AA meetings and has not consumed alcohol since 1990.
    • Up until around 1991 Mr KL received unemployment benefits.
    • In 1992 he regained his driver’s licence, purchased a vehicle and,
      until April 2006, was self-employed as a courier driver.
    • From 2000-2003 he studied at the Australian Institute of Music and graduated
      with a Bachelor of Music Education.
    • In 2006 Mr KL obtained a Graduate Diploma in Education from the University
      of New England.
    • During all of his tertiary study Mr KL worked part-time as a courier in
      order to meet his mortgage and other living expenses.
    • Mr KL is now has sole parental responsibility for his young
      daughter.[26]
  3. This description of the changes that Mr KL has made to his life is also
    supported by a number of people who provided character references for Mr KL,
    including:

    • The Senior Pastor of Mr KL’s local Baptist Church. The Senior Pastor
      has known the complainant since 2006 and describes Mr KL’s active
      involvement in church activities.
    • The Manger of a therapeutic community for drug affected men. The Manager has
      known Mr KL since 1993 and became his sponsor/teacher in 1995 in relation to his
      recovery from alcohol abuse. The Manager states that Mr KL has been sober and
      drug free since he has known him and leads a completely different life to that
      which preceded his recovery.
    • A member of the local Salvation Army. She has known Mr KL for over 16 years
      and attests to his change from a young man with self-esteem and other problems
      into an exemplary person.
    • A family friend. He has known Mr KL for 12 months and is a fellow church
      attendee at the local Baptist Church.
    • A Drug and Alcohol Counselor for the South Western Area Health Service. She
      has known Mr KL for 16 years and notes that she has watched him grow and develop
      his character. She also states that he has been attending Alcoholics Anonymous
      on a regular basis and has been sober for many years.

(v) Recommendation
of independent reviewer

  1. In his report dated 15 February 2007 prepared for DET, Mr Fahey set out in
    detail his review of Mr KL’s application for employment and the matters
    that he took into account. He concluded that:
  • Mr KL is possessed of the requisite knowledge, skills and experience to
    satisfactorily perform the full range of duties as a teacher with assistance
    during his probationary year.
  • Mr KL’s explanations for his past participation and involvement in
    criminal activity were very credible. His referees attest to his positive life
    as a Christian, to his generosity in helping others, to his long term sobriety
    and his dedication to and support of his family.
  • Based on Mr KL’s conduct of the past 15 years, as evidenced by a clear
    criminal record and positive written character references, he is possessed of
    sufficient moral integrity and rectitude of character as to permit him to be
    safely accredited as a government school teacher in a casual capacity.
  • Mr KL should be deemed a fit and proper person to be employed in a limited
    casual teaching capacity in the Education Teaching Service.
  • Mr KL deserves a chance to demonstrate that he would be a fit and proper
    person to be employed in a permanent capacity in the Education Teaching Service
    following at least a 12 month period of work as a casual
    teacher.

Respondent’s
submissions

  1. DET submitted that, in arriving at its decision to refuse to offer
    employment to Mr KL, it had considered the length of time since the
    applicant’s last conviction. It had also taken into account the evidence
    concerning the changes the applicant has made to his life since that time
    including the references that attested to these
    changes.[27]
  2. In DET’s view, however, those matters had to be considered and weighed
    against the following factors:

    • Concern about community expectations being met by approving the applicant
      for employment as a teacher with such a serious criminal record and the limited
      capacity such a criminal record has to protect and enhance the integrity and
      reputation of DET as an employer.
    • The fact that the applicant re-offended subsequent to serving a term of
      imprisonment.
    • Concern as to the applicant’s capacity to meet the standards of
      conduct prescribed by DET’s Code of Conduct in the event that he were to
      be employed in the teaching service.
  3. That, in DET’s opinion, the applicant’s 15 year crime-free
    record did not mitigate the totality of his criminal history and this warranted
    continued concerns about the behaviour that led to these offences being
    committed.[28]
  4. DET submitted that the exclusion of the applicant with his particular
    circumstances, including the nature of his criminal record (convictions
    involving dishonesty and fraudulent misrepresentation, resisting arrest and drug
    related matters) and the extent of his criminal record (including the number of
    convictions and the re-offending after a period of imprisonment), was necessary
    in order to fulfil the inherent requirements of the
    job.[29]
  5. DET was of the view that it had demonstrated a sufficiently close or tight
    connection between the inherent requirements of the job of a teacher and the
    exclusion, distinction or preference applied to the applicant on the basis of
    his criminal
    record.[30]

