The Commission's Report into Mr KL v State of NSW (Department of Education) [here] followed a complaint to the national Human Rights &Equal Opportunity Commission (now the Australian Human Rights Commission) by 'Mr KL'. He had criminal convictions from 1983 up until 1992, for which he had spent a total of eight months in prison.
KL had no criminal convictions recorded from 1992 onwards. In 1983, aged 21, he was convicted of smoking Indian hemp. In 1986 he was convicted of offences including the possession of illegal drugs (marijuana and amphetamines), illegal use of a motor vehicle, attempting to break, enter and steal, driving in a dangerous manner and resisting arrest. He served a total of eight months. In 1991 he was convicted of larceny (shoplifting) and failing to appear, for which he received fines. A year later he was convicted of further offences involving self administering of a prohibited drug, dishonesty and stealing.
A principle in Australian law is that leopards can change their spots. Mr KL is described by the AHRC as having "rehabilitated himself and his life to the extent that he had completed a Bachelor of Music Education in 2003 and a Graduate Diploma in Education in 2006". He applied for a position as a secondary teacher in 2006 but was rejected by the Department of Education & Training following a criminal record check. The Department also rejected a recommendation made by an independent reviewer that he be given limited casual teacher approval for 12 months subject to review.
The Department has not disputed that KL was refused employment because of his criminal record. However, it disputes that the decision amounts to discrimination on the basis that Mr KL, in light of his criminal record, was unable to perform the inherent requirements of the position as a teacher.
AHRC President Catherine Branson indicated that -
As a result of my inquiry, I have found that Mr KL was discriminated against on the basis of his criminal record. The fact that the circumstances leading to Mr KL's period of offending no longer exist and the substantial changes he has made to his life since then, along with the steps he has taken to become an effective member of the community, were persuasive factors in my consideration.The AHRC has recommended that the State of New South Wales or the Department pay Mr KL $38,500 in compensation comprising amounts for hurt, humiliation and distress, loss of earnings and loss of opportunity. Under the Act that recommendation can be ignored by the state government.
It was also highly relevant to my determination that approximately 15 years have passed since Mr KL's last conviction.
The central dispute between the parties is whether Mr KL can perform the inherent requirements of the job.
I accept that being able to espouse the highest standards of conduct and integrity, and to demonstrate a commitment to upholding the standards expected by the community of teachers in NSW public schools, amount to inherent requirements of the job of a teacher.
In my view, the Department has failed to demonstrate a sufficiently 'tight correlation' between the decision not to offer Mr KL employment and the inherent requirements of the job.
It is difficult to imagine what additional steps Mr KL could have taken over this period of time that would strengthen the evidence of his rehabilitation and his commitment to making a contribution to society and to the education system.
I do not accept that a person with Mr KL's criminal record is necessarily rendered incapable forever of fulfilling the inherent requirements of the job of a teacher.
