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

Melbourne University Law Review

Volumn 32, Issue 1, 2008, Pages

  Naylor, Bronwyn ^a   Paterson, Moira ^a   Pittard, Marilyn ^a  

^a MONASH UNIVERSITY   (Australia)

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EID: 77951773085     PISSN: 00258938     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (266)

1. CrimTrac Agency, Annual Report 2006-2007 (2007) 37.
2. Australian Federal Police, Annual Report 2006-2007 (2007) 106.
3. These increases have been calculated from f figures in annual reports: see above nn 1-2;
4. Australian Federal Police, Annual Repot 1997-1998 (1998) 98;
5. CrimTrac, Annual Report 2000-01 (2001) 23.
6. Statistics of requests for criminal record checks to Victoria Police have been sourced from Fitzroy Legal Service and Job Watch, Criminal Records in Victoria: Proposals for Reform (2005) 8;
7. Victoria Police, Annual Report 2006-07 (2007) 8, 27.
8. See, eg, CrimeNet 〈http://www.crimenet.com.au〉. This website is operated from Califor nia and contains 'a database of thousands of mostly Australian criminal records with emphasis on records relating to fraud, paedophilia, sex-related crimes and crimes of violence.'
9. As a basic principle of sentencing, the principle of proportionality requires that punishment be proportionate to the seriousness of the crime, and that once the proper sentence has been set by the courts and served by the offender, no further punishment should be imposed: Richard G Fox, 'The Meaning of Proportionality in Sentencing' (1994) 19
10. Melbourne University Law Review 489, 494-5 .
11. See, eg, Act 1991 (Vic) ss 5(1), (3).
12. See below Part IV(F).
13. Hilary Metcalf, Tracy Anderson and Heather Rolfe, Department for Work and Pensions, United Kingdom, Barriers to Employment for Offenders and Ex-Offenders - Part One: Barriers to Employment for Offenders and Ex-Offenders, Research Report No 155 (2001) 74.
14. See, eg, Student Centre, The University of Sydney, Criminal Record Checks - For Cenain UAC Commencing Students (13 March 2008) 〈http://www.usyd.edu. au/studentcentre/enrolments/CRC.shtml〉.
15. See, eg, Off ice of the Victorian Privacy Commissioner, Controlled Disclosure of Criminal Record Data: Report to Attorney-General Pursuant to Section 63(3) of the Information Privacy Act 2000 (2006) 3.
16. David Garland, The Culture of Control: Crime and Social Order in Contemporary Society (2001) 194-195
17. The Human Rights and Equal Opportunity Commission ('HREOC) reviewed the operation of anti-discrimination laws nationally in 2004: see HREOC, Discrimination in Employment on the Basis of Criminal Record: Discussion Paper (2004) ('HREOC Discussion Paper').
18. The Standing Committee of Attorneys-General ('SCAG') has been considering a national regime for spent convictions: see SCAG, Uniform Spent Convictions: A Proposed Model (Discussion Paper,2004 ).
19. In Victoria, the Fitzroy Legal Service and JobWatch have been advocating reform in the area for some time: see Fitzroy Legal Service and JobWatch, Criminal Records in Victoria: Proposals for Reform (2005).
20. See below Part III.
21. See, eg, Printing & Numerical Registering Co v Sampson (1875) LR 19 Eq 462, 465 (Jessel MR).
22. The only statute to make 'physical features' a prohibited ground of discrimination and therefore unlawful direct discrimination is Victoria: Equal Opportunity Act 1995 (Vic) s 6(f).
23. Moreover, if a hiring policy were to result in the disproportionate non-employment of older persons, there may be a basis to argue indirect discrimination on the ground of age. Anti-discrimination legislation at federal and state levels prohibit age discrimination: see, eg, Age Discrimination Act 2004 (Cth) ss 5-6,14-16;
24. Equal Opponunity Act 1995 (Vic) s 6(a).
25. See, eg, MyPoliceCheck 〈http://www.rnc.net.au〉, which advertises an Australia-wide service for individuals wishing to obtain their National Criminal History Record Check.
26. The applicant usually has no practical choice but to agree to the employer's request for access to criminal records if the applicant wishes to be considered for the position.
27. Public law does not provide a review mechanism for private agreements, and the law of contract does not apply to provide a remedy as a disappointed party would have no contract.