Conclusion

  1. There is no doubt that the offences committed by the complainant were
    serious, some attracting terms of imprisonment. I have examined Mr KL’s
    criminal record and, as observed by the respondent, he was convicted over a
    number of years of a range of offences that include the possession and use of
    amphetamines, illegal use of a motor vehicle, break and enter offences,
    dishonesty offences and stealing. It is also the case that a number of offences
    were committed after the complainant had already served a term of imprisonment.
  2. Mr KL has provided an explanation of his life circumstances at the time of
    the offending. Evidence has also been placed before me of the steps Mr KL has
    taken to rehabilitate himself. I have also been provided with evidence of the
    lengthy period of time since Mr KL last offended. His referees attest, as the
    independent reviewer noted, to ‘his positive attitude to life as a
    Christian, to his generosity in helping others, to his long term sobriety and
    his dedication and support of his
    family’.[31]
  3. I have accepted that the inherent requirements of the job of a teacher are
    those as articulated by the respondent. At first blush, it may appear difficult
    to see how a person with the criminal record held by Mr KL could meet those
    requirements. The respondent has given this issue careful consideration and has
    decided that he cannot.
  4. After carefully considering all of the evidence before me, however, I have
    arrived at a different view to that of the respondent. In my view, the fact that
    the circumstances that led to Mr KL’s offending no longer exist, the
    changes that Mr KL has made to his life in the time since his period of
    offending, the steps he has taken to become an effective member of the community
    and the length of the period of not offending further are highly persuasive
    factors in my consideration of this issue. It is difficult to imagine what
    additional steps Mr KL could have taken over this period of time that would
    strengthen the evidence of his rehabilitation and his commitment to making a
    contribution to society and to the education system. It is also difficult to
    accept that the evidence of Mr KL’s rehabilitation would be appreciably
    strengthened were the period of time since his last offence to be, say, 20 or 25
    years rather than 15 years. I do not accept that a person with Mr KL’s
    criminal record is necessarily rendered incapable forever of fulfilling the
    inherent requirements of the job of a teacher.
  5. On the basis of all of the evidence and submissions provided to me, I am
    satisfied that there is no reason to conclude that Mr KL will not be able, if
    employed by the respondent, to

    • espouse the highest standards of conduct and integrity;
    • demonstrate a commitment to upholding the standards expected by the
      community of teachers in NSW public schools and
    • enhance and protect the reputation of DET as an employer, and of public
      education.
  6. In my view, DET has failed to demonstrate a sufficiently ‘tight
    correlation’ between the decision not to offer Mr KL employment and the
    inherent requirements of the job.

PART
F: Recommendations

Power
to make recommendations

  1. Where, after conducting an inquiry, the Commission finds that an act or
    practice engaged in by a respondent is inconsistent with or contrary to any
    human right, the Commission is required to serve notice on the respondent
    setting out its findings and reasons for those
    findings.[32] The Commission may
    include in the notice any recommendation for preventing a repetition of the act
    or a continuation of the
    practice.[33]
  2. The Commission may also recommend:
    • the payment of compensation to, or in respect of, a person who has suffered
      loss or damage and
    • the taking of other action to remedy or reduce the loss or damage suffered
      by a person.[34]

General
recommendations

  1. The complainant proposed three general recommendations.
  2. In my view, the respondent makes persuasive arguments about why the proposed
    recommendations should not be made.

(a) Proposed
recommendation 1

  1. The complainant submits that the respondent should not take into account
    offences older than 10 years, with the exception of offences against children as
    well as offences involving violence or dishonesty.
  2. The respondent notes that this proposed recommendation appears to relate to
    the notion of spent convictions which are dealt with under the Criminal
    Records Act 1991
    (NSW). The respondent draws attention to s 15(1) of that
    Act which excludes from the protection offered by the Act people seeking
    employment in a number of different professions. Teachers and teachers’
    aides are specifically included in this list of professions.
  3. The respondent submits that given that the usual consequences of a spent
    conviction specifically do not apply in relation to an application for
    appointment or employment as a teacher, the Commission should not make the
    recommendation sought by the complainant or any similar recommendation.
  4. I agree with the respondent’s submission and have decided not to make
    the recommendation sought by the complainant.

(b) Proposed
recommendation 2

  1. The complainant submits that the respondent should be compelled to take into
    account the character and behaviour of the individual subsequent to the
    offending behaviour.
  2. The respondent submits that DET’s ‘Guidelines for the assessment
    of information revealed when conducting probity checks for applicants and
    prospective employees in schools’ already require DET to consider the
    matters referred to by the complainant in this proposed recommendation.
  3. The respondent referred to the relevant part of those guidelines as
    follows:

    Relevant considerations for the assessment of information
    revealed by criminal records checks include:

    ...

