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Police Checks - A Human Rights perspective

Rights Rights and Freedoms

Police Checks - A Human Rights Perspective

by
Graeme Innes AM

Human Rights
Commissioner
Human Rights and Equal Opportunity Commission

at the Aged and Community Services Association of NSW and ACT

Occupational Health & Safety & Human Resources
Conference

2 November 2007


Acknowledgments

I acknowledge the traditional owners of the
land on which we meet.

I'd also like to thank the Aged and Community
Services Association for inviting me to speak about police checks today.

Introduction

I suspect the average person in the street
associates police checks with high-security jobs, such as airport security, or,
on the other hand, with jobs working closely with children. However, police
checks are required for an increasing number and variety of occupations and
industries in Australia, including those providing aged and community services.

Aged and community services presents an interesting case, because the
industry covers such a wide variety of occupations, and, importantly, because
many of the services are for client groups who are vulnerable and at risk
themselves. Understandably, many employers in this industry would think twice
about employing someone who had an extensive history of violence from working,
for example, in direct contact with elderly people.

Further, in many
cases, community services are required to comply with government laws which
require police checks, such as the Working with Children checks.

There
is no doubt that protecting your clients is an overwhelming priority for those
of you in this industry. But I'd like to think that in doing so, aged and
community services can also provide fair and non-discriminatory workplaces, that
employ people according to merit.

I'd like to speak to you today about
some of the laws that exist to protect people with a criminal record from
discrimination in employment. Also, some of the complexities that exist when
trying to provide a balance between the concerns of employers, and employees or
job applicants. I'll also point out some of the work that the Human Rights
Commission (or HREOC) undertakes in this area.

Why do people with a
criminal record need protection from discrimination?

Why should we
protect the work rights of people with a criminal record? Some people would
argue that people who break the law should suffer the consequences. They argue
that difficulty in finding work is ongoing punishment for their crime. However,
that's not a valid argument, or one with which many people in the Australian
community would agree.

Firstly, it is of benefit to people with a
criminal record, and the greater community, to ensure ex-offenders are able to
support themselves financially. If people are unable to enter the workforce,
then they are deprived a key means of support, human dignity and social
reintegration, all of which are necessary to make sure that people do not repeat
their mistakes. There is a range of research which indicates that employment
reduces recidivism, and creates a more crime-free community.

Secondly,
although some may argue otherwise, it's an established principle of the
Australian criminal justice system that people who have broken the law are
punished by the law, but should not be punished beyond their sentence. That is,
you do the time and then move on. Australians relate to the idea that people
deserve a second chance. This is especially true in the case of people who
commit crimes when they are young and immature. That offence should not dog them
for the rest of their lives.

Thirdly, from an employment perspective,
people with a criminal record are a sizeable proportion of the population. If
you exclude them from employment on the basis of prejudice, you exclude an
important human resource. While there are no official figures for people with a
criminal record, every year over 30,000 adult offenders exit the prison system.
However, the numbers of people with a criminal record are actually much higher,
as many people with some kind of record have not been to prison, being punished
for minor offences through fines or community orders. Indeed, most people would
know of someone with a criminal record, even if most of these are not serious
offences. These are all potential employees, whose suitability should be checked
on an individual basis against a range of possible employment
opportunities.

Further, as Indigenous people, and people with psychiatric
and intellectual disability, are overrepresented in the prison system, they are
at a special disadvantage when criminal record checks are used to limit access
to employment. This means that various occupations, which may benefit greatly
from employing an Indigenous person or a person with a disability, lose
out.

Does the law protect people from discrimination on
the basis of criminal record?

There are some existing legal
protections for people with a criminal record. These balance the legitimate
concerns of both employers and employees.

HREOCA

At the federal level, a person can complain to HREOC of discrimination in
employment on the basis of criminal record, under the Human Rights and Equal
Opportunity Commission Act (HREOCA). HREOC can then investigate the complaint,
and attempt to conciliate between the complainant and the employer. However, if
the complaint is unable to be conciliated, our actions are limited to sending a
report to the Attorney-General for tabling in federal parliament. That is, the
discrimination is not unlawful. This is different to other grounds of
discrimination in employment for example, sex, race, disability. HREOC
complaints in this area are increasing.

