|
Article Excerpt
[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 record. (20) Where the criminal history information is readily available through the media and the internet, it will not be regarded as confidential information, thus remaining outside the protection of laws relating to confidentiality. Similarly, privacy laws provide minimal constraints on the consensual collection and use of personal information, or the non-consensual collection of personal information from public sources. (21)
B Legal Principles Encouraging Employers to Make Checks
In Australian common law and statutory law, there exist laws which do not directly require employers to make criminal record checks but which nevertheless encourage employers to adopt stringent measures and recruit only those with no criminal record. The contract of employment brings with it implied duties of good faith (and arguably duties of mutual trust and confidence) between an employer and an employee. (22) These implied duties may encourage an employer to check the character and good standing of a prospective employee. (23) Perhaps, more importantly, the employment contract also contains an implied duty to reasonably ensure the safety of workers, which includes ensuring that employees are safe from the behaviour of fellow employees. (24) These duties to employees, enforceable by actions for breach of contract, may indirectly encourage the employer to adopt recruitment policies and make decisions which seek to minimise risk.
Apart from contract law, occupational health and safety laws and the law of negligence reinforce this preference for cautious recruitment and scrutiny. Employers may discharge their obligations under occupational health and safety legislation at state level and the common law of negligence by undertaking criminal record checks to take care for the safety of fellow employees, and for the safety of other persons such as contractors, customers and suppliers who may enter the employer's premises or otherwise be in contact with the employee. (25) These checks may occur more often in certain work environments, such as where employees are working together in remote or isolated areas; where they are working at night; where there are security issues; or where the employment position itself is one linked to security.
Naturally an employer wishes to protect itself and its business from the acts of its employees by ensuring that the employee is appropriately qualified, experienced and of good character. For example, an employer engaging persons in positions of significant financial responsibility will try to ensure that they are 'fit for purpose' and undertake criminal history checks. Legal responsibilities to ensure safe custody of valuable items or property to fulfil bailment, contractual and insurance obligations may also tend to encourage record checks: for example, criminal record checks may be required before employing those who will be entrusted with keys to property in the real estate business or art work in the art dealer industry.
Legal duties of referees may bring a criminal matter to light and force the employer to take this into account, if referees are attesting to the suitability of an applicant for a position, they may need to disclose any criminal record information of which they are aware to fulfil the duty owed by the referee to the prospective employer. A duty of care on referees to provide accurate information to employers about job applicants has been recognised in cases where the careless provision of incorrect information results in the loss of employment or prospective employment. (26) This duty was extended to persons vouching for others or referring them for employment in the case of Monie v Commonwealth. (27) In this case, the New South Wales Court of Appeal held that the Commonwealth Employment Service owed a duty of care to the employer, to whom it referred a prospective employee, to disclose his past criminal record and was liable for loss suffered when the employee shot and injured his employer. (28)
Principles of vicarious liability of employers for the acts of their employees may further entrench the checking of criminal records. The Full Court of the Supreme Court of South Australia in Ffrench v Sestili recently confirmed that an employer is liable for the dishonesty and fraud of an employee which occurs in the course of their employment. (29) It is not relevant whether the dishonesty or fraud was committed for the employer's or the employee's benefit. (30) In Ffrench v...
|