28. See, eg, Spring v Guardian Assurance pic [1995] 2 AC 296.
29. The Workplace Relations Act 1996 (Cth) provides for unfair dismissal protection.
30. Since the Workplace Relations Amendment (Work Choices) Act 2005 (Cth), from 27 March 2006, the unfair dismissal protection applies only to employers who engage 101 or more employees:
31. Workplace Relations Act 1996 (Cth) s 643(10). The Rudd Labor gover nment plans to amend the Workplace Relations Act 1996 (Cth) to provide the statutory unfair dismissal protection to most employees and to exempt only small business employers which engage less than 15 employees:
32. Kevin Rudd and Julia Gillard, Forward with Fair ness: Labor's Plan for Fairer and More Productive Australian Workplaces (2007) 19-20 〈http://www.alp.org.au/download/fwf-finala.pdf〉.
33. See, eg, Public Service Act 1999 (Cth) s 22(6)(d), which provides that the Australian Public Service ('APS') can require security or character checks to be undertaken by a job applicant as a condition of being engaged in the APS.
34. See, eg, Privacy Act 1988 (Cth) s 14.
35. If an employer owes greater duties to an employee in any decision to terminate the employment contract- as was held in Russell v Trustees of the Roman Catholic Church for the Archdiocese of Sydney (2007) 167 IR 121 - then it is very likely that the employer will be more careful in process of appointment.
36. See generally Rosemary Owens and Joellen Riley, The Law of Work (2007) 254-60;
37. th ed, 2003 ) 220-241
38. See, eg, Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44. A similar obligation is imposed under state occupational health and safety legislation:
39. see, eg, Occupational Health and Safety Act 2004 (Vic) s 21.
40. See Hollis v Vabu (2001) 207 CLR 21.
41. See Wade v Victoria [1999] 1VR 121;
42. Spring v Guardian Assurance pic [1995] 2 AC 296.
43. [2007] NSWCA 230 (Unreported, Mason P, Beazley and Campbell JJA, 3 September 2007).
44. NSWCA 230, Ibid [55]-[62] (Campbell JA).
45. [2007] SASC 241 (Unreported, Debelle, Sulan and Layton JJ, 28 June 2007) [72] (Debelle J).
46. SASC 241, Ibid.
47. Ibid [14], [72].
48. Commission for Children and Young People Act 1998 (NSW);
49. Care and Protection of Children Act 2007 (NT);
50. Commission for Children and Young People and Child Guardian Act 2000 (Qld);
51. Children's Protection (Miscellaneous) Amendment Act 2005 (SA);
52. Working with Children Act 2005 (Vic);
53. Working with Children (Criminal Record Checking) Act 2004 (WA).
54. Working with Children Act 2005 (Vic) ss 12-14.
55. Corporations Act 2001 (Cth) s 206B(1).
56. Security Industry Act 1997 (NSW) s 16;
57. Security Industry Regulations 1998 (NSW) reg 11.
58. Private Security Act 2004 (Vic) ss 13, 25(2)(f).
59. Private Security Act 2004 (Vic) s 26(2)(e).
60. See, eg, Legal Profession Act 2004 (Vic) ss 1.2.6, 2.3.3;
61. Legal Practice Act 2003 (WA) s 39.
62. See, eg, Legal Profession Act 2004 (Vic) s 1.2.6;
63. Board of Examiners, Admissions (31 March 2008 ) Supreme Court of Victoria 〈http://www.supremecourt.vic.gov.au/wps/wcm/connect/ Supreme+Court/Home/ Board+of+Examiners/Admissions/〉.
64. See, eg, Education and Training Reform Act 2006 (Vic), which establishes the Victorian Institute of Teaching ('VIT');
65. Teachers Registration and Standards Act 2004 (SA), which establishes the Teachers Registration Board of South Australia.
66. VT is authorised under the Education and Training Reform Act 2006 (Vic) s 2.6.22 to request police checks from Victoria Police without obtaining the consent of the applicant.
67. The Victorian Privacy Commissioner notes that the VIT now obtains police checks directly from CrimTrac as an accredited agency, a process which he concludes 'has an unclear basis in law': Office of the Victorian Privacy Commissioner, above n 9,12.
68. The teacher later received a f inancial settlement from the Victorian Department of Education and Training: 'Victorian Teacher Paid Out after Sex Controversy', AAP (Melbourne), 21 April 2006.
