HREOC Report No. 20

Reports of inquiries into complaints of discrimination in employment on the basis of criminal record

HREOC Report No. 20

Ms Renai Christensen v Adelaide Casino Pty Ltd


Contents

1. Introduction

2. The Commission's jurisdiction

3. The parties

3.1. The Complainant
3.2. The Respondent

4. Summary of the complaint

5. Relevant legal framework

6. Conciliation

7. The inquiry process

8. Matters for consideration

9. Submissions

10. Findings

10.1 Whether there was an act or practice in terms of the HREOC Act
10.2 Whether there was a distinction, exclusion, or preference on the basis of criminal record
10.3 Whether the distinction, exclusion or preference nullified or impaired equality of opportunity or treatment in employment or occupation
10.4 Whether the distinction, exclusion or preference was based on the inherent requirements of the job

11. Conclusion

12. Recommendation

13. Actions taken by the respondent as a result of the findings and recommendations

APPENDIX A
Functions of the Human Rights and Equal Opportunity Commission


1. Introduction

This report to the Attorney-General concerns an inquiry made by the Human Rights and Equal Opportunity Commission ("the Commission") into a complaint made by Ms Renai Christensen on 6 November 2000. The complaint is against Adelaide Casino Pty Ltd 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.

2. The Commission's jurisdiction

This is a complaint under the HREOC Act of discrimination in employment on the ground of criminal record. The jurisdiction of the Commission in relation to complaints of discrimination in employment is described in Appendix A to this report.

At the time of its enactment in 1986 the HREOC Act set out a number of grounds of discrimination. In 1989 the Human Rights and Equal Opportunity Commission Regulations ("the Regulations") declared a number of additional grounds of discrimination for the purposes of the HREOC Act with effect from
1 January 1990. Criminal record is one of those grounds.

3. The parties

3.1. The Complainant

The complainant is Ms Renai Christensen.

3.2. The Respondent

The respondent to the complaint is the Adelaide Casino Pty Ltd trading as the Adelaide Casino.

4. Summary of the complaint

In summary, on 6 November 2000, Ms Christensen lodged a complaint with the Commission alleging discrimination on the basis of her criminal record when seeking employment with Adelaide Casino. The complaint arises from the respondent's rejection of Ms Christensen's application for employment as a bar attendant in October 2000. In the course of that application Ms Christensen notified the Casino that she was convicted of larceny as a juvenile. She claims that, although she was qualified for the position, Adelaide Casino rejected her application because of her criminal record.

Employment for the position involved a five stage selection process. Ms Christensen completed the pre-testing session, interview and reference checks. However, she was unsuccessful at the fourth stage which involved the certification by the Casino's security representative pursuant to the Casino Act 1997 (SA) that she was a "fit and proper person" to be employed. The final stage is licensing approval by the Liquor and Gaming Commissioner.

The complaint is denied by the respondent. In summary, the respondent claims that the decision was not made on the basis of Ms Christensen's criminal record but on other grounds, namely the nature or circumstances of the offence: at age 16, on her own and not under peer pressure, she stole two bottles of alcohol from a bottle shop, she was then living with friends who had stolen goods in the house and a police investigation regarding those goods led to her being charged. The Casino did not proceed with her employment as it could not be satisfied that she met the requirements of trustworthiness and good character.

5. Relevant legal framework

Section 3(1) of the HREOC Act defines "discrimination" as follows:

Discrimination, except in Part IIB, means:

(a) any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin that has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation; and

(b) any other distinction, exclusion or preference that:

(i) has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation; and
(ii) has been declared by the regulations to constitute discrimination for the purposes of this Act;

but does not include any distinction, exclusion or preference:

(c) in respect of a particular job based on the inherent requirements of the job; or."

Regulation 4(a)(iii) of the Regulations provides that a distinction, exclusion or preference made on the ground of criminal record will constitute discrimination for the purposes of sub-paragraph (b)(ii) of the definition of "discrimination" in section 3(1) of the HREOC Act . [1]

Section 31(b) of the HREOC Act confers on the Commission the function of inquiring into "any act or practice, including any systemic practice, that may constitute discrimination" and, where the Commission considers it appropriate to do so, to endeavour, by conciliation, to effect a settlement of the matters that gave rise to the inquiry.

Section 31(b)(ii) provides that where the Commission is of the opinion that the act or practice constitutes discrimination, and has endeavoured without success to reach a settlement, it will to report to the Minister in relation to the inquiry.

