End the unregulated, unfettered use of Australian's personal criminal records.

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At least one in five Australian's have an unspent conviction on their personal criminal record.

This petition will be sent to our Prime Minister, the Leader of the Opposition, Attorney General and Shadow attorney General.

It calls on them to:

  • recognise that a key factor in the advancement and rehabilitation of a person with a criminal conviction, is the extent to which they can contribute to our society though gainful employment. 
  • legislate to end the current situation in which employers, employees and job seekers alike are left without guidance or protections when it comes to how we manage people with a criminal record.

It notes that parliamentarians are not left without guidance or protections when it comes to their criminal records.

If you agree  that we must end the unregulated, unfettered use of Australian's personal criminal records, then please sign now.

If you need more information, then read on:

The prevalence of criminal, financial and other record checks have increased significantly in recent years as employers focus on risk avoidance in seeking employees with no criminal record or who are in “low risk” financial circumstances.

In Australia, requests to “CrimTrac”, the national criminal record agency have been increasing year on year.  In its 2015/16 annual report, the agency proudly reported to our Prime Minister that “We performed more than 4.3 million criminal history checks during 2015–16. The number of checks requested each year has consistently grown from 320,000 in 2000–01 to 2.6 million in 2007–08 and 3.9 million in 2014–15".

There are over 1,500 separate offences listed in the Australian Standard Offence Classification system.  These offences range from environmental regulation offences, to the more serious murder offences. 

Last year, 314,997 Australians were convicted of 413,894 criminal offences (These figures exclude, organisations, persons less than 10 years of age, offences that come under the authority of the AFP, roads and traffic offences).

This means that there may be up to 3.14 million Australian’s who have some kind of unspent conviction listed on their criminal record. (Actual data not publicly available).

In this country, there is no universal duty on a prospective employee to volunteer anything about his or her prior record, even if those facts are likely to affect the employer’s willingness to employ him or her.

If there is a requirement under legislation to disclose a criminal record, for example for working with children, then a job applicant must disclose their record. Otherwise, there is no absolute obligation for a job applicant to answer a question about their criminal record even when asked.

However, if an employer asks a reasonable question – for example, a specific question about a criminal history relevant to the job - an employer may be entitled to refuse to hire a person on the basis of failure to answer that reasonable question. Even so, this may still give rise to a complaint of imputed discrimination against the employer if a criminal record was irrelevant to the position.

Sometimes a job applicant thinks that there is no link between the position for which they are applying and their criminal record. In principle a person may be entitled to refuse to answer in this situation. However, in practice, it is often difficult to determine whether a particular criminal record is relevant to a particular position.

In practice, it has now become almost standard procedure for employers to ask job seekers about their criminal record and to consent to a criminal record check being undertaken through the National Crime Commission or “Crimcheck”.  It is also common practice for employer’s in the Financial Services industries to require that you authorise them to check your Credit History.

In practice, in the absence of any clear and enforceable regulations on the subject, employers, employees and job applicants alike are left to figure all of this out for themselves.

This is just too difficult and complicated a situation for most recruiters and employers to manage fairly. It is far easier for employers to simply "screen out" any job applicant's with a criminal record and reply, if they reply, to an applicant with a general message that "other applicant's were more suitably qualified".

The Human Rights Commission in Australia says:  “in practice, it is often difficult to determine whether a particular criminal record is relevant to a particular position”.

Our legislators continue to refuse to discuss, debate, legislate or regulate on this issue.

Except in the case of the very thorough Working with Children legislation and procedures, the law is almost mute on the subject.

Of course, in some professions there are clear rules and guidelines about the type of criminal record which might preclude a person from employment.  For example, our legislators know  quite clearly where they stand when it comes to their criminal convictions and have been quite active in making amendments to legislation in this area.  Federally, our constitution renders a citizen disqualified from parliament if the member “is attainted of treason, or has been convicted and is under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer”: once the sentence has been completed, you are once again eligible to be a member of parliament. 

In NSW, the Constitution Act 1902 provides that “a person is disqualified from being a member if they are convicted of an infamous crime or an offence punishable by imprisonment for life or for a term of 5 years or more”.

In this country we have an effective and constitutional law enforcement and criminal justice system in place.  It is the criminal justice system which should be the place where the perpetrators of crime are judged and sentenced and where victims obtain redress. 

