In the shadow of a criminal record: proposing a just model of criminal record employment checks.

• Jurisdiction: Australia
• Date: 01 April 2008
• Author: Naylor, Bronwyn

[Requests for criminal record checks have increased significantly in recent years as employers focus on risk avoidance in seeking employees with no criminal record. This trend has coincided with local incidents, global fears and hardening 'law and order' agendas. However, there has been no comparable attention given to the implications for the rehabilitation of former offenders, and for discrimination and privacy issues. Employment is fundamental to rehabilitation and reintegration; failure to obtain employment creates a high risk of reoffending. This article examines the role of the law in Australia in facilitating, encouraging and even compelling the making of criminal record checks; the scope of legal mechanisms (such as spent convictions and anti-discrimination regimes) which attempt to balance employer needs with those of former offenders; and the impact of complex, piecemeal and inconsistent laws on issues related to criminal record checks. A new legal framework is proposed, one which seeks to provide a more just model of using criminal record checks in the employment process.]

CONTENTS I Introduction II The Legal Framework: Permitting or Compelling Criminal Record Checks A Freedom to Make Employment Decisions Based on Criminal Record B Legal Principles Encouraging Employers to Make Checks C Mandatory Criminal Record Checks III Regimes Restricting the Use of Criminal Records A Spent Convictions Regimes B Anti-Discrimination Laws C Information Privacy Regimes IV Problems with the Existing Legal Framework and Its Operation A Equity and Fairness B Discrimination and Privacy C Rehabilitation Goals of the Criminal Justice System D Inconsistent Regimes across Jurisdictions E Quality of Information F Potential Reach of Criminal History . V Rethinking the Field A Reforms to Existing Regimes B A Model for Reform: Restricting Access to Information in Employment Decision-Making VI Conclusion INTRODUCTION

In recent years there has been an exponential increase in the disclosure of criminal history information throughout the world. In Australia, requests to CrimTrac, the national criminal record agency, increased 35 per cent from 1.7 million in 2005-06 to 2.3 million in 2006-07. (1) Moreover, requests to the Australian Federal Police in the same period rose 22 per cent from 490 000 to 600 000. (2) Over a longer period the increases are more startling: requests to the Australian Federal Police have increased sevenfold since 1997; requests to CrimTrac have increased more than sevenfold since 2000; and Victoria Police received only 3459 requests for a criminal record check in 1992-93 compared with 467 878 in 2006-07. (3) Commercial internet-based services, both local and international, have also proliferated, disseminating information scoured not only from official sources but also from newspaper reports and other public sites. (4)

The continued use of criminal history information can seriously affect the lives of individuals with criminal convictions and undermines the principle that people who have 'served their time' should be able to make a fresh start. (5) Moreover, the use of this information to exclude people from employment damages an ex-offender's prospects of rehabilitation and increases their risk of reoffending, along with all of the economic and social costs associated with recidivism. At the same time, it reduces both the potential contribution of that individual and the pool of labour and skills available to society generally. This can have a pervasive effect given that a not insignificant number of people have some form of criminal record. (6)

Research in the United Kingdom found that approximately two-thirds of employers requested information from job applicants about their criminal history, often irrespective of which position they were applying for. (7) Job advertisements in Australia can require applicants to undergo a police check and recruitment agencies can include questions about criminal history in their first telephone contact with all prospective applicants. Searches of websites also show, for example, that recruitment agencies and universities recruiting students for particular courses stipulate prerequisites for entry which generally include criminal record checks. (8)

Some of the factors explaining the increased use of criminal record checks might include fears about terrorism, organised crime, paedophilia and child abuse, as well as the impact of high profile cases in these areas. Concerns over litigation risks and community safety are also commonly cited as triggers for requiring checks. (9)

The increased demand for criminal record checks forms part of a broader preoccupation with security and the management of risk. This has the potential to seriously undermine social cohesion. The eminent sociologist Professor David Garland has warned of the potentially irreversible consequences of this development. He argues that 'the imposition of more intensive regimes of regulation, inspection and control' results in our entire civic culture becoming 'increasingly less tolerant and inclusive, increasingly less capable of trust.' (10)

It would seem that a key focus of the community and of government has been on risk minimisation and the rights of employers to use criminal history information when making employment decisions. Competing interests in the rehabilitation of past offenders have been sidelined, as have discrimination and privacy issues. To date, there has been little debate about the appropriate use of criminal record checks or about the implications of their current indiscriminate use. While there have been two national inquiries--one focusing on human rights and discriminatory aspects and the other on spent conviction regimes (11)--the issue has yet clearly to enter the broader community consciousness. This article aims to stimulate such a debate by highlighting the issues and by arguing that competing interests must be articulated and addressed.

The laws that permit or require access to criminal record information, as well as those which restrict the use of such information, are piecemeal and inconsistent across the states. This article outlines and critiques those laws and proposes reforms aimed at producing a fairer, more unified and balanced regime across Australia. The central argument is that the indiscriminate use of criminal record checks in employment may lead to negative social and economic consequences. Instead, there should be legal restrictions on releasing criminal record information to employers.

II THE LEGAL FRAMEWORK: PERMITTING OR COMPELLING CRIMINAL RECORD CHECKS

Employers may undertake criminal record checks for one or more of the following reasons:

1 employers are lawfully able to take criminal records into account in employment decisions;

2 there are legal principles operating which encourage employers to make criminal record checks; and

3 there are laws compelling employers to make checks or not to employ those with criminal records.

This Part explores the legal frameworks that permit, encourage or compel employers to undertake criminal record checks.

A Freedom to Make Employment Decisions Based on Criminal Record

The common law imposes no constraint on employers using criminal history information in making employment decisions. An employer has a wide discretion, with some exceptions, to examine and take into account a person's criminal record. It is significant to note that the law does not positively confer this particular discretion on employers; the discretion exists because it is not curtailed by law as it is part of the broader notion of freedom of contract.

The doctrine of freedom of contract confers on employers--in the absence of any legislative intervention (12)--the absolute right to decide whom that employer hires as an employee. (13) This right applies not only in terms of the qualifications and previous work experience required of applicants for the job but also with respect to their personal characteristics. (An employer so minded could, for example, decide to engage only attractive staff.) (14) Similarly, these checks on an applicant's suitability for employment may include routine criminal record checks as part of the recruitment process.

An employer is generally entitled to ask about a prospective employee's criminal history during a job interview or in a job application form. The employer can also request permission to obtain an official criminal record check or may require the employee to seek access to their own record (for example, under freedom of information legislation or via the use of a private agent) and to provide a copy of it to the employer. (15) Whilst the applicant's consent is a prerequisite in all these instances, this is unlikely to be negotiable in the context of an employment interview. (16)

There is generally no mechanism at common law in private sector employment to review the exercise of the employer's discretion whether or not to employ a particular person, or to ensure that the decision has been made according to law. There is similarly no requirement that the employer make decisions based only on relevant considerations or that the decision is itself a reasonable one. Such concepts may be applicable in the public sector if employment is pursuant to a statute, but in nearly all cases the employer's discretion remains beyond review on the merits or for its legality. (17) The only redress may be through the law of negligence in a very particular set of circumstances where an employer has relied on carelessly provided information to reject the job applicant. (18)

Whilst statutory protection is provided to employees who are unfairly dismissed on the basis of a reason which is not valid or justified, (19) there is no analogous constraint on (or review mechanisms in respect of) decisions to initially employ a person or to make their engagement conditional on whether they have a relevant (or indeed any) criminal...