ENDING DISCRIMINATION ON THE BASIS OF IRRELEVANT CRIMINALRECORD

A vital dimension of the work we undertake as a community legal centre is to look beyond our day-to-day advice and representation services to areas of law which we consider warrant review.  One such area we have recently turned ourattention towards has been the ending of discrimination on the basis of a person’s irrelevant criminal record.

Queensland currently has no laws which would prevent discrimination occurring on the basis of someone’s criminal convictions, no matter how unrelated or distant in time they may be to the thing in question.

As such, during the preceding year and a half, we have been advocating for specific amendment to the Anti-DiscriminationAct 1991 (Qld). Our advocacy was informed by a research brief from The University of Queensland Pro-Bono Centre. Based on this comprehensive brief, we were then able to draft a submission for consideration by the Human Rights Commission.

PROPOSED RECOMMENDATIONSOF THE HUMAN RIGHTS COMMISSION

In September, the Human Rights Commission tabled a report in Parliament examining the Anti-Discrimination Act.   Importantly, this report made a significant recommendation about amending the Act to insert ‘irrelevant criminal history’ as a newprotected attribute under the Anti-Discrimination Act.

If adopted by the legislature, this Queensland law would prohibit discrimination on the basis of "irrelevant criminal record".  Irrelevant criminal record would be defined as a record relating to an offence, or an alleged offence, if—

(a)   the person has been chargedwith the offence but—

             (i)     a proceeding for the alleged offence is not finalised;or

             (ii)    the charge has lapsed, been withdrawn or discharged,or struck out; or

(b)   the person has beenacquitted of the alleged offence; or

(c)   the person has had aconviction for the alleged offence quashed or set aside; or

(d)   the person has been servedwith an infringement notice for the alleged offence; or

(e)   the person has a conviction for the offence, but the circumstances ofthe offence are not directly relevant to the situation in which discrimination arises;

(f)    the person has a spent conviction or an extinguished conviction, withinthe meaning of the Queensland equivalent Spent Convictions Act 2000, for the offence; or

(g)   any imputation of record relating toarrest, interrogation or criminal proceedings of any sort.

(h)   convictions under the Criminal Law (Historical Homosexual Convictions Expungement) Act 2017.

CENTRE’S POSITION ONRECOMMENDATIONS

HUB Community Legal strongly supports this recommendation.  If implemented, it would be a sizable step towards statutorily upholding a key pillar of the criminal justice system.  The justice system should not just punish individuals but allow for rehabilitation and personal growth and development.   The way this is achieved is the definition of “irrelevant criminal record” above,automatically deems spent convictions, namely convictions in which a specified rehabilitation time has expired, as irrelevant for current purposes.  Furthermore, this reform outlaw's discrimination on the basis of imputations.  In practice this would result in the elimination of ‘fishing expeditions’ whereby employers include checkboxes for applicants as to whether they have ever been arrested, questioned, or charged by Police as to an offence. Previously, if an applicant refused to answer such a checkbox, there was no enforceable procedure in Queensland to prevent this refusal from being a ground of discrimination.  

THANKS

We would also like to reiterate our thanks and appreciation for the assistance of Associate Professor Mandy Shircore and her researchers from The University of Queensland’s Pro-BonoCentre.  We specifically thank Emitis Morsalis, Charlotte Linklater-Steele, Hannah Woodfield, Archer Sullivan, Daisy Leadbetter and Osharni Goonewardene.

Read more about the Anti-Discrimination Act Review

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HUB's full submission can be downloaded here ...