69. Law Reform Commission, Ireland, Report: Spent Convictions, Report No 84 (2007) 16-17.
70. See Crimes Act 1914 (Cth);
71. Spent Convictions Act 2000 (ACT);
72. Criminal Records Act 1991 (NSW);
73. Criminal Records (Spent Convictions) Act 1992 (NT);
74. Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld);
75. Annulled Convictions Act 2003 (Tas);
76. Spent Convictions Act 1988 (WA).
77. For a summary of schemes in countries other than Australia, see Sentencing and Offences Unit, Home Off ice, UK, Breaking the Circle: A Report of the Review of the Rehabilitation of Offenders Act (2002) 65-74.
78. See Victoria Police, National Police Certificates: Information Release Policy (3 December 2007) 〈http://www.police.vic.gov.au/content.asp?a=inter netBridgingPage&Media-ID=7356〉.
79. See, eg, Criminal Records Act 1991 (NSW) s 10 (offences committed by children lapse after three years);
80. Annulled Convictions Act 2003 (Tas) s 6(2)(b) (lapses after five years).
81. See, eg, Spent Convictions Act 2000 (ACT) s 11;
82. Criminal Records Act 1991 (NSW) s 7;
83. Criminal Records (Spent Convictions) Act 1992 (NT) ss 5-6;
84. Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld) s 3(2);
85. Spent Convictions Act 1988 (WA) s 4.
86. Spent Convictions Act 2000 (ACT) s 11(2)(a);
87. Criminal Records Act 1991 (NSW) s 7(l)(a);
88. Criminal Records (Spent Convictions) Act (NT) s 6(1);
89. Annulled Convictions Act 2003 (Tas) s 3(1).
90. Crimes Act 1914 (Cth) s 85ZM;
91. Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld) s 3(2)(b).
92. Spent Convictions Act 1988 (WA) ss 6-7.
93. See Victoria Police, Information Release Policy, above n 45, 2.
94. Cf Spent Convictions Act 2000 (ACT) s 15;
95. Crimes Act 1914 (ah) s 85ZX.
96. For the Commonwealth scheme, see Crimes Act 1914 (Cth) ss 85ZL-85ZZK.
97. Areas which are not subject to this spent convictions regime are specif ied in s 85ZZH of the Crimes Act 1914 (Cth).
98. The Commonwealth Privacy Commissioner administers the scheme and can recommend further exemptions to the Minister: Crimes Act 1914 (Cth) s 85ZZ(l)(b).
99. The Commissioner has recommended such exemptions -for, inter alia, employment involving the care of prisoners and people with disabilities, and industries susceptible to the infiltration of organised crime, such as casinos - but has refused exemptions for f inancial institutions and for blanket checks by the Commonwealth : see Jim Nolan, 'Privacy in the Workplace - Part 1: Legal Issues' (1995) 2 Privacy Law and Policy Reporter 1, 4.
100. Most recently an exemption was recommended and implemented in relation to AusCheck: see Off ice of the Privacy Commissioner, Annual Report 2006-07 (2007) 16.
101. Regimes in the ACT, NSW and Tasmania each provide that a person's criminal history is taken to refer only to convictions which are not spent: Spent Convictions Act 2000 (ACT) s 16(a);
102. Crimi nal Records Act 1991 (NSW) s 12(a);
103. Annulled Convictions Act 2003 (Tas) s 9(1)(b).
104. See, eg, Crimes Act 1914 (Cth) s 85ZW(b).
105. See, eg, Spent Convictions Act 2000 (ACT) s 16(c);
106. Criminal Records Act 1991 (NSW) s 12(c);
107. Criminal Records (Spent Convictions) Act (NT) s 11(c).
108. See below n 70 and accompanying text.
109. [571 Crimes Act 1914 (Cth) ss 85ZV-W(a).
110. However, an ex-offender cannot deny the existence of the conviction in criminal proceedings: Crimes Act 1914 (Cth) s 85ZZH(C).
111. Crimes Act 1914 (Cth) s 85ZW(b).
112. ~ [59] Crimes Act 1914 (ah) s 85ZZA.
113. ~ [60] Crimes Act 1914 (Cth) s 85ZZD.
114. See SCAG, Uniform Spent Convictions: A Proposed Model, above n 11.
115. See SCAG, 'SCAG Summary of Decisions - March 2008' (Communiqué, 28 March 2008) 5. (South Australia is the instructing jurisdiction.)
116. ~[63] See, eg, Anti-Discrimination Act 1992 (NT) s 20.
117. See Beth Gaze, 'The Sex Discrimination Act after Twenty Years: Achievements, Disappointments, Disillusionment and Alternatives' (2004) 27 University of New South Wales Law Journal 914.