Section 35 of the HREOC Act sets out the requirements of the Commission's report and the recommendations that may be made. Section 35(2) provides:

Where, after an inquiry into an act done or practice engaged in by a person, the Commission finds that the act or practice constitutes discrimination, the Commission:

(a) shall serve notice in writing on the person setting out its findings and the reasons for those findings;

(b) may include in the notice any recommendations by the Commission for preventing a repetition of the act or a continuation of the practice;

(c) may include in the notice any recommendation by the Commission for either or both of the following:

(i) the payment of compensation to, or in respect of, a person who has suffered loss or damage as a result of the act or practice;
(ii) the taking of other action to remedy or reduce loss or damage suffered by a person as a result of the act or practice;

6. Conciliation

In accordance with section 31(b)(i) of the HREOC Act the Commission attempted to effect a settlement between the parties. The attempt at conciliation was unsuccessful.

7. The inquiry process

On 25 September 2001, I provided to the parties my 'Report of an unconciliable complaint under the Human Rights and Equal Opportunity Commission Act 1986'. That Report contained my preliminary findings in respect of whether the complainant had been discriminated against within the terms of section 3(1) of the HREOC Act. I formed the preliminary view that the respondent had discriminated against the complainant within the terms of section 3(1) on the basis of her criminal record.

In reaching that view I made the following preliminary findings:

  • as the complainant was applying for a position of bar attendant with the respondent, the relationship between the parties is one that falls within the definition of "employment or occupation";
  • although the respondent asserted that it was not the larceny offence in itself that it considered relevant but the complainant's explanation of her conduct and the circumstances in which the offence took place, I considered this was an arbitrary distinction and that it is not possible to separate the circumstances of the offence from the criminal record itself and that accordingly there was an exclusion on the grounds of the complainant's criminal record;
  • as the complainant lost the opportunity to be offered the position of bar attendant at the Casino, the act complained of impaired the complainant's equality of opportunity;
  • the complainant's criminal offence would not prevent her from performing the technical tasks of a bar attendant;
  • the complainant's criminal record was not relevant to the position of bar attendant. I did not consider that her larceny offence indicated that she represented a security risk in handling cash and accessing and maintaining alcohol stocks. The offence did not occur in the context of her employment and the complainant subsequently worked in the hospitality industry, including as a bar manager. Further, I did not consider that the larceny offence indicated that the complainant was not trustworthy and of good character as required of Casino employees seeking licensing approval under the Casino Act 1997 (SA). The offence occurred eight years prior to the complainant's job application when she was a juvenile and, there was no evidence before me that she has committed further offences. Accordingly, I was of the view the complainant's criminal record did not mean that she could not perform the inherent requirements of the job of bar attendant.

Having provided the parties with my preliminary findings, I invited them, pursuant to sections 33 and 27 of the HREOC Act, to make further submissions orally and, or, in writing. On 15 November 2001 the respondent made a further written submission. The complainant did not provide a further written submission. Neither party sought to make an oral submission.

On 20 March 2002 I issued a notice of my findings and recommendations in relation to the complaint under section 35 of the HREOC Act.

8. Matters for consideration

In deciding whether there has been "discrimination" within the terms of section 3(1) of the HREOC Act (read with regulation 4 of the Regulations), three elements must be considered in the context of this case:

  • whether there was an act or practice within the meaning of section 30(1) of the HREOC Act ;[2]
  • whether that act or practice involved a distinction, exclusion or preference that was made on the basis of the complainant's criminal record; and
  • whether that distinction, exclusion or preference had the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation.

I must also consider whether that distinction, exclusion, or preference was based on the inherent requirements of the job. (See paragraph (c) of the definition of discrimination in section 3(1) of the HREOC Act.)

It is not contested that Ms Christensen has a criminal record (a conviction for larceny) details of which were before the respondent when considering her application for employment and that there was an act or practice which arose in the course of employment, namely the decision to reject Ms Christensen's application for employment.

The respondent does contest, however, that it made its decision on the basis of the complainant's criminal record.

If I find that the respondent did make the decision on the basis of criminal record and that the decision involved a distinction, exclusion or preference that had the effect of nullifying or impairing equality of opportunity or treatment in employment, then I must also decide whether that distinction, exclusion or preference was based on the inherent requirements of the job.

9. Submissions

Ms Christensen asserts that her application was rejected because of her criminal record. She says that she advised the Adelaide Casino of the conviction at the time of her application. She states that she was subsequently granted an interview and was told she was successful and that she needed to have her fingerprints taken the next day. She says that after having had her fingerprints taken she was required to return to the Casino to fill in the necessary forms. She says that after completing this process she was told by the Human Resources Manager that her juvenile offence may be a concern with security. Ms Christensen says that when she returned to the Casino the following day she was told they could not pursue her employment due to their concerns.

