HREOC Report No. 19
Reports of inquiries into complaints of discrimination in employment on the basis of criminal record
HREOC Report No. 19
Mr Mark Hall v NSW Thoroughbred Racing Board
Table of Contents
3.1 The nature of the complaint
3.2 The inquiry process
Functions of the Human Rights and Equal Opportunity Commission
Notice under section 35 of the Human Rights and Equal Opportunity Commission Act 1986 (Cth)
1. The Commission's jurisdiction
2. The parties
2.1. The complainant
2.2. The respondent
3. Summary of the complaint
4. Relevant legal framework
6. The inquiry process
7. Matters in dispute
8.2 Was the decision on the basis of criminal record?
8.3 Inherent requirements of the job
9.1 Whether there was an act or practice that arose in the course of employment or occupation
9.2 Whether there was a distinction, exclusion, or preference on the basis of criminal record
9.3 Whether the distinction nullified or impaired equality of opportunity in employment or occupation
9.4 Whether the distinction, exclusion or preference was based on the inherent requirements of the job
11.2 Recommendations regarding the payment of compensation
11.3 Assessment of uncertain damages
11.5 Receipt of benefits
11.6 General damages
11.7 Pre-interest compensation reflecting contingencies
11.9 Other recommendations
This report to the Attorney-General concerns an inquiry by the Human Rights and Equal Opportunity Commission ("the Commission") into a complaint made by Mr Mark Hall on 22 June 1999. The complaint is against the New South Wales Thoroughbred Racing Board (the "Board") under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (the "HREOC Act"). The complaint was made pursuant to section 32(1)(b) of the HREOC Act, which provides for a complaint to be made in writing to the Commission alleging that an act or practice constitutes discrimination (as defined in section 3 of the HREOC Act).
The Commission's functions in relation to the investigation and conciliation of complaints of discrimination and the Commission's functions in relation to reporting on complaints with substance that have not been resolved through the process of conciliation are outlined in Appendix A to this report.
3.1 The nature of the complaint
Mr Hall's complaint alleged discrimination in his employment and occupation on the ground of his criminal record. That complaint arose from the Board preventing Mr Hall from working for Ms Gai Waterhouse of Gai Waterhouse Racing Stables as a stablehand from about 28 April 1999 and refusing to issue him with a stablehand licence on or about 21 June 1999. Mr Hall alleged that the reason or one of the reasons, for the Board's refusal to allow him to continue working as a stablehand and its refusal to issue him with a licence was his criminal record.
The complaint is denied by the Board. In summary, the Board claims that the decision was not made on the basis of Mr Hall's criminal record but on other grounds, in particular Mr Hall's failure to disclose his criminal record. Alternatively, the Board relied upon the inherent requirements exception to discrimination (which also appears in section 3 of the HREOC Act).
3.2 The Inquiry process
On 19 February 2001, the President of the Commission provided to the parties a document entitled 'Report of an unconciliable complaint under the Human Rights and Equal Opportunity Commission Act 1986' (the "President's Report"). The President's Report contained the President's preliminary findings in respect of whether the complainant had been discriminated against within the terms of section 3(1) of the HREOC Act. The President formed the preliminary view that the respondent had discriminated against the complainant within the terms of section 3(1) on the basis of his criminal record.
After issuing the President's Report, the President delegated the further conduct of this inquiry to me. Pursuant to sections 33 and 27 of the HREOC Act, I invited the parties to make further submissions orally and/or in writing. The parties availed themselves of the opportunity to make both written and oral submissions.
On 23 April 2002, I issued a notice under section 35(3) of the HREOC Act (the "Notice". A copy of the Notice appears (without the appendices, which are adequately summarised in the Notice) as Appendix B to this report.
In summary, in the Notice I found that Mr Hall had been discriminated against on the ground of his criminal record and that the inherent requirements exception did not apply.
I made the following recommendations in relation to the payment of compensation to Mr Hall and in relation to the prevention of a repetition of the relevant acts and/or a continuation of the relevant practices:
1. that the Board pay to Mr Hall the amount of $33,303.05 (plus interest to the date of the Notice); and
2. " .that the Board conduct a review of its processes regarding the use of criminal records, having regard to the following matters:
- the definition
of discrimination in section 3 of the HREOC Act;
- the broader human
rights context, including relevant international law obligations such
as those contained in article 17 of the ICCPR; and
- the need to develop clear written guidelines regarding the procedures of the Board for the use of criminal record which reflect those matters.
That review should have close regard to the principles outlined in this notice and my findings regarding the acts or practices of the Board in respect of Mr Hall. The Commission would be happy to assist the Board in that review process."
Under section 35(2)(e) of the HREOC Act, the Commission is required to state in its report to the Attorney-General whether the respondent has taken or is taking any action as a result of its findings and recommendations.
On 23 April 2002 the Commission wrote to the respondent to seek its advice as to what action it had taken or proposed to take as a result of the findings and recommendations.
Dr Sev Ozdowski OAM
Human Rights Commissioner
24 April 2002