    The period of time which has elapsed since the offence/s was/were
    committed;

    ...

    Evidence about general character and lifestyle, including changes;

    Referee comments[.]

  4. Given this, the respondent submits that the Commission should not make the
    recommendation sought by the complainant.
  5. I agree with the respondent’s submission and have decided not to make
    the recommendation sought by the complainant.

(c) Proposed
recommendation 3

  1. The complainant submits that once the respondent has complied with proposed
    recommendation 2 above, it should give detailed reasons in writing explaining
    why a person’s application has been rejected.
  2. The respondent submits that the guidelines referred to above already require
    that a person is provided with written reasons for decision if ‘the person
    is rejected for employment/appointment as a result of the risk assessment
    outcome of the information recorded in their criminal history’.
  3. The respondent therefore submits that as it already has in place a procedure
    by which unsuccessful applicants are advised, in detail, of the reasons for the
    decision to reject an application and that procedure is followed in all cases,
    the Commission should not make the recommendation sought by the
    complainant.
  4. I agree with the respondent’s submission and have decided not to make
    the recommendation sought by the complainant.

Compensation

  1. I am satisfied that Mr KL suffered loss and damage and should be
    compensated. I recommend payment to him of a sum of $38 500 as appropriate
    compensation. In assessing the sum recommended, I have taken into account the
    matters discussed below.
  2. In considering the assessment of a recommendation for compensation in cases
    of this type, the Federal Court has indicated that tort principles for the
    assessment of damages should be
    applied.[35] I am of the view that
    this is the appropriate approach to take in the present matter. As such, so far
    as is possible by a payment of compensation, the object should be to place the
    injured party in the same position as if the wrong had not
    occurred.[36]

(a) Hurt
humiliation and distress

  1. I am satisfied that Mr KL experienced feelings of hurt, humiliation and
    distress as a result of being discriminated against on the basis of his criminal
    record.
  2. Compensation for Mr KL’s hurt, humiliation and distress would, in tort
    law, be characterised as ‘non-economic loss’. There is no obvious
    monetary equivalent for such loss and courts therefore strive to achieve fair
    rather than full or perfect
    compensation.[37]
  3. In reaching an appropriate figure, I have taken into account the following
    factors:

    • Mr KL provides evidence concerning the effect that the act of the respondent
      has had on him. He describes feeling of ‘frustration and anger’ as
      well as feelings of ‘hurt, anger and humiliation’. A statutory
      declaration sworn by Mr KL’s mother in which she described her
      observations of the difficulties Mr KL experienced from November 2007 to at
      least May 2008 is consistent with Mr KL’s evidence about this issue. Mr
      KL’s mother described her son as being ‘negative, sad and angry
      gradually to the point of suffering panic and anxiety attacks’.
    • Mr KL sought counselling to help deal with these feelings. Mr KL attributes
      the need for counselling to the actions of the respondent. There is, however, no
      professional evidence to support this. Nor is there any other evidence to
      indicate that Mr KL suffers from an ongoing psychological condition.
    • Mr KL invested time and energy in seeking to rehabilitate himself in the
      years since his imprisonment and also undertook a degree that he had hoped would
      allow him to engage in a career that he is passionate about and that would allow
      him to contribute to society. Whilst the respondent has noted that it is not the
      only employer of teachers in NSW, it is clearly the largest employer of teachers
      in the State. Mr KL experienced disappointment and frustration on learning that
      he would not be considered for employment by the most significant employer of
      teachers in NSW. Mr KL has not been successful in obtaining employment as a
      teacher by another employer.
    • In reaching an appropriate figure, I have had regard to awards for general
      damages in federal discrimination cases in relation to hurt, humiliation and
      distress.[38]
  4. I consider that the global sum for compensation should include an amount in
    the order of $12 000 for hurt, humiliation and distress.