Ms Christensen submits, in essence, that the Adelaide Casino was unjustified in rejecting her application having regard to: the fact that she committed the offence when she was a juvenile and that a significant period of time had passed since then (approximately 7 or 8 years); her relevant work history (including bar management and the handling of large amounts of money); the availability of referees to attest to her character; and, that she is a responsible person for the purposes of the Liquor Licensing Act 1997 (SA). Section 4 of that Act provides that a "responsible person for licensed premises means a person who is . . responsible for supervising and managing the business conducted under the licence".

The outcome sought by Ms Christensen is that the Adelaide Casino provide an apology acknowledging that her criminal record was not relevant to the position she applied for, that she be welcome to apply for employment at the Casino and that her criminal record not be taken into consideration.

The Adelaide Casino states the conviction itself was not fatal to Ms Christensen's application. Rather, it was the nature or circumstances of the offence that were of concern. Namely, she committed the offence at age 16 (approximately 7 years earlier), she stole two bottles of alcohol from a bottle shop, she was on her own and not under peer pressure to steal the items, she was then living with friends who had stolen goods in the house and a police investigation regarding those goods led to her being charged as the police had her description from the bottle shop.

In its letter to me of 19 February 2001 responding to the complaint, the Adelaide Casino stated:

It is reiterated that Ms Christensen's application did not proceed beyond step 4 of the selection process, due to the nature of the business and the security representative unable to certify that they believed Ms Christensen to be a "fit and proper person" to be employed at Adelaide Casino ...

Although Ms Christensen asserts that she was deemed unsuccessful due to her criminal record, it should be noted that . . consideration was given to the events and nature of the larceny offence together with the requirements of the Bar Attendant role and the risks associated with employing Ms Christensen into the Casino business, not strictly based on the fact she had a criminal record.

. we are bound by the Casino Act 1997 which indicates that we, as the licensee must not permit a person to occupy or work in a position of responsibility unless the person is approved as a suitable person to work in a position of responsibility of the relevant class.

The Adelaide Casino stated that the absence of a criminal record is not necessarily an inherent requirement of the position for which Ms Christensen applied. It stated:

A determination was made not to proceed with Ms Christensen's application for a licence, particularly given the nature of our business which requires Management to be satisfied that a prospective employee can be trusted and possess a character which can be held in high regard. We regard these matters as inherent requirements for all positions at the Adelaide Casino. Unfortunately, the nature of the larceny charge as related to Ms Christensen did not satisfy Management that she met those requirements.

In relation to the issue of inherent requirements the Adelaide Casino referred to particular aspects of bar attendant duties. They are:

  • Cash handling duties, including collecting money from customers, transporting money from register/till areas to lock up.
  • Maintaining alcoholic beverage stocks ... transporting stocks from the storage areas to bars.

In its submission of 15 November 2001, following the preliminary findings, the Adelaide Casino stated:

First, our client disagrees with the preliminary finding that there was 'an arbitrary distinction' between the larceny offence in itself and the complainant's explanation of her conduct and the circumstances in which the offence took place. Merely because Ms Christensen had a conviction was not in itself fatal to her application. It was her conduct as she explained it which was taken into account. The disclosure of the offence simply drew the matter to our client's attention, leading to the subsequent explanation by Ms Christensen of what had taken place.

Secondly, our client vigorously disagrees with the suggestion that her conduct was not relevant to the position of bar attendant. In this regard, we note that while the preliminary finding refers to the complainant's criminal record, our client regards the conduct as the relevant matter. Presumably the difference arises from the earlier rejection of that distinction as an arbitrary one.

The preliminary report asserts that the offence did not occur in the context of the complainant's employment. By this, we assume that what is meant is that the conduct in issue was not directed against her then employer. Our client does not consider that to be a relevant distinction. What was relevant was that Ms Christensen has demonstrated that she was prepared to be dishonest and untrustworthy. Whether she was a customer or an employee does not appear to be a material distinction. Rather, she demonstrated that she was prepared to be dishonest when given the opportunity, without any peer pressure.

Thirdly, our client disagrees with the view that her conduct (again, the preliminary finding refers to the larceny offence rather than the conduct, which our client considered, and still considers, to be the relevant matter) did not indicate that the complainant was not trustworthy. The fact is that Ms Christensen acknowledged that she had stolen. Trust is a matter difficult to gain, and readily lost. The circumstances of her acknowledgement of stealing were such that our client was not prepared to place trust in her. Our client does not consider that it has to wait until it catches someone stealing from it before it can form a legitimate view that an individual is not trustworthy. Nor did our client consider that the circumstances disclosed by Ms Christensen indicated that she was of good character.