Most Australians believe that “if you do the crime you serve the time”.   I agree, however I do not agree and do not believe that most Australians would agree that once a person has been tried, convicted, sentenced and completed their sentence they should be then subjected to ongoing and uncontrolled, unfettered, further judgement, conviction and sentencing by employers via the use of their personal criminal history.

If it is true, that a key factor in the advancement and rehabilitation of a person, is the extent to which they can contribute to our society though gainful employment, then the status quo cannot, must not be allowed to continue.

How many Australians have abandoned their search for work, because they live in the shadow of a “criminal record”?

How many Australians are employed and live in fear of the day when their employer decides to check all existing employees’ criminal history?

How many Australians have joined the ranks of unemployed, underemployed and casual workers, because they have a criminal record?

Answer:  We don't know.  We do know, however that at least 1 in 5 Australian's have an unspent conviction on their criminal record.  Indeed, some estimates put the figure as high as 30% of  people over the age of 15.

This situation is unfair, unjust and unacceptable for all Australians and it will only continue to worsen, if our legislators continue to do nothing.  It poses a serious risk to the community by the exclusion and marginalisation of potentially productive citizens.

We need clear policies and regulations for managing criminal history and criminal history disclosure.  This is necessary for a just model that achieves the desired balance — promoting equity and the rehabilitation of past offenders, whilst protecting legitimate and reasonable interests of employers and the community.

I ask you to sign this petition and join me in demanding that our representatives, provide all Australians with at least the same privileges they themselves enjoy by law.

I ask you to sign this petition and insist that regulations are enacted to manage criminal history and criminal history disclosure fairly.  This is necessary for a just model that achieves the appropriate balance:  A balance that promotes equity and the rehabilitation for past offenders and protects the legitimate and reasonable interests of employees, employers and the community.

Further, I ask you to sign this petition and demand that our parliamentarians legislate to protect the rights of all Australians and develop a centralised system for the selective disclosure of criminal records information, based on the disclosure of only those convictions relevant to a specific category of employment. We need a comprehensive spent records regime, to be supplemented by Australia-wide restrictions on discrimination based on criminal records.

 

Personal Disclosure:

 I am 50 years of age and have a criminal record.  I am a father of 3 and have been married for 21 years. Until 3 years ago, I had a relatively successful and prosperous career and life: in fact I have been very fortunate in life. 

I am also a recovering alcoholic.  Until 3 years ago I had been sober for over 10 years.  In 2014, I relapsed and in November of 2015 lost my job.

In December 2015 I committed a crime: Common Assault.  I presented myself to the police and pled guilty to the crime.  I threw myself on the mercy of the local court, had a criminal conviction recorded and I was sentenced to a 9 month good behaviour bond.

Since January 2017 I have been sober and am doing my best to rebuild by life and make what amends I can to my wife, children, friends and family.

Although no physical injury was done to the victim of my crime, I do not doubt that my victim suffered.  It may be that my victim continues to suffer as a result of my crime.

I believe I was sentenced fairly.  I regret my crime and I will be sorry for it until my dying day.

I have now been looking for work for 2 years.  I was recently offered a position with an organisation.  That offer was withdrawn when, on request, I disclosed to them my criminal background.   The offer was withdrawn on the basis of “transparency”, “recency”, “ the nature of the role ”and“ the seriousness of the crime”.

This petition is not about me, or my personal circumstances.  I am dealing with those in my own way.  This petition is about the system and my belief that the current situation is unacceptable: unacceptable because it is unfair and unjust.  It is unfair and unjust for all Australians, employers, employees and the unemployed alike.

References and Data Sources:

  • Australian Bureau of Statistics - Australian Offence Classification 2008.  Recorded Crime Offenders, Australia, 2016-17
  • Australian Criminal Intelligence Commission - Crimtrac Annual Report, 15/16
  • Melbourne University law Review 2008 - IN THE SHADOW OF A CRIMINAL RECORD:
  • Australian Human Rights Commission – Website:  https://www.humanrights.gov.au/publications  12.04.2018
  • Commonwealth of Australia Constitution Act - Parliament of NSW Appendix G -Qualification and Disqualification of Members of Parliament.  Website: https://www.parliament.nsw.gov.au/la/proceduralpublications


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