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Discriminating on the basis of criminal records: the need for reform

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We all make mistakes: often they are embarrassing or hurtful, sometimes they have more serious consequences. However, where the police and courts get involved, they can have long-lasting impact on people’s lives.

Discrimination on the ground that a person has a criminal record is widespread in Victoria, particularly in obtaining and maintaining employment. There has been a significant increase in the number of criminal record checks undertaken in Victoria: Victoria Police data shows a 6000 per cent increase in checks between 1992-93 and 2003-04. Indeed, in the employment sphere, ‘criminal record checks are fast becoming a routine part of the recruitment process’. In this context, it is increasingly concerning that laws prohibiting discrimination on the basis of a person’s irrelevant criminal record lack any real teeth.

This week's decision of the Australian Human Rights Commission has demonstrated the need for stronger laws to protect people who are trying to move on with their lives.

The case concerned ‘Mr CG’, who had been convicted for a middle range drink driving offence in 2001and a low range drink driving offence in 2008. However when Mr CG applied for a position as a Market Analyst with Railcorp in 2009 he was advised he was not offered the position on the basis of his criminal record, despite the fact he’d worked at Railcorp for eight years, he met all the selection criteria and he was the selection panel’s preferred candidate.

This post considers the impact of discrimination on the basis of irrelevant criminal records, and the need for reform.

Criminal record discrimination

Direct discrimination against individuals with a criminal record is based on stereotypes about what a criminal record means for a person’s financial capacity or ‘trustworthiness’. People with previous convictions should be considered on their merits, assessed on their strengths and weaknesses in terms of skills, knowledge, experience, reliability and any other relevant factor. However, research conducted in the UK shows that ‘employers who routinely ask for information on previous convictions as part of the recruitment process tend to use it in a blanket discriminatory way rather than to inform their assessment of the general suitability of candidates, and any risk they may present in the workplace.’

In some circumstances, a criminal record will be relevant to a job a person is seeking or the service they are trying to access. However, only where the nature of the offence indicates a real likelihood of re-offending, or where there is a genuine need for someone not to have a criminal record, should a criminal record be relevant to a person’s employment or their ability to access a service. As Hugh de Kretser, Executive Officer of the Federation of Community Legal Centres, 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. A bank could refuse to hire someone with a recent fraud or dishonesty offence, but it would be unreasonable for a supermarket to dismiss a shelf-stacker because the criminal record check revealed a drunk and disorderly conviction six years ago.

Criminal record checks are increasingly becoming a standard part of the recruitment process. Individuals with a criminal record will often selfexclude from applying for positions which require a criminal record check as they believe that the existence of a criminal record – no matter how irrelevant, minor or old - will prevent them from being fairly considered for the position. Employers will often not consider applicants with a criminal record. As this case study from a report by the Fitzroy Legal Service and Job Watch shows, even a finding of guilt with no conviction recorded, can create barriers to employment:

Rhianna was charged and found guilty on several counts of obtaining property by deception. Rhianna pleaded guilty and no conviction was recorded. She received a fine and a Community Based Order for six months to perform 70 hours of unpaid community work. When Rhianna applied for work a short time later she was requested to undergo a police check. To her surprise the check revealed the guilty verdict. She was refused employment due to her record. Not only was Rhianna shocked because she did not think that a nonconviction would be recorded on her criminal record; she was also upset because she did not feel that the charges were relevant to the job.

In other circumstances, individuals will not disclose their criminal record – either because they are not asked to when applying for the job, or because they had no conviction recorded by the court and (incorrectly) believe that it will not show up on a criminal record. Often when an employer subsequently finds out that an employee has a criminal record the employer terminates the employee’s employment regardless of how well they were performing their job, or how irrelevant or old the offence is. This case study demonstrates a typical response of an employer, following the discovery of a criminal record:

Dimitri had a history of drink driving and had even spent a short time in jail because of it. He had never been charged or found guilty of dishonesty offences. He secured employment as a cleaner in a large suburban shopping complex. After working for three weeks his employers learned of his criminal history and terminated the employment. He was told his services were no longer required because of his prison record. Dimitri was devastated, having completely run his own cleaning business in the past. He was assisted to find similar employment at an organisation that did not conduct criminal record checks.

The effects of discrimination

Discrimination can have extremely negative consequences including:

  • hindering access to employment, accommodation, goods and services;
  • increasing the likelihood of recidivism;
  • exacerbating social exclusion and stigmatisation; and
  • harmful mental and psychological effects.

Discrimination can systematically exclude people from accessing employment. The consequences of such discrimination can be particularly serious for people who have just reentered the community after a period of incarceration as those individuals often lack social networks to turn to for assistance. It has been noted that the ‘use of information about an older minor criminal conviction, which in itself is not a reliable indicator of future behaviour, can seriously disadvantage people in getting on with their lives’.