10. Findings

As outlined previously, in deciding whether the matter complained of constitutes discrimination within the terms of section 3(1) of the HREOC Act I must consider the following issues:

10.1 Whether there was an act or practice in terms of the HREOC Act

Ms Christensen applied for employment as a bar attendant at Adelaide Casino. Her application was unsuccessful. I find that the decision to reject her application was an act within the meaning of the HREOC Act.

10.2 Whether there was a distinction, exclusion, or preference on the basis of criminal record

"On the basis of"

I need to be satisfied on the balance of probabilities that the rejection of Ms Christensen's application for employment was on the basis of criminal record.

There appears to be no direct case law to assist in the interpretation of the words "on the basis of". In considering the expression "based on", in a similar definition of discrimination under section 9(1) of the Racial Discrimination Act 1975 (Cth) [3], the Federal Court held that the words were to be equated with the phrase "by reference to", rather than the more limited "by reason of": Victoria v Macedonia Teacher's Association of Victoria Inc (1999) 91 FCR 47.

"Criminal Record"

The term "criminal record" is not defined in the Regulations nor in the HREOC Act, nor is any distinction drawn between spent and unspent convictions.

In considering how to define this term I have had regard to decisions dealing with the interpretation of remedial legislation such as the HREOC Act.

In IW v City of Perth (1997) 191 CLR 1 Brennan C J and McHugh J discussed ".the rule of construction that beneficial and remedial legislation, like the Act [ie the Equal Opportunity Act 1984 (WA)], is to be given a liberal construction". Their Honours said (at 12),

It is to be given 'a fair, large and liberal' interpretation rather than one which is 'literal or technical'. Nevertheless, the task remains one of statutory construction. Although a provision of the Act must be given a liberal and beneficial construction, a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural.

In that matter Kirby J noted (at 48),

The purpose of anti-discrimination legislation, such as the Act, is to ensure that, within the areas prescribed by Parliament, equals are treated equally and human rights are not violated by reference to inappropriate or irrelevant distinctions. Especially where important human rights are concerned, protective and remedial legislation should not be construed narrowly lest courts become the undoers and destroyers of the benefits and remedies provided by such legislation. Courts will not unduly stretch the language of such legislation. But they will be very slow to find that the effect of something which is discriminatory falls outside the ambit of the legislation, given its purpose. This is especially so where a complainant, who can establish unequal treatment, falls within the category of persons for whom anti-discrimination legislation has apparently been enacted. It is legitimate in giving effect to such legislation, to keep in mind its broad purposes and, to the full extent that the text permits, to ensure that the Act achieves its objectives and is not held to have misfired. To the extent that, in legislation such as the Act, courts adopt narrow or pernickety approaches, they will force parliaments into expressing their purposes in language of even more detail and complexity. This will increase the burden and costs of litigation. It will obscure the broad objectives of such statutes and frustrate their achievement.

In my view, the provisions of the HREOC Act should be given a liberal construction. I consider it would be unduly restrictive to define the term "criminal record" as just meaning the conviction as recorded. In my view, the term encompasses not only the actual record of a conviction but also the circumstances of the conviction including the underlying conduct . [4]

The submission of Adelaide Casino would suggest that the term "criminal record" should be confined to the actual record of the conviction itself, thereby drawing a distinction between the record and the circumstances of the offence. In my view, such an approach involves a construction which, "enables the ascription of negative stereotypes or the avoidance of individual assessment [which will result in] the essential object of the Act to promote equality of opportunity in employment [being] frustrated": Commonwealth v Bradley per Black CJ (Bradley's case) [5]

If I was to permit such a distinction to be drawn between a person's criminal record and the circumstances in which the offence was committed, a respondent could avoid a complaint of criminal record discrimination by simply asserting the discrimination was on the basis of the circumstances of the offence, not the fact of the criminal record.

Application of these principles to Ms Christensen's case

The Adelaide Casino contends that it was the nature of the conduct involved in the offence and the circumstances surrounding the offence Ms Christensen committed that caused it to reject her application.

As I have indicated above, I consider that the circumstances of the conviction, including the underlying conduct, is encompassed within the concept of criminal record for the purposes of s.3(1) of the HREOC Act.

I am satisfied that in this case a distinction was made "on the basis of" criminal record.

10.3 Whether the distinction, exclusion or preference nullified or impaired equality of opportunity or treatment in employment or occupation.

