Prospective employers are requesting criminal record checks in increasing numbers, but are finding it difficult to assess the significance of criminal history and how to weigh the risks associated with employing former offenders, according to university researchers.

Professor Marilyn Pittard from Monash University told a recent forum in Melbourne that checks had increased by 70% in three years to 2009-10, but not enough attention had been given to the effects on employment prospects of former offenders.

A three-year research project, Living Down the Past: Criminal Record Checks and Access to Employment for Ex-Offenders, being jointly conducted by Monash University and RMIT University researchers, has also found that many ex-offenders are being denied a valuable rehabilitation opportunity if employers decide against engaging them because of their past.

Pittard – who recently presented on the research at a symposium in Melbourne – said the project's central aim is to identify employer practices involved in using criminal record checks and determine the potential effects on the employment of ex-offenders.

Led by Associate Professor Bronwyn Naylor, Professor Pittard and Associate Professor Moira Paterson (all from Monash University) and Dr Georgina Heydon from RMIT, the research project has been funded by an Australian Research Council Linkage grant and has been conducted with the support of Corrections Victoria, the Australian Human Rights Commission, JobWatch, Fitzroy Legal Service, Victorian Association for the Care and Resettlement of Offenders (VACRO) and the Victorian Equal Opportunity and Human Rights Commission (VEOHRC).

HR practitioners not inclined to automatically exclude former offenders

More than 120 HR managers across a range of organisations and industries responded to a survey conducted as part of the research, with 20 HR practitioners taking part in detailed interviews.

While the data from the surveys and interviews is still being analysed, the project's preliminary research findings suggests that ex-offenders tend to self-exclude from employment opportunities when criminal record checks are used, so their contribution is lost before it could be considered.

The preliminary findings also indicate that HR managers:

• prefer to engage in dialogue rather than automatically exclude applicants with a criminal record;
• tend to commission a check late in the process, which raises challenges where the applicant is otherwise the preferred candidate;
• feel some discomfort about the extent and level of information provided in checks;
• express uncertainty about how to evaluate the seriousness and relevance of information provided in a check;
• recognise that a 'zero tolerance' policy can be unfair, and also that rehabilitation issues should not be forgotten.

Pittard said that federal government agency CrimTrac conducted 1.6 million criminal records checks in 2005-2006, but this increased to 2.7 million in 2009-2010.

"This shows that criminal records checks are being increasingly used as a recruiting tool by employers, even where there are no mandatory requirements for checking criminal histories, for example jobs which involve working with children".

"Employment is essential to the rehabilitation of offenders, yet employers routinely check criminal records in pre-employment processes and deny offenders employment," she said.

"Little attention has been given to the implications of the exponential growth in criminal record checking for society's reintegration of offenders."

She said HR managers and employers were also being required to consider the relevance of criminal history "while negotiating privacy, anti-discrimination and spent convictions schemes" which vary considerably between states and territories.

Changes to Fair Work Act: a missed opportunity

Pittard said that the Fair Work Act failed to address the fact that there is "no inclusion of irrelevant criminal record in respect of prospective employee or employee" in the grounds for discrimination protected in s351.

And while the inclusion of this ground into the Federal Government's now postponed discrimination harmonisation legislation has been recommended, Pittard echoed the concerns of former AHRC President Catherine Branson that the legislation might ultimately remove the Commission's current power to investigate potential discrimination on the basis of criminal record (see Related Article).