HREOC Discussion Paper: Discrimination in Employment on the basis of Criminal Record
Paper at http://www.hreoc.gov.au  

Submission by the Australian Privacy Foundation
February 2005

The Australian Privacy Foundation
The Australian Privacy Foundation is the main non-governmental organisation dedicated to protecting the privacy rights of Australians. The Foundation aims to focus public attention on emerging issues which pose a threat to the freedom and privacy of Australians. The Foundation has led the fight to defend the right of individuals to control their personal information and to be free of excessive intrusions. The Foundation uses the Australian Privacy Charter as a benchmark against which laws, regulations and privacy invasive initiatives can be assessed.  For information about the Foundation and the Charter, see www.privacy.org.au 
Overview
We welcome HREOC inquiry into this important subject.  Your discussion paper throws light on the current practices of criminal record checking which have previously been opaque and uncertain.  

Criminal record checks clearly involve the use of personal information – the primary focus of privacy laws, and we are somewhat surprised that you are not conducting your inquiry jointly with the Privacy Commissioner, who routinely reports a substantial level of enquiries, and more than a few complaints (you mention six in the last year alone in Attachment C), under the Commonwealth Spent Convictions Scheme (Crimes Act Pt VIIC). 

While we do not have direct experience of individuals who have been discriminated against on the basis of criminal record, and no empirical evidence of the extent to which it is happening.  However, we do know that the law in this area is a mess, and offers inadequate protection to individuals from such discrimination.

Your discussion paper correctly points out that employers may be bound by privacy laws, but that many private sector employers are able to claim an exemption from the federal Privacy Act 1988 – either for small business (in fact most businesses in Australia) or for employee records (although the exact scope of this exemption is unclear, and is currently under review).  However, for anyone covered by privacy law, the paper fails to sufficiently emphasise the threshold collection issue of necessity and proportionality – the precise wording varies, but one underlying intention of all collection principles is that personal information should only be collected to the extent necessary for a lawful purpose.  It is arguable that knowledge of an individual’s entire (non-spent) criminal record is generally excessive for most employment purposes.  

It may be legitimate for some employers to ask specific questions about particular types of offences (eg fraud), but in our view it will rarely be necessary for them to obtain comprehensive details, or even basic knowledge of irrelevant matters.

The practice of criminal record checking, particularly for the private sector, appears to have developed without any specific authorising legislation, in response to a commercial demand.  Police forces have taken advantage of exceptions in secrecy provisions, and/or privacy laws, designed to accommodate public interest in disclosure, without any serious consideration of appropriate criteria or thresholds.

Exceptions to secrecy provisions where the individual has consented are also being abused – if applicants for jobs are routinely required to agree to a police records check this can hardly be described as meaningful consent, i.e. free and informed. 

It would be nice to think that the cost of processing requests would act as a brake on the volume of disclosures, but if it is seen as a revenue source, it may equally be a stimulus to checking, and lead police forces which have to establish checking mechanisms for statutory reasons to favour increased checking to spread and recoup the costs.

Detailed comment
Definition of criminal record

Once criminal record is defined as wider than actual convictions, the potential for harm to individuals is significantly increased.  There may be an argument for disclosure of charges, and even lesser ‘come to attention’ indicators in some specific contexts, but departures from the presumption of innocence must be exceptional, limited and based on very strong competing public interest grounds.

Spent convictions

Your attachment C to the Discussion Paper clearly sets out the complex and confused state of spent convictions provisions in different Australian jurisdictions.  The net result is that the protection that these provisions are intended to offer individuals against discrimination is substantially undermined.  Employers are left uncertain about what questions they can ask, how they can be phrased, and what exceptions apply.  Individuals affected by the provisions are left uncertain as to how they apply and could either not apply for jobs; over-disclose to be on the safe side, or unintentionally under-disclose.  None of these outcomes are desirable for individuals or in the public interest.

We submit that one of the recommendations from your inquiry should be for a rationalisation and simplification of spent convictions schemes between the different Australian jurisdictions – preferably leveling up to the best features drawn from all the schemes.

Child protection

We acknowledge and share public concern about protection of children, but we feel that the ‘working with children’ checking regimes that have developed in most states involve a disproportionate level of intrusion into the history of a very large number of individuals, many of whom have only marginal contact with children and negligible opportunity to commit offenses. It should not be necessary for applicants for positions working with children to disclose details of offences that are irrelevant to that work.  Such requirements, or mandatory checks, not only unreasonably discriminate against individuals with criminal histories, but also potentially deprive employers and the community of the talents of many entirely suitable applicants who are unwilling to put themselves through the embarrassment of such irrelevant checks.

End.

Correspondence in relation to this submission should be addressed to:
Nigel Waters, Board Member, Australian Privacy Foundation
enquiries@privacy.org.au and 02 4981 0828
Contact Details for the APF and Board Members are at:
http://www.privacy.org.au/About/Contacts.html