Do Police Checks Unfairly Discriminate?

Many people believe that National Police Checks provide a valuable service in allowing employers to identify those individuals who should be excluded from active employment in certain fields based upon their past criminal history. However, is this the full story? Are people with criminal records being discriminated against unfairly as they seek to gain employment?

How might a criminal record affect employment opportunities for individuals?

Potential employment discrimination against individuals was studied and discussed as far back as December 2004 by the Australian Human Rights Commission. They have found that there is significant prejudice against those who have a criminal record when they apply for jobs, which contributes to a higher level of unemployment amongst those who possess a criminal record.

They note that when employers have the option to employ those without a criminal record versus those with a criminal record, they will often chose individuals without the criminal record rather than people with one. To some extent this is basic human nature, which prejudices people against those who may be dangerous or irresponsible. National Police Checks facilitate this process by allowing employers to gain knowledge of potential employees' past records.

In other industries and fields, it has less to do with active discrimination and more to do with a requirement for hiring managers to exclude those individuals who have a criminal record from consideration for employment. This is due to the specific nature of those fields. For example, organisations who work with young people or vulnerable adults or work in hospitals and health care facilities have what many would believe are valid reasons for not allowing people who have criminal records to apply for employment.

In addition, one may argue that the requirement to provide a police check to gain employment unfairly disadvantages young people and Indigenous Australians. For young people who already possess a criminal record, their future may look bleak, with any future prospects of employment hindered by what they have done in their past. Their opportunity to gain meaningful employment may be curtailed before they have even entered the job market. For Indigenous Australians, who are disproportionally represented in criminal figures, their chances of gaining employment are severely affected by any criminal record they may have.

'Inherent requirements' as a solution

The Australian Human Rights Commission advises that one of the best ways to avoid unfair discrimination on the basis of criminal history against individuals seeking employment, is to clearly identify the 'inherent requirements' of particular roles and assess an applicant's suitability against these requirements, taking into account any affect their criminal history might have on whether they can satisfy these requirements. This decision must be made without bias against the individual.

We can all sympathise with the desire not to let our pasts determine our futures. Even if one does not have a criminal record, often there are aspects of each person's past that they would not like to resurface. This is particularly true in employment situations, when individuals seek to be judged based upon the merit of their past positive work experiences and present proven performance, competencies, and abilities.

What is mentioned over and over again in the report is the important role trust plays in employment decisions. Employers must be able to trust that their employees can perform their roles without causing issues and disturbances. By allowing employers to view police history checks, they may lose trust in a candidate's proven abilities on the basis of past convictions. 

One can only hope that by being honest and up-front in interviews, those individuals can actively seek to gain this trust back and fight against this prejudice. The police check may then actually end up being a tool to gain this trust back by allowing employees the opportunity to disclose and discuss their past.