The question of whether and how employers should be permitted to consider past criminal convictions in the hiring process is a vexed one.

Login or signup to continue reading

On one hand, rehabilitation is a key purpose of the justice system, and once someone has served their sanction - whether a fine, a term of imprisonment or somewhere in between - they should not face ongoing punishment.

Famously, an early governor of NSW appointed two emancipated convicts as colonial magistrates.

On the other hand, employers may be wary of employing workers who have committed criminal offences - particularly where the offence is serious or involves dishonesty.

A bank branch might worry about employing a former thief; someone convicted of child sex offences would not be an appropriate recruit for a role working with children. It is perhaps understandable that employers are increasingly requiring criminal record checks, or disclosures, as part of the recruitment process.

But particularly for lesser offences, and where much time has passed since the conviction, it becomes increasingly problematic for prospective employees to face discrimination on the basis of their past misconduct.

It is for this reason that every Australian state and territory has a spent conviction legislation.

In the ACT, for example, offences committed as an adult are automatically spent - no longer liable to be disclosed - after 10 years.

There are some exceptions, including sexual offences and offences involving more than six months' imprisonment.

Some jurisdictions - notably the ACT, Tasmania and the Northern Territory - also make it unlawful to discriminate against someone on the basis of prior criminal convictions.

Such schemes, including the Discrimination Act in the ACT, typically operate in relation to an "irrelevant criminal record".

Late last year, these issues came to a head in Complainant DT232023 v Community Services Directorate, with the ACT Civil and Administrative Tribunal ordered the territory government to pay over a quarter of a million dollars in........

© Canberra Times