(b) Loss
of earnings

  1. Mr KL seeks a recommendation for the payment of compensation for economic
    loss for the period 15 February 2007 to 27 March 2008. The commencement date is
    based on the date that the independent reviewer, Mr Warren Fahey, provided his
    report to the respondent recommending, amongst other things, that Mr KL should
    be deemed a fit and proper person to be employed in a limited casual teaching
    capacity.
  2. I am of the view that the period of time over which Mr KL may appropriately
    seek to be compensated for economic loss is the 2007 school year. This is based
    on the recommendation made on 15 January 2007 by the independent reviewer that
    Mr KL be given limited casual teacher approval for 12 months subject to review
    and that his application be reviewed, on request, for an extension of casual
    teacher approval or permanent teacher approval after a period of 12 months
    providing significant periods of casual teaching had been undertaken.
  3. Mr KL also made his claim on the basis that he would have received three
    days per week of casual work each week during the relevant period had he been
    given approval to undertake casual teaching. I accept the respondent’s
    evidence, however, that in the 2007 school year, there were only 145 requests
    from schools for casual teachers of secondary music. According to the
    respondent, this figure relates to State wide secondary schools for which day to
    day relief was sought through the respondent’s casual direct staffing
    service. The respondent has not provided any further particularity in relation
    to this figure. I am nonetheless obliged to do the best I can with the
    information available to me.
  4. On the basis of the evidence available to me, that number of teaching days
    is the maximum that could have been available to Mr KL in 2007. It is necessary
    to reduce that number to reflect the likelihood that the complainant would not
    have been offered all of those days of casual work or could not have accepted
    them all because of their location or for some other reason. It seems to me
    reasonable to assume that many of those days were likely to have been in
    metropolitan schools. It also seems to me reasonable to assume that Mr KL could
    have accepted most jobs in or near the metropolitan area had they been offered
    to him. There was no evidence before me that that there were other casual music
    teachers with whom Mr KL would have been in competition for casual work. I am of
    the view that a figure of 55% of the 145 days is appropriate, based on the
    assumption that somewhat more than half of the 145 days would have been in or
    near the metropolitan area and allowing a small contingency for Mr KL not being
    able to accept every day that might have been offered to him.
  5. The respondent provided evidence that the correct rate of pay claimed by Mr
    KL for the 2007 school year, including relevant loadings, is $253.70 per day. I
    accept this evidence.
  6. On this basis, the sum of $19 000 represents a guide to the loss of earnings
    that it is likely that Mr KL suffered.
  7. The respondent also raised the issue of mitigation. The duty to mitigate
    appears to be accepted as applicable to awards of compensation under Australian
    discrimination legislation.[39] The
    respondent, however, bears the burden of persuasion in any controversy as to
    whether the complainant has mitigated his
    loss.[40]
  8. The respondent submits that the information provided by Mr KL concerning the
    efforts he has made to obtain employment as a teacher in the non-government
    sector were outside (either before or after) the period in which Mr KL is
    claiming loss. However, the correspondence provided by Mr KL suggests that he
    applied for positions at two different schools at some time prior to or within
    the 2007 school year given that the letters advising him that his applications
    were unsuccessful were dated 18 January 2007 and 4 April 2007 respectively.
  9. I also accept Mr KL’s evidence that during the period in question, he
    was not employed and was in receipt of a single parent payment from Centrelink
    as he had sole responsibility for the care of his young daughter.
  10. On balance, I am not satisfied the respondent has discharged the onus placed
    upon it and I am unable to be satisfied that Mr KL has failed in his duty to
    mitigate his loss.
  11. I therefore recommend an allowance in the order of $19 000 should be
    included for this head of loss.

(c) Loss
of opportunity

  1. As noted previously, the independent reviewer recommended that Mr KL be
    given limited casual teacher approval for 12 months subject to review and that
    his application be reviewed, on request, for an extension of casual teacher
    approval or permanent teacher approval after a period of 12 months providing
    significant periods of casual teaching have been undertaken.
  2. Mr KL was denied the opportunity to work as a casual teacher for the initial
    12 months recommended by the assessor. This also meant that he was denied the
    chance to be considered for longer term employment with DET depending on how the
    initial 12 months transpired. This chance was not, in my view, negligible. For
    that reason, I consider that the lost opportunity legitimately attracts
    compensation. That compensation is to be assessed on a conservative basis given
    the conditional nature of the independent reviewer’s recommendation and
    the many contingencies impacting on the nature and duration of any extended
    employment that Mr KL may have
    obtained.[41] It also seems to me
    appropriate to proceed on the basis that should Mr KL choose to make a fresh
    application for employment with DET, that application will be assessed having
    regard to my finding that the respondent has failed to demonstrate that Mr KL is
    unable to meet the inherent requirements of the job of a teacher.
  3. I consider it appropriate to include a further allowance in the order of
    $7500 to compensate for this loss of opportunity.