For an act or practice to be discriminatory, the HREOC Act requires that the complainant show that the distinction, exclusion or preference has had the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation, and that the distinction, exclusion or preference was not based on the inherent requirements of the job. Ms Christensen's application was rejected at the fourth stage of the interview process due to her criminal record. She was not able to proceed to the final stage. The exclusion of Ms Christensen from the final stage of selection on the basis of her criminal record has had the effect of nullifying equality of opportunity or treatment in employment.

10.4 Whether the distinction, exclusion or preference was based on the inherent requirements of the job

Not all distinctions, exclusions or preferences are discriminatory within the meaning of the HREOC Act. Under paragraph (c) of the definition of discrimination in section 3(1) of the HREOC Act, a respondent does not discriminate on the basis of criminal record if the distinction, exclusion or preference is based on the inherent requirements of the job.

Relevant international jurisprudence

Paragraph (c) reproduces, in substance, article 1(2) of the Convention Concerning Discrimination in Respect of Employment and Occupation ("ILO 111"). The HREOC Act was "introduced to be the vehicle by which Australia's obligations under .[ILO 111] .are implemented" [6] . As such, paragraph (c) should be construed in accordance with the construction given in international law to article 1(2) of ILO 111. [7]

The Governing Body of the International Labour Organisation (ILO) has created a committee known as the Committee of Experts on the Application of Conventions and Recommendations (the "Committee of Experts). It is "orthodox" to rely upon the expressions of opinion of the Committee of Experts for the purposes of interpreting ILO 111 . [8]

The meaning of article 1(2) was discussed in Chapter 3 of the Committee of Experts' Special Survey on Equality in Employment and Occupation 1996:

Under Article 1, paragraph 2 of Convention No 111, "any distinction, exclusion or preference in respect of a particular job based on the inherent requirements thereof shall not be deemed to be discrimination". This exception must be interpreted restrictively. When qualifications are required for a particular job, it may not be simple to distinguish between what does and what does not constitute discrimination. It is often difficult to draw the line between bona fide requirements for a job and the use of certain criteria to exclude certain categories of workers. In order to determine the real scope of this exception, the following two points should be examined: first, the concept of a "particular job" and, second, the definition of "inherent requirements" of a particular job.

It appears from the preparatory work for the Convention that the concept of "a particular job" refers to a specific definable job, function or task. The necessary qualifications may be defined as those required by the characteristics of the particular job, in proportion to its inherent requirements. A qualification may be brought to bear as an inherent requirement without coming into conflict with the principle of equality of opportunity and treatment. In no circumstances, however, may the same qualification be required for an entire sector of activity. Systematic application of requirements involving one or more grounds of discrimination envisaged by Convention 111 is inadmissible; careful examination of each individual case is required.

Similarly, in an ILO Commission of Inquiry regarding a complaint made against the Federal Republic of Germany [9], it was stated:

It needs to be borne in mind that Article 2, para 1, [of the Convention] is an exception clause. It should therefore be interpreted strictly, so as not to result in undue limitation of the protection which the Convention is intended to provide.

Identifying "inherent requirements"

The meaning of the term "inherent requirements" has also been considered by both the Federal Court and the High Court.

In Qantas Airways v Christie (1998) 193 CLR 280, the High Court considered the meaning of the term "inherent requirements of the particular position" in section 170DF(2) of the Industrial Relations Act 1988 (Cth). At 284, Brennan CJ stated:

The question whether a requirement is inherent in a position must be answered by reference not only to the terms of the employment contract but also by reference to the function which the employee performs as part of the employer's undertaking and, except where the employer's undertaking is organised on a basis which impermissibly discriminates against the employee, by reference to that organisation. In so saying, I should wish to guard against too final a definition of the means by which the inherent nature of a requirement is determined. The experience of the courts of this country in applying anti-discrimination legislation must be built case by case. A firm jurisprudence will be developed over time; its development should not be confined by too early a definition of its principles.

At 295, Gaudron J stated:

It is correct to say, as did Gray J in the Full Court, that an inherent requirement is something that is essential to the position. And certainly, an employer cannot create an inherent requirement for the purposes of s 170DF(2) by stipulating for something that is not essential or, even, by stipulating for qualifications or skills which are disproportionately high when related to the work to be done. But if a requirement is, in truth, essential, it is irrelevant that it derives from the terms of the employment contract or from the conditions governing the employment relationship.