118. ~[65] Human Rights and Equal Opportunity Commission Act 1986 (Cth) s 3;
119. Anti-Discrimination Act 1992 (NT) s 19;
120. Anti-Discrimination Act 1998 (Tas) s 16.
121. Opened for signature 25 June 1958, 362 UNTS 31, art 1 (entered into force 15 June 1960).
122. Ibid.
123. Human Rights and Equal Opportunity Commission Regulations 1989 (Cth) reg 4(a)(III).
124. Anti-Discrimination Act 1992 (NT) s 19(l)(q)
125. and Anti-Discrimination Act 1998 (Tas) s 16(q) prohibit discrimination on the basis of 'irrelevant criminal record'.
126. For a review and critique of the Australian provisions, see Submission to HREOC, Discrimination in Employment on the Basis of Criminal Record, February 2005, Submission No 22, 19-23 (Public Interest Law Clearing House Homeless Persons' Legal Clinic) ('PILCH Submission').
127. Human Rights and Equal Opportunity Commission Act 1986 (Cth) s 3(1).
128. This is inherent in the Northern Territory and Tasmanian concept of 'irrelevant criminal record'. The Tasmanian legislation permits discrimination on the basis of 'irrelevant criminal record' where it is necessary for positions involving care of children: Annulled Convictions Act 2003 (Tas) s 50.
129. ~[70] A recent review of the Western Australian Equal Opportunity Act recommended adding as a ground of prohibited discrimination 'irrelevant criminal record': see Equal Opportunity Commission, Wester n Australia, Review of the Equal Opportunity Act 1984 (2007) 4, 22-3.
130. The Equal Opportunity Act 1995
131. (Vic) is currently under review and the inclusion of criminal record as a prohibited ground of discrimination is one of the issues raised in the Equal Opportunity Review, 'Equal Opportunity Review: Discussion Paper' (Discussion Paper, Department of Justice, Victoria, 2007) 34-35
132. ~[71] Equal Opportunity Act 1995 (Vic) s 6(g).
133. For example, a conscientious objector to compulsory conscription to the armed forces may decide, consistent with the objector's beliefs or objecting to the country's war involvement, to refuse to follow the lawful process available to establish the conscientious objection, thereby committing a criminal act. It is arguable that an employer's refusal later to engage such a person because of that criminal record may constitute discrimination on the basis of political belief.
134. Opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976). See Human Rights Act 2004 (ACT);
135. Charter of Human Rights and Responsibilities Act 2006 (Vic) ('Victorian Charter').
136. Victorian Charters 3(1).
137. st ed, 1999 ) ch 4.8.
138. Civil Rights Act, 42 USC §§2000(e)-(e)(17) (2000 & Supp IV, 2005).
139. See also US Equal Employment Opportunity Commission, Questions and Answers about Race and Color Discrimination in Employment (16 May 2006) 〈http://www.eeoc.gov/policy/docs/qanda-race-color.html〈;
140. Philippa Wells and Jacquelin MacKinnon, 'Criminal Records and Employment: A Case for Legislative Change' (2001) 19 New Zealand Universities Law Review 177 ,180.
141. action is required such as education: see Beth Gaze, 'Has the Racial Discrimination Act Contributed to Eliminating Racial Discrimination? Analysing the Litigation Track Record 2000-04' (2005) 11 Australian Journal of Human Rights 171, 172.
142. See below Part IV(F).
143. HREOC Discussion Paper, above n 11, including summary of complaints in Attachment A to the Discussion Paper.
144. See also two HREOC determinations on this issue: Sev Ozdowski, HREOC, Reports of Inquiries into Complaints of Discrimination in Employment on the Basis of Criminal Record: Mr Mark Hall v NSW Thoroughbred Racing Board, HREOC Report No 19 (2002);
145. HREOC, Reports of Inquiries into Complaints of Discrimination in Employment on the Basis of Criminal Record: Ms Renai Christensen v Adelaide Casino Pty Ltd, HREOC Report No 20 (2002).
146. HREOC, On the Record: Guidelines for the Prevention of Discrimination in Employment on the Basis of Criminal Record (revised ed, 2007).
147. Ibid 8.
148. Equal Opportunity Commission Victoria, A Fair Go for Job Seekers: Best Practice Guidelines for the Recruitment Industry and Employers (2005).