DET’s
Response to the Recommendations

  1. By letter dated 5 March 2010, DET was requested to advise the Commission by
    22 March 2010 whether it had taken or is taking any action as a result of my
    findings and recommendations and, if so, the nature of that action. An extension
    was subsequently granted to 16 April 2010.
  2. By letter dated 15 April 2010 DET provided the following response to my
    notice of recommendations:

    The Department does not propose to take
    any action with respect to the recommendations of the President. Notwithstanding
    the President’s findings, the Department, with respect, maintains its view
    that the refusal of Mr KL’s application for employment in 2007 was not
    conduct that amounted to discrimination within the meaning of s 3 of the Australian Human Rights Commission Act 1986.

    The Department notes that the President accepted the Department’s
    characterisation of the relevant inherent requirements of the job of a teacher
    in NSW Government Schools and maintains its view that, at the relevant time,
    after careful consideration the nature and extent of Mr KL’s criminal
    record was regarded as inconsistent with those inherent requirements.

    Notwithstanding the above, the Department is prepared, in this case, to take
    into account the President’s findings and to extend to the Complainant
    casual approval to teach in NSW Government Schools for an initial period of 12
    months. Mr KL will nevertheless be required to undertake some administrative
    processes, which all applicants must satisfy, before the casual approval can
    take effect.

  3. I report accordingly to the Attorney-General.

The Hon Catherine Branson QC
President
Australian Human Rights
Commission

May 2010


[1] Letter from Crown
Solicitor’s Office to the Commission dated 19 October 2007,
6.
[2]Australian Human Rights
Commission Regulations
1989 (Cth), reg
4(a)(iii).
[3]Commonwealth v
Bradley
(1999) 95 FCR 218, 235 [35] (Black
CJ).
[4]Commonwealth v Human
Rights & Equal Opportunity Commission and Hamilton
(2000) 180 ALR 635,
642 [31] and following.
[5] Ibid,
644 [36].
[6] (1987) 70 ILO
Official Bulletin, Ser B, Supp
1.
[7] (1998) 193 CLR
280.
[8]Qantas Airways v
Christie
(1998) 193 CLR 280,
284.
[9] Ibid,
295.
[10] Ibid,
316.
[11] (1999) 200 CLR
177.
[12] Ibid,
208.
[13] (1998) 158 ALR
468.
[14] Ibid,
482.
[15] (1999) 95 FCR
218.
[16]Commonwealth v
Bradley
(1999) 95 FCR 235,
[36].
[17] Ibid, 235-6
[37].
[18] Ibid, 237
[40].
[19] Unreported, Northern
Territory Anti-Discrimination Commission, Commissioner Fitzgerald, 22 April
2005.
[20] Ibid
[5.3.5].
[21] Ibid
[5.3.8].
[22]Commonwealth v
Human Rights & Equal Opportunity Commission and Hamilton
(2000) 180 ALR
635, 652 [61].
[23] Letter from
Crown Solicitor’s Office to Karen Toohey dated 19 October 2007,
6.
[24] Supplementary submission
of the Department of Education and Training dated 30 January 2009,
[4].
[25] Letter from Crown
Solicitor’s Office to Karen Toohey dated 19 October 2007,
3.
[26] At
7.
[27] Supplementary submission
of the Department of Education and Training dated 30 January 2009,
[13].
[28] Ibid.
[29] Ibid
[19].
[30] Ibid
[14].
[31] Independent
reviewer’s report
[58].
[32]Australian Human
Rights Commission Act 1986
(Cth), s
35(2)(a).
[33]Australian
Human Rights Commission Act 1986
(Cth), s
35(2)(b).
[34]Australian
Human Rights Commission Act 1986
(Cth), s
35(2)(c).
[35]Peacock v
Commonwealth
(2000) 104 FCR 464, 483 (Wilcox
J).
[36] See Hall v A & A
Sheiban Pty Limited
(1989) 20 FCR 217, 239 (Lockhart
J).
[37]Sharman v Evans (1977) 138 CLR 563, 589 (Gibbs and Stephen
JJ).
[38] See Australian Human
Rights Commission, Federal Discrimination Law (2009), 7.2 <http://www.austlii.edu.au/au/other/HRLRes/2009/1/7.html#Heading118>.
[39] See, for example, Cummaudo v Aerospace Technologies of Australia Pty Limited
and Anor
(1990) EOC
92-316.
[40]Medlin v State
Government Insurance Commission
(1995) 182 CLR 1. In the area of
discrimination law, see Everett v Copperart (1997) QADT
14.
[41]Sellars v Adelaide
Petroleum
(1994) 179 CLR 332.