Much of the argument in this Court was directed to the question whether the expression "inherent requirements" in s 170DF(2) should be construed broadly or narrowly. It was put on behalf of Mr Christie that it should be construed narrowly because it is an exception to or exemption from the prohibition on termination on discriminatory grounds and a broad construction would be contrary to the evident purpose of s 170DF, namely, to prevent discriminatory conduct. I doubt whether s 170DF(2) is an exception or exemption of the kind which the argument assumes. Rather, I think the better view is that sub-s (2) is, in truth, part of the explication of what is and what is not discrimination for the purposes of s 170DF of the Act. However, that issue need not be explored for there is nothing to suggest that the expression "inherent requirements" in s 170DF(2) is used other than in its natural and ordinary meaning. And that meaning directs attention to the essential features or defining characteristics of the position in question.

At 316, Gummow J said that the term "inherent" suggests "an essential element of that spoken of rather than something incidental or accidental".

Similarly, in X v The Commonwealth (1999) 200 CLR 177, Gummow and Hayne JJ stated that the inherent requirements of employment are those which are "characteristic or essential requirements of the employment as opposed to those requirements that might be described as peripheral". Their Honours went on to say (at 208):

It follows from both the reference to inherent requirements and the reference to particular employment that . . . it is necessary to identify not only the terms and conditions which stipulate what the employee is to do or be trained for, but also those terms and conditions which identify the circumstances in which the particular employment will be carried on. Those circumstances will often include the place or places at which the employment is to be performed and may also encompass other considerations. For example, it may be necessary to consider whether the employee is to work with others in some particular way. It may also be necessary to consider the dangers to which the employee may be exposed and the dangers to which the employee may expose others.

In that same case, McHugh J stated (at 189-90):

Unless the employer's undertaking has been organised so as to permit discriminatory conduct, the terms of the employment contract, the nature of the business and the manner of its organisation will be determinative of whether a requirement is inherent in the particular employment. But only those requirements that are essential in a business sense (including where appropriate public administration) or in a legal sense can be regarded as inhering in the particular employment. The Commission must give appropriate recognition to the business judgment of the employer in organising its undertaking and in regarding this or that requirement as essential to the particular employment. Thus, in Christie, Qantas had no obligation to restructure the roster and bidding system which it utilised for allocating flights to its pilots in order to accommodate Mr Christie. In the end, however, it is for the Commission, and not for the employer, to determine whether or not a requirement is inherent in a particular employment.

It follows from the cases of X and Christie that identification of inherent requirements requires one to take into account the surrounding context of the particular position, employment or job and not merely the physical or mental capability of the employee to perform a task.

"Based on"

Once the inherent requirements of the particular job have been identified I must decide whether the relevant exclusion, distinction or preference is "based on" those inherent requirements.

In Commonwealth v Human Rights and Equal Opportunity Commission and Others , [10] Wilcox J interpreted the phrase as follows:

In the present case, there are policy reasons for requiring a tight correlation between the inherent requirements of the job and the relevant "distinction", "exclusion" or "preference". Otherwise, as Mr O'Gorman pointed out, the object of the legislation would readily be defeated. A major objective of anti-discrimination legislation is to prevent people being stereo-typed; that is, judged not according to their individual merits but by reference to a general or common characteristic of people of their race, gender, age etc, as the case may be. If the words "based on" are so interpreted that it is sufficient to find a link between the restriction and the stereo-type, as distinct from the individual, the legislation will have the effect of perpetuating the very process it was designed to bring to an end.

The Full Court affirmed that approach in Bradley's case. In particular, Black CJ discussed the phrase "based on" as follows (at 235 [35]):

In determining how the expression "based on" is to be interpreted in the present context, regard must be had to the objects of the Act. The Act was introduced to be the vehicle by which Australia's obligations under the Discrimination (Employment and Occupation) Convention 1958 (ILO Convention No. 111) are implemented (Explanatory Memorandum to the Human Rights and Equal Opportunity Bill 1985 (Cth), outline). One of the primary purposes of the Act consistent with the purpose of the ILO Convention itself - is the promotion of equal opportunity in employment.

The Chief Justice continued (at 235 [37]):

It is for this reason that I would reject the appellant's argument regarding the expression "based on" in par (c) of the definition of "discrimination". The essence of that argument is that "based on" requires no more than a logical link, with the result that the exclusion of a category of persons from a particular job will not be discriminatory under the Act if a logical link can be shown between that exclusion and the inherent requirements of the job. In my view, to interpret par (c) in this way would be to defeat the Act's object of promoting equality of opportunity in employment by, in effect, permitting the assessment of persons' suitability for a particular job on grounds other than their individual merit. The nebulousness of notions of "logic" in this area makes it an inappropriate test for discrimination.

