Are There Strong Enough Protections from Discrimination based on Criminal History?

Here at Bosscher Lawyers we are concerned not just with getting the best possible result for you at sentence but with the ongoing wellbeing of our clients following the completion of their criminal matters. That is why we take a keen interest in legislation regarding the treatment of individuals with a criminal record.

Having a criminal record is more common than you might think. Last year in Australia 490,469 people were found guilty of criminal offences.[1] It is widely acknowledged that employment plays a vital role in reintegrating people who have criminal records into society[2] and preventing reoffending by providing income, structure, discipline and self-worth[3] thus benefitting the individual, the community and the economy.[4]

However, an individual’s criminal history can be a significant barrier to securing employment, [5] particularly with an increasing number of employers conducting criminal record checks.[6] This desire to screen for criminal records suggests employers are taking an approach based on false assumptions as to a former offender’s propensity to re-offend.[7] This is particularly unfair as criminal records only provide limited information and someone reading a criminal history will rarely get the full picture.

Though criminal record checks for certain occupations are clearly in the public interest, there has been an increased use of checks “in areas where there is little or no relevance to the inherent requirements of the position, or where the nature of the criminal record is not taken into account.”[8]

Stigmatization and discrimination because of criminal history can lead to entrenched disadvantage and exclusion.[9] People who have already completed their punishment are effectively punished again due to this stigma.[10]

Screening for criminal records may also worsen discrimination experienced by groups over-represented in the criminal justice system.[11]

Bosscher lawyers strongly believe that formal protection from discrimination on the ground of criminal history is needed, but at the moment (in Queensland at least) such protection is limited.

What protections are there?

Unlike Tasmania and the Northern Territory (who have both enacted legislation preventing discrimination on the ground of irrelevant criminal record)[12] anti-discrimination legislation in most States does not prevent discrimination on the basis of a person’s criminal history.

The Australian Human Rights Commission currently has the power to hear and conciliate complaints of discrimination in the workplace[13] because of a person’s criminal record under the ‘equal opportunity in employment’ regime.[14] The Commission can conciliate complaints under this scheme but discrimination on the ground of criminal record is not unlawful[15] and if the complaint cannot be conciliated, the Commission is limited to preparing a report for the Attorney-General to table in Parliament.[16] There is no recourse available to the Federal Court of Australia or Federal Circuit Court to enforce remedies.[17]

Privacy laws may provide some protection by restricting employers’ access to criminal record information. The Privacy Act 1998 (Cth) provides for a set of information privacy principles that must be followed by Commonwealth agencies[18] and national privacy principles for the private sector.[19] However, the operation of these principles in restricting improper disclosure of criminal records is limited by the significant exceptions available[20] particularly those for information relating to employees[21] and with roughly three million record checks processed by Australia’s national criminal records agency in 2011-2012,[22] it seems current privacy protections do not appear to be reducing access to this information.

Spent conviction schemes recognise that criminal records are not accurate indicators of current or future behavior.[23]

Every Australian jurisdiction except for Victoria has a legislative spent convictions scheme.[24] These schemes only apply to older and less serious offences, meaning they offer little protection in the “critical period immediately following any criminal conviction”.[25] While generally convictions will become spent after ten years for crimes committed as an adult and five years for juvenile offending,[26] eligibility requirements vary greatly between jurisdictions.

For example, Commonwealth and Queensland schemes do not apply to convictions for which the person was sentenced to more than thirty months imprisonment,[27] the New South Wales Scheme doesn’t apply to specified sexual offences or where the individual was sentenced to more than six months imprisonment[28] and in the Australian Capital Territory convictions can only become spent on application to the Court or the Police Commissioner.[29]

I believe that stronger protections are necessary to protect people with a criminal record from discrimination. Such protections would prevent the negative impacts of discrimination and reduced employment prospects on an individual’s self-worth and rehabilitation, which in turn would benefit the community


[1] Australian Bureau of Statistics, Criminal Courts, Australia, 2011-12, ABS Catalogue No 4513.0 < http://www.abs.gov.au/ausstats/[email protected]/Products/003CF228D1191BF8CA257B11000D4F76?opendocument> at 16 April 2013.

[2] Bronwyn Naylor, ‘Living down the past: why a criminal record should not be a barrier to successful employment’ (2012) Employment Law Bulletin 115, 115.