149. See, eg, National Privacy Principle ('NPP') 6 in Privacy Act 1988 (Cth) sch 3.
150. See, eg, Information Privacy Principle ('IPP') 7 in Privacy Act 1988 (Cth) s 14. This means, for example, that an applicant who becomes aware that the police have provided incorrect information about them may use the correction principle in the relevant public sector information privacy regime to request an amendment of the relevant police record.
151. Privacy Act 1988 (Cth);
152. Privacy and Personal Information Protection Act 1998 (NSW);
153. Information Act 2002 (NT);
154. Personal Information Protection Act 2004 (Tas);
155. Information Privacy Act 2000 (Vic). The ACT public sector is regulated by the Privacy Act 1988 (Cth). The Information Privacy Bill 2007 (WA) was introduced in the Western Australian Parliament in March 2007 and was submitted to the Legislative Council for Second Reading on 4 December 2007.
156. Section 6D of the Privacy Act 1988 (Cth) currently excludes many private sector bodies from its operation as 'small business operators'. These are defined as businesses with annual turnover of under $3 million. This is, however, subject to exceptions: for example, it does not apply to any body such as Crime Net that sells or trades in personal information: s 6D(4).
157. Health Records (Privacy and Access) Act 1997 (ACT);
158. Health Records and Information Privacy Act 2002 (NSW);
159. Health Records Act 2001 (Vic).
160. Department of Justice and Attorney-General, Queensland, Privacy (2008) 〈http://www.justice.qld.gov.au/40.htm〉;
161. Department of Premier and Cabinet, South Australia, PC012-Information Privacy Principles Instruction (Cabinet Administrative Instruction No 1, 1989 ) 〈http://www.premcab.sa.gov.au/pdf/circulars/Privacy.pdf>.
162. See, eg, Privacy Act 1988 (Cth) s 14 IPP 11, sch 3 NPP 2;
163. Privacy and Personal Information Protection Act 1998 (NSW) s 18;
164. Information Privacy Act 2000 (Vic) sch 1IPP 2.
165. See, eg, Privacy Act 1988 (Cth) s 14 IPP 1-3, sch 3 NPP 1;
166. Privacy and Personal Information Protection Act 1998 (NSW) ss 8-11;
167. Information Privacy Act 2000 (Vic) sch 1IPP 1.
168. See, eg, Privacy Act 1988 (Cth) sch 3 NPP 10;
169. Privacy and Personal Information Protection Act 1998 (NSW) s 19;
170. Information Privacy Act 2000 (Vic) sch 1 IPP 10.
171. See, eg, Privacy Act 1988 (Cth) sch 3 NPP 10;
172. Privacy and Personal Information Protection Act 1998 (NSW) s 19;
173. Information Privacy Act 2000 (Vic) sch 1 IPP 10.
174. See, eg, Privacy Act 1988 (Cth) s 6(1), which excludes generally available publications from the def inition of 'record'.
175. See, eg, Sentencing Act 1991 (Vic) ss 5(1)(b), (d). The United States Supreme Court in Paul v Davis, 424 US 693 (1976) held that criminal records did not fall within the scope of constitutional privacy protection available under the Fourteenth Amendment.
176. See, eg, Tucker v News Media Ownership Ltd [1986] 2 NZLR 716, where the High Court of New Zealand held that a plaintiff whose fundraising campaign for a heart transplant was endangered when a newspaper threatened to publish details of previous sex convictions had an actionable privacy interest. The Court refused to grant injunctive relief, however, on the basis that it would be futile to do so: at 736 (McGechan J).
177. Information privacy laws do not preclude the collection of information from publicly available sources: see Off ice of the Privacy Commissioner, Australian Government, Private Sector Information Sheet 17-Privacy and Personal Information That Is Publicly Available (2003) 〈http://www.privacy.gov.au/ publications/IS17-03.pdf>.
178. See, eg, Crime Net 〈http://www.crimenet.com.au/>;
179. GovtRegistry.com 〈http://www.govtregistry .com/au>.
180. See above Part II (A). The Australian Law Reform Commission ('ALRC) has recently released a Discussion Paper which proposes extensive reforms to the Privacy Act 1988 (Cth) as well as Australia-wide adoption of a unif ied set of privacy principles: see ALRC, 'Review of Australian Privacy Law', Discussion Paper No 72 (2007).
181. For a discussion of the arguments for and against protecting ex-offenders' employment rights, see Helen Lam and Mark Harcourt, 'The Use of Criminal Record in Employment Decisions: The Rights of Ex-Offenders, Employers and the Public' (2003) 47 Jour nal of Business Ethics 237.