Under HREOCA, when is it NOT
discrimination?

There is an exception to what constitutes discrimination in employment under
HREOCA, called the ‘inherent requirements' exception. Basically, this
means that an employer can discriminate against someone with a criminal record
if the criminal record is an inherent requirement of - or relevant to - the job.
For example, it may be an 'inherent requirement' of a job working with children
that a person does not have a record for child sexual abuse. It may also be an
inherent requirement that a financial consultant not hold a conviction for
fraud.

Example of complaint to HREOC

The burden of deciding what is relevant to the job falls on the employer.

Let me give you an Example of a complaint to HREOC. A young woman claimed she
had been discriminated against when applying for a job as a bartender at a
casino. She had declared her prior conviction for stealing two bottles of
alcohol when she was 15 years old. She was refused employment, on the basis that
the inherent requirements of the job required her to be trustworthy and of good
character.

When she complained to HREOC, it agreed with the casino that it was an
inherent requirement of the job that a barperson be of good character and
trustworthy. However, it disagreed with the casino that the young woman's
criminal record meant that she could not meet these requirements. It said that
many factors were relevant to an assessment of her character, including:

  • she was 15 when the conviction occurred;
  • the conviction was eight years old;
  • since her conviction she had held several jobs in the hospitality
    industry, including as a bar manager/waitress, which involved handling large
    amounts of money, and she had references from some of those employers.

Because her complaint was unable to be conciliated, in 2002
HREOC made a report to the federal Attorney-General, recommending that the
casino apologise to her, and not exclude her from applying again. This report,
and two other reports of individual complaints, is on our
website.

State and territory anti-discrimination laws

There
are also some legal protections at the state level. In NT and Tasmania,
discrimination in employment on the basis of criminal record is unlawful. NSW,
SA, WA, ACT, QLD and VIC do not outlaw criminal record discrimination, even in
employment.

As an example of the NT provisions, in 2005 the NT
Anti-Discrimination Commissioner ordered that the NT police allow a job
applicant to reapply for a job as a policeman, after they rejected him from
employment on the basis of a minor offence committed 27 years previously. When
he was 19, he and some friends found cartons of cigarettes in the bush. He
claims they picked them up to take to the police station, but were apprehended
on the way, and charged with the offence of ‘stolen by finding', for which
he received a 6 month, $100 good behaviour bond. Since that time, he had served
in the Royal Australian Air Force for 11 years and as a policeman in the WA
police force for six years. However, since the NT police department policy
automatically bars any applicant with a stealing offence, he was refused
employment.

In his case, the policeman was protected by the NT
anti-discrimination laws, and was permitted to reapply. However, if you want to
complain of this type of discrimination in any place other than Tasmania or the
NT, you must rely on HREOCA, which cannot provide you with an enforceable remedy
under law.

Spent conviction laws

Spent conviction laws are
also an important protection. They allow the criminal records of offenders to be
amended after a certain period of time. The idea is that the offender can wipe
the slate clean after a period of time - ten years for adult convictions, and
usually five or three years for juveniles- and move on with their lives. There
are spent convictions laws in most states and territories, and federally (only
SA and Victoria have a non-statutory scheme) but they differ considerably, which
makes it very confusing for police and ex-offenders, and employers. The laws
usually apply to certain convictions only, mostly offences with short sentences
or lesser penalties.

The laws usually mean that a person is not required
to disclose information about a spent conviction to the employer, even if asked
about it. Police are also required not to release information to an employer
about a person's spent conviction. In most schemes, if an employer does find out
about it somehow, they still cannot take it into account. However, there are
exemptions for some offences, for certain jobs, for example sex offences and
jobs working with children.

Other laws
Privacy laws and
industrial relations laws also provide some protection to people with a criminal
record, although they are limited in scope.

To be effective, all of these
legal protections need to be made more comprehensive, and more uniform. There
also needs to be a greater awareness of the existing legal protections, and
their rationale.

Employer and employee education
In December
2004, the Human Rights Commission distributed a Discussion Paper, which asked
for comments from individuals and organisations on the issue of criminal record
discrimination. This is available on our website, in the Human Rights section.
We received over 90 submissions, from private sector employers, government
departments, community and legal groups, anti-discrimination bodies, privacy
groups, and people with a criminal record themselves. One of the most important
views expressed was the need for employer education. Information was needed on
anti-discrimination laws, and other laws relevant to employing people with a
criminal record.

