The increased use by employers of criminal records checks is occurring within the context of a complex and uncertain legal framework. Our research explores this issue from the perspective of lawyers, their understanding of existing laws and the advice which they give their clients on both sides of the employment decision-making process. We identify uncertainty about the operation of relevant laws - spent convictions, anti-discrimination and privacy laws - and discuss law reform options.They conclude
Overall, the law reform proposal which is most likely to resolve many of the issues identified is the proposal for uniform spent conviction laws. However, whilst this is essential reform in the area, it is not sufficient. Where a record is not covered by spent conviction legislation because the ten-year time period has not passed, the record may still be taken into account by employers, even where that record is irrelevant to the job to be performed. Further, it will not offer protection to many job applicants in the states where there is not prohibited discrimination on the basis of irrelevant criminal record. Anti-discrimination legislation does not uniformly protect job applicants round the nation. Anti-discrimination laws should be amended as a matter of priority.
Whilst some of the privacy reforms outlined may assist job applicants, the issue of consent not being freely obtained (in the context of a desire to successfully obtain the job) is not addressed. More generally, human rights are increasingly becoming part of the political discourse in Australia and will have an impact on the ways in which employers can inappropriately use criminal histories to exclude ex-offenders from employment. The survey revealed that 53.1% of respondents did not advise employer clients in relation to criminal record checks at all whilst about a third (32.7%) advised their employer clients once or twice a year on this issue. It was only a small minority (14.3%) who advised clients three to ten times a year. The infrequent attention to this issue in legal practices with an employment law focus, we suggest, is not due to its lack of significance — the data on the extent of use of criminal checks suggests it is important. Rather, employers may not regard the question of using criminal records as requiring legal advice — they may assume there is a right to ask job applicants routinely for their criminal history information. By way of contrast, legal practitioners acting for employees tended to deal with this question more. Even so, more than 40% of labour law practitioners never dealt with this employee issue, suggesting that persons with a criminal record do not seek advice because they select their employment opportunities to minimise the need to expose their history to potential employers. In other words they ‘self select’ and do not place themselves in those job markets where employers will ask about their past.
The fundamental issue is that potentially valuable employees are being excluded from employment by reference to what may be an irrelevant element of their history. The case studies cited in the introduction to this article illustrate the disproportionate significance of a criminal record for an otherwise-satisfactory employee. This is inherently unfair; it also imposes unnecessary costs on employers, the state and society more broadly.
Employers may feel that they are entitled to access criminal history and related information because historically this has been accepted at common law. The unprecedented availability of such information in the Internet age, with no limit to how far back in time information can be accessed, has fed the increased demand. However the impact on society of ever-increasing numbers of excluded people must be faced. Lawyers in this study clearly reflected acceptance of (or resignation to) employer access and ambivalence about whether unfettered access should be allowed. We argue that this is a question which must now be tackled.