182. See Dugan v Mirror Newspapers Ltd (1979) 142 CLR 583;
183. Note, 'The Disenfranchisement of Ex-Felons: Citizenship, Criminality, and "The Purity of the Ballot Box" ' (1989) 102 Harvard Law Review 1300,1301-1302
184. Metcalf, Anderson and Rolfe, above n 7, 4.
185. Devah Pager, 'The Mark of a Criminal Record' (2003) 108 American Journal of Sociology 937, 942 .
186. Joe Graffam et al, Attitudes of Employers, Corrective Services Workers, Employment Support Workers, and Prisoners and Offenders towards Employing Ex-Prisoners and Ex-Offenders (2004) 26. This was a study of the attitudes of employers, correctional staff and offenders to the employability of ex-offenders, compared with a range of persons with differing disabilities.
187. See Convention (No 111) Concerning the Discrimination in Respect of Employment and Occupation, opened for signature 25 June 1958, 362 UNTS 31, arts 1(1)(a), (2), (3) (entered into force 15 June 1960).
188. See also International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976);
189. International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976);
190. Convention on the Rights of the Child, opened for signature 20 November 1989,1577 UNTS 3 (entered into force 2 September 1990).
191. International Labour Off ice, Protection of Workers' Personal Data (1997) 5, 32.
192. Protection of Workers Personal Data, 1997, 5, 32 Ibid.
193. Charter of Human Rights and Freedoms, RSQ 1975, c C-12, s 18.2.
194. Metcalf, Anderson and Rolfe, above n 7, 74, 111, 199.
195. Ibid 199. Similarly, employer discrimination has been identified as the most common labour market disadvantage suffered by ex-offenders in the UK: Graffam et al, above n 103, 5-6.
196. Pager, above n 102, 957-61.
197. See also the f indings of Metcalf, Anderson and Rolfe, above n 7, 104. Earlier research has reported similar f indings in respect of criminal records, based on matched application letters: Bruce Wester n, Jeffrey Kling and David Weiman, 'The Labor Market Consequences of Incarceration' (2001) 47 Crime and Delinquency 410, 412-415 The authors reviewed the literature, which identifies differences in effect in relation to types of criminal sanctions, age of offender and previous employment. It must also be noted that factors of marginalisation which may be related to a person offending (and to being sentenced to prison) may also be relevant to their employability. Imprisonment itself can also affect the employability of ex-offenders by reducing their job skills and their social networks, and in many cases by interrupting a young person's transition into a stable career.
198. HREOC, Annual Report 2006-2007 (2007) 63. Complaints under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) are separate from those under the specif ic legislation dealing with discrimination on the basis of sex, race, age and disability.
199. HREOC Discussion Paper, above n 11, 40.
200. Alan F Westin and Michael A Baker, National Academy of Sciences Project on Computer Databanks, Databanks in a Free Society: Computers, Record-Keeping and Privacy (1972) 267.
201. Sentencing and Offences Unit, Breaking the Circle, above n 44, 75.
202. See Lam and Harcourt, above n 99, 243.
203. Julian Prime et al, Criminal Careers of Those Born between 1953 and 1978 (2001) 6 〈http://www.homeoff ice.gov.uk/rds/pdfs/hosb401.pdf>. The authors note that this may of course also indicate that people become more adept at avoiding detection as they age.
204. Prime J., et al., Criminal Careers of Those Born between 1953 and 1978, 2001, 6, http://www.homeoffice.gov.uk/rds/pdfs/hosb401.pdf Ibid.
205. Currently there are labour shortages in various industries. The skilled migration scheme under the Migration Act 1958 (Cth), whereby temporary work permits are granted to overseas workers to allow them to work in certain industries for a limited period of time, has recently been utilised extensively:
206. see Department of Immigration and Citizenship, Temporary Business (Long Stay): Standard Business Sponsorship (Subclass 457) 〈http://www.immi.gov. au/skilled/skilled-workers/sbs/index.htm〉. This is indicative of the shortage of labour because this visa is stated to operate in areas where there is shortage of local skilled labour, for example, trades.
207. See, eg, Department for Education and Skills and Department for Work and Pensions, Home Off ice, UK, Reducing Re-Offending through Skills and Employment: Next Steps (2006) 〈http://www.dfes.gov.uk/offenderlear ning/uploads/documents/Reducing%20Re-Offending%20 Through%20Skills%20and%20Employment%20Next%20Steps.pdf>. This initiative is now coordinated by the new Department for Innovation, Universities and Skills: see generally 〈http://www.dius.gov.uk>.