[3] Devah Pager, ‘The Mark of a Criminal Record’ (2003) 108 (5) American Journal of Sociology 937, 939.

[4] Claire Goggin, Paul Gendreau and Glenn Gray, ‘Case needs review: employment domain’, (2000) University of New Brunswick (Centre for Criminal Justice Studies) < http://www.csc-scc.gc.ca/text/rsrch/reports/r90/r90_e.pdf> at 17 April 2013.

[5] Bronwyn Naylor, ‘Living down the past: why a criminal record should not be a barrier to successful employment’ (2012) Employment Law Bulletin 115, 115.

[6] Australia, CrimTrac Agency, CrimTrac, Annual Report 2011-12, (2012) (Doug Smith, Chief Executive Officer) < http://www.crimtrac.gov.au/documents/CT11-12_full_report.pdf> Part 3 at 17 April 2013.

[7] Moira Peterson, ‘Criminal records, spent convictions and privacy: a trans-Tasman comparison’, (2011) New Zealand Law Review 69, 70.

[8] Anti-Discrimination Commissioner of Tasmania, submission no 429, 10.

[9] Devah Pager, ‘The Mark of a Criminal Record’ (2003) 108 (5) AJS 937, 941.

[10] Devah Pager, ‘Double Jeopardy: Race, Crime, and Getting a Job’, (2005)Wisconsin Law Review 617, 617.

[11] Moira Peterson, ‘Criminal records, spent convictions and privacy: a trans-Tasman comparison’, (2011) New Zealand Law Review 69, 70.

[12] Anti-Discrimination Act 1998 (Tas); Anti-Discrimination Act (NT).

[13] Australian Human Rights Commission Act 1986 (Cth) s11, s13(1).

[14] Australian Human Rights Commission Act 1986 (Cth) Part 2, Division 4.

[15] Attorney-General’s Department, supplementary submission no 130, 4.

[16] Australia, CrimTrac Agency, CrimTrac, Annual Report 2011-12, (Doug Smith, Chief Executive Officer) < http://www.crimtrac.gov.au/documents/CT11-12_full_report.pdf> Part 3 at 17 April 2013.

[17] Australia, Department of the Attorney-General, Consolidation of Commonwealth Anti-Discrimination L

aws: Regulation Impact Statement, <http://www.ag.gov.au/Consultations/Documents/ConsolidationofCommonwealthanti-discriminationlaws/Consolidation%20of%20Commonwealth%20Anti-Discrimination%20Laws%20-%20Regulation%20Impact%20Statement.pdf> pg76 at 16 April 2013.

[18] Privacy Act 1988 (Cth) s14.

[19] Privacy Act 1988 (Cth) sch 3.

[20] Moira Peterson, ‘Criminal records, spent convictions and privacy: a trans-Tasman comparison’, (2011) New Zealand Law Review 69, 78.

[21] Privacy Act 1988 (Cth) s7B (3).

[22] Australia, CrimTrac Agency, CrimTrac, Annual Report 2011-12, (2012) (Doug Smith, Chief Executive Officer) < http://www.crimtrac.gov.au/documents/CT11-12_full_report.pdf> Part 3 at 17 April 2013.

[23] Bronwyn Naylor, Moira Paterson and Marilyn Pittard, ‘In the shadow of a criminal record: proposing a just model of criminal record employment checks’, (2008) 32 (1) Melbourne University Law Review 171, 179.

[24] Criminal Records Act 1991 (NSW); Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld); Spent Convictions Act 2009 (SA); Spent Convictions Act 1988 (WA); Spent Convictions Act 2000 (ACT); Criminal Records (Spent Convictions) Act 1992 (NT); Annulled Convictions Act 2003 (TAS); Crimes Act 1914 (Cth) Part VIIC.

[25] Moira Peterson, ‘Criminal records, spent convictions and privacy: a trans-Tasman comparison’, (2011) New Zealand Law Review 69, 83.

[26] See for example: Crimes Act 1914 (Cth) s85ZL; Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld) s3; Criminal Records Act 1991 (NSW) s9.

[27] Crimes Act 1914 (Cth) s85ZM; Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld) s3 (2).

[28] Criminal Records Act 1991 (NSW) s7.

[29] Spent Convictions Act 2000 (ACT) s6, 7.

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