He further added (at 237 [40]):

In my view, the definition adopted by Wilcox J - that is, as requiring a connection that is "tight" or "close" - sits easily with the language of par (c) and promotes the objects of the Act by closing a path by which consideration of individual merit may be avoided.

"Onus"

Finally, I note that the respondent bears the burden of persuasion on this issue . [11]

Application of these principles to Ms Christensen's case

The principles drawn from the cases require three questions to be addressed: What is the particular job? What are the inherent requirements of that job? Was the exclusion on the basis of criminal record based on the inherent requirements of the job?

What is the particular job?

The "Position Description and Specification/job Role" for the position of bar attendant states the primary focus of the role is:

To deliver high quality customer service to Adelaide Casino customers through the use of excellent customer service ethics and the provision of efficient and timely food and beverage services.

The Adelaide Casino's letter to the Commission of 19 February 2001 in response to the complaint described the overall duties of a bar attendant in similar terms.

"Key accountabilities" of the position are listed in the Position Description to include:

  • exceed customer expectations in providing prompt and courteous food and beverage services
  • represent Adelaide Casino in a positive, professional and friendly manner to customers and staff
  • provide assistance and up to date information to customers on Adelaide casino facilities and promotional packages
  • ensure the provision of service standards that develop and encourage repeat business
  • efficiently respond to customer complaints.

The key accountabilities of the position are also stated to include a variety of tasks associated with the provision of a food and beverage service.

The Casino noted that particular aspects of bar attendant duties are:

  • Cash handling duties, including collecting money from customers, transporting money from register/till areas for lock up. Counting the cash float.
  • Maintaining alcoholic beverage stocks. Transporting stocks from storage areas to bars.

I am of the view that the position of bar attendant entails the provision of high quality customer service to customers of the Casino including the provision of a food and beverage service and the handling and maintenance of money and beverage stocks in association with that service.

What are the inherent requirements of that job?

In its letter to the Commission of 19 February 2001 the Casino stated that, "It is not necessarily an inherent requirement for the absence of a criminal record but rather the details of Ms Christensen's charge presented particular concern to both Management and Security representatives."

It stated that Casino Act 1997 indicated that the Casino as licensee must not permit a person to occupy or work in a position of responsibility unless the person is approved as a suitable person to work in a position of responsibility of the relevant class.

It stated trustworthiness and good character are inherent requirements of the position.

It is my view that having regard to regard to the tasks to be performed in the position of bar attendant, trustworthiness and good character are inherent requirements of that job.

Was the exclusion on the basis of criminal record based on the inherent requirements of the job?

The Adelaide Casino has formed the view that, having regard to the circumstances surrounding Ms Christensen's conviction, she is not a person who is trustworthy and of good character. The relevant submissions made on behalf of the Casino stated:

... our client disagrees with the view that her conduct (again, the preliminary finding refers to the larceny offence rather than the conduct, which our client considered, and still considers, to be the relevant matter) did not indicate that the complainant was not trustworthy. The fact is that Ms Christensen acknowledged that she had stolen. Trust is a matter difficult to gain, and readily lost. The circumstances of her acknowledgement of stealing were such that our client was not prepared to place trust in her. Our client does not consider that it has to wait until it catches someone stealing from it before it can form a legitimate view that an individual is not trustworthy. Nor did our client consider that the circumstances disclosed by Ms Christensen indicated that she was of good character.

What was relevant was that Ms Christensen has demonstrated that she was prepared to be dishonest and untrustworthy.

In accordance with Bradley's case, discussed above, the issue for consideration is whether there is a tight or close connection between the inherent requirements of the job and the relevant distinction, exclusion or preference. That is, is there a tight or close connection between the requirement that the holder of the position of bar attendant be trustworthy and of good character and the exclusion, distinction or preference that I have found was applied to the complainant on the basis of her criminal record?

In my view the connection was not sufficiently close. There was information available to the respondent regarding Ms Christensen's trustworthiness and ability to perform the inherent requirements of the job. Ms Christensen's conviction occurred some seven or eight years before she made her application for employment with Adelaide Casino. She was about 15 years of age at the time of her conviction. I note there were factors the Casino didn't take into account that would seem to me far more relevant to, and probative of, the question of whether she was trustworthy and of good character, than her criminal record. Those factors include the following: subsequent to the conviction she has worked in positions of trust in the hospitality industry; she states she has experience with bar management and has handled large amounts of money in previous employment; her previous position was as a bar manager/waitress; and, her application for employment noted that she was a 'responsible person' for the purposes of the Liquor Licensing Act 1997 (SA). There has been no suggestion that she has been anything but trustworthy and honest in these positions and, I note that in her application she has provided the names of three character references, two of whom are bar managers. In addition, she informed the Adelaide Casino of the offence without hesitation.