208. See Malcolm Cowburn and Peter Nelson, 'Safe Recruitment, Social Justice, and Ethical Practice: Should People Who Have Criminal Convictions Be Allowed to Train as Social Workers?' (2007) Social Work Education 1. Teaching and social work courses typically include these requirements. For example, students seeking entry into the Bachelor of Social Work at Griff ith University are informed that they may have to undergo a Working with Children Suitability Check:
209. Griff ith University, Bachelor of Social Work - Logan 〈http://www17.griffith.edu.au/cis/ p-cat/admission.asp?ProgCode= 1282&Type=apply〉. Similarly, applicants for the same course at the University of South Australia are required to provide evidence of a current police check before commencing their placement;
210. The University of South Australia, 08: Social Work and Human Services (2007) 3 〈http://www.unisa.edu.au/study/progcourses/undgradpdf08/social- work.pdf〉.
211. In 2006, indigenous people were imprisoned at 13 times the rate of non-indigenous people: ABS, above n 77.
212. See Submission to SCAG in response to Uniform Spent Convictions: A Proposed Model Discussion Paper, 11 October 2004, 2 (Victorian Aboriginal Legal Service).
213. Uniform Spent Convictions: A Proposed Model Discussion Paper, 2004, 2 Ibid.
214. See also the case study used in Graeme Innes, 'Police Checks: A Human Rights Perspective' (Speech delivered at the Occupational Health and Safety and Human Resources Confer-
215. ence, 2 November 2007) 〈http://www.hreoc.gov.au/about/media/ speeches/human-rights/2007/police-checks20071102.html〉.
216. In Victoria, 63 per cent of people in custody were unemployed before conviction: Department of Justice, Victoria, Statistical Profile of the Victorian Prison System 2002-2003 to 2006-2007 (2008) Table 29. Offending, reoffending and employment, and any causal relations between them, are (of course) complex issues.
217. Social Exclusion Unit, Off ice of the Deputy Prime Minister, UK, Reducing Re-Offending by Ex-Prisoners (2002) 4.
218. Pager, above n 102, 939 (citations omitted).
219. Chartered Institute of Personnel and Development, Employing Ex-Offenders to Capture Talent (2007) 2 〈http://www.cipd.co.uk/NR/rdonlyres/CC2DF252- 2364-4214-9A7A-4C4212CC4EFA/0/empexoffndcaptalpdf.pdf〉.
220. See The First Step Program 〈http://www.firststepprogram.org〉.
221. The program is funded by Corrections Victoria under its Better Pathways strategy: see Department of Justice, Victoria, Better Pathways: An Integrated Response to Women's Offending and Re-Offending - A Four-Year Strategy to Address the Increase in Women's Imprisonment in Victoria 2005-2009 (2005).
222. See Graffam et al, above n 103, 56-57
223. Neil Wallace, Chartered Institute of Personnel and Development, Employing People with Criminal Records (March 2008) 〈http://www.cipd.co.uk/subjects/ dvsequl/exoffenders/crimrec.htm?lsSrchRes=1〉.
224. Press Off ice, Chartered Institute of Personnel and Development, HR Professionals Positive about Ex-Offenders' Performance in the Workplace (23 October 2002) 〈http://www.cipd.co.uk/pressoffice/-articles/23102002130100. htm〉.
225. See, eg, Spent Convictions Act 1988 (WA) ss 6-7.
226. Spent Convictions Act 2000 (ACT) s 16(b);
227. Criminal Records Act 1991 (NSW) s 12(b);
228. Criminal Records (Spent Convictions) Act 1992 (NT) s 11(b);
229. Annulled Convictions Act 2003 (Tas) s 9(1)(c).
230. See Criminal Law (Rehabilitation of Offenders) Act 1986 (QId) s 9. See generally PILCH Submission, above n 68, 23.
231. See, eg, Spent Convictions Act 2000 (ACT) s 16(b);
232. Criminal Records Act 1991 (NSW) s 12(b);
233. Criminal Records (Spent Convictions) Act 1992 (NT) s 11(b);
234. Annulled Convictions Act 2003 (Tas) s 3.
235. Criminal Records Mix-Up Uncovered (21 May 2006) BBC News 〈http://news.bbc.co.uk/2/hi/uk-news/5001624.stm〉. It has been estimated that 400 000 Americans experienced criminal identity theft and related issues with criminal records in one year:
236. Sharon M Dietrich, 'When "Your Permanent Record" Is a Permanent Barrier' (2007) 41 Clearinghouse Review: Journal of Poverty Law and Policy 139, 143.