Discrimination is particularly detrimental when it prevents former offenders from securing employment. If a person cannot obtain employment because of an irrelevant criminal record, it immediately limits their other opportunities in the community. Moreover, an individual who is unable to secure gainful employment is more likely to resort to low level offences like begging and theft. Research in the United Kingdom has shown that employment can reduce re-offending by between a third to a half.

Discrimination also exacerbates social exclusion and stigmatisation of former offenders. An inability to ‘make a fresh start’, or the experience of unequal treatment when attempting to ‘go straight’ creates barriers to reintegrating into the community. The PILCH Homeless Persons’ Legal Clinic (which I managed from 2009-11) notes a respondent’s to one of their consultations said:

I felt terrible. I felt not wanted and couldn’t understand it. I thought it was unreasonable. I wasn’t going to do anything bad to anybody.

Experiencing discrimination can also have health consequences. Recent research undertaken by VicHealthhas shown that people who suffer from discrimination are also more likely to develop problems such as depression and anxiety. The report notes that there is a strong link between poor mental health and poor physical health, so the impact of mental distress from discrimination is a double burden of ill-health. The report discusses a range of responses that people can have to discrimination including suffering from depression, anxiety and anger, or engaging in self-destructive behaviour such as smoking, drinking, substance abuse or violence.

Allowing discrimination on the basis of irrelevant criminal records is unfairly punishing former offenders who have already served their debt to society.

The inadequacy of current protections

There is legislation in other states and territories that prohibits discrimination on the ground of ‘irrelevant criminal record’. In Victoria however, the Equal Opportunity Act 1995 (Vic) (EO Act) is silent on the issue of criminal record discrimination, meaning that discrimination on this basis is not prohibited.

At the Commonwealth level, legislation prohibits discrimination on a number of grounds, including criminal record.Where a potential or existing employee considers that they have been discriminated against on the basis of their criminal record, a written complaint can be made to the Australian  Human Rights Commission who has the power to investigate and conciliate the complaint. If conciliation is unsuccessful, the Commission can report the breach to the Commonwealth Attorney General who can, in turn, table a report in Federal Parliament. However, there is no power to award compensation and no enforcement power to remedy a breach – evidenced by Mr CG’s case.

All states and territories, except Victoria and South Australia, have a spent convictions scheme. Spent convictions schemes are set out in legislation and provide that after a qualifying period, convictions are permanently removed from a person’s criminal record. In most circumstances, these regimes operate such that no obligation is imposed on job applicants or employees to disclose the existence of a spent criminal record. Spent convictions also do not appear on a criminal record check.

As Victoria does not have a spent conviction scheme, the release of criminal history information is governed by the Victoria Police Information Release Policy.Victoria Police releases criminal history information on the basis of findings of guilt. This means that findings of guilt without conviction are released on a person’s criminal record in the same way as findings of guilt with conviction. This creates a situation in Victoria where unjustifiable discrimination is more likely to occur as employers will have access to information where an individual has pleaded guilty but no conviction has been recorded, or where they have been subject to a good behaviour bond without conviction.

The need for stronger protections

Adequate and effective protection from discrimination would enable people with a criminal record to access employment, accommodation and other goods and services on an equal footing with the rest of the community. Social inclusion and participation in civil, political, social, cultural and economic life can reduce and resolve marginalisation, disadvantage and poverty, all of which are causal factors and risk indicators of homelessness, unemployment and criminal activity. Including irrelevant criminal record as an attribute would have concrete benefits for affected individuals. It would:

  • establish a norm of non-discrimination against people with an irrelevant criminal record;
  • create public awareness that affected individuals should not be treated less favourably;
  • give people an avenue to complain and seek redress when they have experienced discrimination on the basis of an irrelevant criminal record;
  • impose an obligation upon the Victorian Government to respect the right to non-discrimination on the basis of irrelevant criminal record and abstain itself from discriminating on that basis; and
  • encourage the Victorian Government to take positive steps to address the special needs of affected individuals

Moreover, while Victoria has no spent convictions scheme, and Victoria Police continue to release criminal records on the basis of guilt (including records for which no conviction was recorded), anti-discrimination legislation could offer further protection to individuals who have committed offences in circumstances where a Court did not consider that a conviction should be recorded.

The inclusion of ‘irrelevant criminal record’ as a prohibited ground of discrimination would ensure that all persons are subject to the equal protection of the law and that people with criminal records can compete on a rational basis in the market for employment, accommodation and goods and services.

It is right and just that people who commit crimes should be punished, but that punishment should not prevent them from rehabilitating, reintegrating and reengaging. The cost of not addressing discrimination on the ground of criminal record for society, from both an economic and a human rights perspective, as well as for the individuals themselves, is more than can be afforded.

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