Essay by mikaelaoneil October 2014

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Discrimination on the grounds of disability, gender or race triggers strong public reactions of empathy and disgust in Australia today. An individual discriminated against in employment on the basis of a criminal record however, does not compel the same societal reactions. The Australian public is harsh on offenders, and whilst the criminal justice system espouses punishment goals of deterrence, retribution, rehabilitation and community protection, in practice rehabilitation rarely crops up in public discourse. In this punitive environment, it is hardly surprising that individuals with a criminal record are not afforded the same protection under Australian Anti-Discrimination laws. In examining the coverage of the attribute of criminal record in Australia today, this essay addresses two main issues. Firstly, the difficulties in defining what constitutes a 'criminal record' and in determining the circumstances where discrimination on this ground should be prohibited. Secondly, it analyses how these difficulties play into the regulation of discrimination on the basis of criminal record at state and commonwealth level and how they could be best overcome.

It argues that the difficulty in regulating discrimination on the basis of criminal record stems predominantly from the need to balance competing interests of fairness for potential employers and risk minimisation for employers.

Challenges defining and regulating 'criminal record'

Discrimination on the basis of criminal record occurs in various areas, hindering access to accommodation, housing, loans and various other services. However, discrimination on the ground of criminal record is a prevalent issue in the employment sector and thus forms the focus of this essay. Criminal record checks are becoming a routine part of the recruitment process. In this context, it is concerning that laws prohibiting discrimination on the basis of criminal record lack any real teeth. Three main legal schemes exist in Australia...