237. Office of the Victorian Privacy Commissioner, above n 40, 5-6.
238. See, eg, Freedom of Information Act 1982 (Vic) pt V.
239. The potential for such errors was graphically highlighted in the 'Soham murders' case in the UK in August 2002. A school employee who caused the deaths of two young girls would not have been employed had his previous criminal history been properly recorded: Riazat Butt, 'Soham Murderer Will Serve at Least 40 Years', The Guardian (London), 30 September 2005, 4.
240. The case led to the Bichard Inquiry in 2004, which looked into, inter alia, the 'effectiveness of... intelligence-based record keeping': Sir Michael Bichard, The Bichard Inquiry: Report (2004) 19.
241. ABS, Criminal Courts, Australia, 2005-2006, ABS Catalogue No 4513.0 (2007) 3.
242. Verónica B Pinero, On Panopticism, Criminal Records and Sex Offender Registries (December 2006) First Monday 〈http://firstmonday.org/ issues/issue11-12/pinero/index.html〉.
243. Prime et al, above n 116, 6.
244. Ibid 8.
245. Ibid 10-11.
246. Ibid 9-11.
247. SCAG, Uniform Spent Convictions: A Proposed Model, above n 11, 41.
248. See also the more detailed reforms to the federal regimes proposed in PILCH Submission, above n 68.
249. ALRC, above n 98, ch 5.
250. Office of the Victorian Privacy Commissioner, above n 9, 15-19.
251. Checks have to be conducted as part of licensing for some occupations, such as inquiry agents and security off icers, health professionals, and some dangerous occupations. People working with children also have to obtain a separate Working with Children Check.
252. See Criminal Records Bureau, Home Office, UK, Applicant's Guide to the CRB's Disclosure Service (29 February 2008) 〈http://www.crb.gov.uk/default. aspx?page=1871〉.
253. In order to avoid employers circumventing restrictions on off icial access by asking applicants directly about their criminal records, such questions would need to be prohibited.
254. ALRC, above n 98, 294.
255. We recognise the practical difficulties arising from inter net sites based in foreign jurisdictions. However, we speculate that the measure we propose will have some impact on their operation.
256. CrimTrac has established a process of accreditation for agencies requiring regular record checks (at least 500 per year). The agency can then apply directly to CrimTrac, provided it can show that checks will produce a 'community benef it', def ined by reference to security requirements and vulnerable client groups: see CrimTrac, Accreditation Procedures to Access National Criminal History Record Checking (NCHRC) Services (2007) 〈http://www.crimtrac.gov.au/files/ file/nchrc-accreditation-procedures. pdf〉. Other agencies and individuals can still seek criminal record checks, but do so through their state police force.
257. Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (UK).
258. Criminal Records Bureau, Applicant's Guide to the CRB's Disclosure Service, above n 152.
259. See Criminal Records Bureau, Home Off ice, UK, What Is the Code of Practice? (29 February 2008 ) 〈http://www.crb.gov.uk/Default.aspx?page= 311∠;
260. Criminal Records Bureau, Home Office, UK, Sample Policy Statement on the Recruitment of Ex-Offenders (2005) 〈http://www.crb.gov.uk/PDF/CRB-DIP011- Policy-Statement-Ex-offenders-Eng.pdf〉.
261. See, eg, Working with Children Act 2005 (Vic) pt 2.
262. For example, the risk that information stored may be hacked into or inappropriately disclosed.
263. See, eg, Jan O'Grady, Ombudsman, Tasmania, Listen to the Children: Review of Claims of Abuse from Adults in State Care as Children (2004);
264. Northern Territory Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse, Ampe Akelyernemane Meke Mekarle - 'Little Children Are Sacred' (2007);
265. Gregory Smith, The Harm Done: Towards Acknowledgement and Healing in New South Wales (2007) The Bellingen Institute 〈http://www.bellingeninstitute. com.au/media/php?action=fullnews&id=43〉
266. Senate Community Affairs References Committee, Parliament of Australia, Forgotten Australians: A Report on Australians Who Experienced Institutional or Out-of-Home Care as Children (2004).