I am of the view that in the circumstances of this complaint the connection between the rejection of Ms Christensen's application on the basis of her criminal record and the inherent requirements of trustworthiness and good character is not tight or close and therefore the test in Bradley's case is not satisfied.

11. Conclusion

For the reasons set out above, I am therefore of the view that Ms Christensen has been discriminated against on the basis of her criminal record.

12. Recommendation

Having found that Ms Christensen was discriminated against, I recommend pursuant to section 35 of the HREOC Act that the respondent apologise to Ms Christensen for having rejected her application for employment as a bar attendant because of her juvenile conviction and not further exclude her from applying for employment because of that conviction.

13. Actions taken by the respondent as a result of the findings and recommendations

Under s.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 22 March 2002 the Commission wrote to the respondent to seek its advice at to what action it had taken or proposed to take as a result of the findings and recommendations. On 11 April 2002 Minter Ellison, Lawyers, the solicitors for the respondent replied:

Thank you for your letter dated 22 March 2002.

The Casino has considered the findings of the President in relation to the complaint of Ms Christensen.

With great respect, the Casino maintains its stance that there was no inappropriate discrimination in the Casino's treatment of Ms Christensen.

The Casino maintains its stance that it sees nothing inappropriate with expecting employees to be trustworthy and of good character. The Casino regards that as consistent with its statutory obligations.

While the Casino agrees that trustworthiness and good character are inherent requirements of the position of Bar Attendant, the Casino's view is that the circumstances disclosed by Ms Christensen were inconsistent with those inherent requirements.

In that light the Casino maintains the view set out in our letter of 15 November 2001. Accordingly, it does not propose taking any action as a result of the findings and recommendations of the President.


1. In Commonwealth of Australia v Human Rights & Equal Opportunity Commission and Hamilton (2000) 180 ALR 635 (Hamilton's case) Katz J at 638 [9] said "As contemplated by subpar (b)(ii) of the definition of "discrimination", regulations have been made (under s 50 of the Act) declaring certain distinctions, exclusions or preferences that have the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation, additional to the distinctions, exclusions or preferences set out in par (a) of the definition, to constitute "discrimination" for the purposes of the Act: see the Human Rights and Equal Opportunity Commission Regulations (Cth) ("the Regulations"). Among such distinctions, exclusions or preferences are (and have been since 1 January 1990: see reg 2 of the Regulations) those "made ... on the ground of ... age": see subpar 4(a)(i) of the Regulations. (It is not clear to me why that provision uses the word "ground" instead of the word "basis", the latter word being the one which is used at the equivalent point in par (a) of the definition of "discrimination" in subs 3(1) of the Act. For present purposes, I will proceed on the basis (or ground (!)) that the words were intended to be interchangeable."

2. Section 30(1) provides:
"(1) In this Division-"act" includes an act done-

(a) by or on behalf of a State or an authority of a State;
(b) under a law of a State;
(c) wholly within a State; or
(d) partly within a State, to the extent to which the act was done within a State;"practice" includes a practice engaged in-

(a) by or on behalf of a State or an authority of a State;
(b) under a law of a State;
(c) wholly within a State; or
(d) partly within a State, to the extent to which the practice was or is engaged in within a State."

3. Section 9(1) provides:
9(1) It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

4. That construction is consistent with the recommendations made by the Australian Law Reform Commission ("the ALRC") in Spent Convictions Report, 1987, No 37 AGPS p.53 [78]. In that report the ALRC recommended that the Regulations cover "discrimination" on the ground of criminal record, or of facts relating to a conviction. The Explanatory Statement accompanying the Regulations makes clear that the Regulations were intended to implement that recommendation. See also Woodward Stores (British Columbia) Ltd v McCartney (1983) 4 CHRR D/1325 at D/1327 where British Columbia legislation dealing with criminal record discrimination was given a similarly wide construction, pursuant to which "charge" was taken to mean "the things specified in the information and the circumstances surrounding them" rather than simply "the nature of the offence charged".

5. (1999) 95 FCR 218 at 235 [36]

6. Ibid at 235 [35]

7. Hamilton's case at 642 [31] and following

8. Ibid at 644 [36]

9. (1987) 70 ILO Official Bulletin, Ser B, Supp. 1

10. (1998) 158 ALR 468 at 482

11. Hamilton's Case at 652 [61]

 

Last updated 25 September 2002.