Employers, registration and licensing bodies, and
people with a criminal record, had only a limited understanding of
anti-discrimination, spent convictions and privacy laws, and their relevance to
employing people with criminal records. They also did not understand how police
records were issued, or what information appeared on those records.

The
confusion is not surprising, considering the complexity and interconnectedness
of law in this area, and the inconsistency of law and practice in terms of spent
convictions and police records.

Just to give you a taste, some of the
key issues we came across were:

  • Problems about disclosure - many people when asked to supply their criminal
    record do not answer honestly. This is because they fear - perhaps reasonably -
    that they will be discriminated against. However, if they get the job, and it's
    discovered that they do have a criminal record (either through a criminal record
    check with the police or other means), then they are seen as dishonest.
    Unfortunately, this means that an employer may argue that they cannot employ
    that person due to dishonesty, rather than the criminal record itself. This puts
    the applicant in a difficult position.

  • There is a lot of confusion about the spent convictions laws which are
    messy and difficult to interpret. As a result, employers often ask people to
    disclose spent convictions when they should not, and people sometimes do and do
    not reveal their spent convictions correctly.

  • For example, we've been told of several cases where a job applicant has
    denied that they have a past conviction, as they are under the misconception
    that their offence is spent, or because they are unaware that exemptions to the
    spent conviction laws apply to that particular job. When the offence comes to
    light, they are accused of providing a false statement.

  • More and more employers are asking for criminal record checks to be
    provided, which discourages people with a criminal record from even trying for
    jobs.

  • Some ex-offenders have unrealistic expectations of employers, and do not
    realise that their criminal record might have some relevance for the employer.
    They need to be informed up-front, and in a non-confrontational
    way.

  • Police checks cannot tell you everything about a person, and in some cases
    the information is incorrect.

On the Record –
Guidelines for Employers

Using the material from our Discussion Paper
in 2004, in 2005 we produced Guidelines for the prevention of discrimination in
employment on the basis of criminal record - On the Record. This aims to
provide information for employers, employment agencies, and registration and
licensing bodies, about criminal record discrimination.

In On the
Record
we came up with ten guidelines to assist employers when recruiting,
or considering a current workforce. These include

  • only asking job applicants to disclose specific criminal record information
    if certain criminal convictions have been identified as relevant to the
    job

  • making sure that applicants and employees are not asked to disclose spent
    convictions, unless exemptions to these laws apply

  • only conducting criminal record checks with the consent of the employee or
    job applicant

  • ensuring that the process is clearly communicated to job applicants in
    advertising and other information

  • ensuring privacy of information

  • assessing the relevance of a person’s criminal record on a case by
    case basis

  • making sure a job applicant, or employee, has a chance to provide further
    information if they wish

  • training staff involved in recruitment and selection in privacy and
    anti-discrimination requirements.

I have On the Record CDs and a summary document - called Key Points - with me today if you'd like a
copy. These are also available on our website.

We also produced a
pamphlet to inform people with a criminal record, as confusion about the law in
this area exists on both sides of the interview table.

Some concluding
thoughts for the aged and community services sector care

I want to
leave you with one final thought on police checks and the aged and community
services industry. Even though a particular community service may have a special
case for conducting police checks, it is important to constantly remind oneself
of the variety of criminal records - and the very particular circumstances of
each case.

During the course of On the Record, we were told of an
Indigenous man who applied for a job with a community organisation, working with
Indigenous men and boys at risk of self-harm. In every respect he was suited for
the job, except he had a past offence relating to an AVO against him by his
former wife. He claimed that no violence occurred, and that he did not attend
court for the AVO hearing as it was easier than hiring a lawyer and fighting it.
As a result, he was placed on a prohibited persons' list for certain work. He
was unaware of the list, and the consequences for his future employment of
having an AVO out against him.

Although I don't know all the
circumstances of the case, one can only wonder whether in excluding him from the
application process, the community organisation lost a valuable potential
employee. And whether he also lost the chance to find a place for himself in the
workforce helping his community.

I wonder if the risk of employing him
was as great as the potential benefit.

Thanks for the chance to speak
with you today.

See Also