Over the past 30 years, Australia’s anti-discrimination laws have expanded to provide more protection for many marginalised groups.
However, a notable exception is employment discrimination for those who have found themselves on the wrong side of the law, meaning the consequences of having a criminal record in Australia can last well beyond a person has paid his or her debt to society.
When is discrimination permissible?
It is necessary and appropriate for some employers, licensing and registration bodies to screen job applicants for their criminal record. Indeed for many jobs, such as teaching, nursing and policing, this is a legal requirement.
There are, however, many jobs where people are denied employment merely because of a stigma attached to a past conviction. This does not fall under a legitimate business interest but merely a textbook example of employment discrimination. Unlike other forms though, the Australian law currently has quite a scattergun, inconsistent approach to deterring this form of discrimination.
Access to employment is crucial to allowing the reintegration of offenders back into productive society. According to Corrective Services NSW, parolees who are employed at three months post-release are around half as likely to be reconvicted than those who are not employed by this time. This is at a time when in 2017, 41.4% of people exiting prison were reconvicted of another offence within the next 12 months.
Most states and territories do not currently have laws to prevent discrimination against those with criminal records. The exceptions are Northern Territory and Tasmania.
Under section 4 of Northern Territory’s Anti-Discrimination Act 1992, it is unlawful to discriminate against a person on the grounds of an ‘irrelevant criminal record’.
Section 37 of the Act provides an exception to this rule where the work principally involves the care, instruction or supervision of vulnerable persons, including children.
Section 50 of the Tasmanian Anti-Discrimination Act 1998 similarly prohibits discrimination on the basis of an ‘irrelevant criminal record’, and also contains a specific exception for employment which relates to the education, training or care of children.
For most Australians then, their only recourse to this discrimination is to bring their case to the Australian Human Rights Commission (AHRC), which covers employers and employees in all states and territories.
Regulation 4 of the Australian Human Rights Commission Regulations makes it clear that any distinction, exclusion or preference made on the basis of a criminal record constitutes discrimination under the Act.
Under the AHRC Act, section 3, it is not discrimination if an employer decline to employ someone on the basis of their criminal record if the person’s criminal record “means that he or she is unable to perform the inherent requirements of the job.” The AHRC Act also provides an exception for any distinction, exclusion or preference that is in connection with employment in a religious institution, as long as it is made in good faith in order to avoid injury to religious beliefs.
What are inherent requirements of the job?
The burden of deciding what is an inherent requirement of the job falls on the employer, and the AHRC will often look at the following questions:
- Does legislation require the employer to ensure that the employee meets certain requirements with regard to criminal record? For example it may be illegal to employ people with a certain criminal record in some occupations, such as working with children.
- Is a licence or registration essential to the job? Is a criminal record a barrier to obtaining such a licence or registration?
- Does the job involve one-to-one contact with children or other vulnerable people, such as the mentally ill, as employees, customers or clients?
- Does the job involve any direct responsibility for finance or items of significant value such as personal data, or intellectual property?
The employer must consider the inherent requirements of a job and not just made a broad guess that an applicant would not be appropriate.
As Hugh de Kretser, Executive Officer of the Federation of Community Legal Centres in Victoria, has explained: ‘It is perfectly legitimate for a child-care centre to ensure that no staff have relevant sex offences. But it is unreasonable for a real estate agency to refuse to hire a receptionist because she was fined $50 for using cannabis nine years ago.’
What is the character of a past offender?
For some jobs, it may be reasonable that an inherent requirement of a job is that the employee is of ‘good character’ or ‘a fit and proper person’. However, an employer cannot not just resort to stereotyping job applicants and presuming that a person’s criminal record stops them from being a person of good character.
While this all seems reasonable, there is a serious issue with the AHRC act in that, unlike an order of a tribunal or court, the employer can merely decline the recommendation made at the finalisation of proceedings.
This was on show in the case of BE v Suncorp Group Ltd  AusHRC 121, where, despite the findings of the AHRC, that Mr BE was unlawfully discriminated against. The Commission could only recommend that Suncorp pay $2,500 in compensation, and Suncorp refused to pay
This was also the case in Mr CG v State of NSW (Rail Corporation NSW)  AusHRC 48, where the Commission recommended that RailCorp pay $7,500 in compensation. RailCorp rejected the Commission’s recommendation and have refused to pay compensation.
The only real punishment then, is the fact that the employer’s response is recorded as part of the public AHRC report. This means that a company will be subject to the court of public opinion and could be looked at unfavourably if they do not pay compensation.
These companies may, however, trust that the public has minimal sympathy for criminal offenders, meaning that the entire purpose of the anti-discrimination legislation – to protect vulnerable sections of the community – remains unfulfilled.