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Cleaning up our acts: A socio-legal appraisal of Western Australia's need for additional criminal record employment discrimination legislation

Fielder, Anne (2020) Cleaning up our acts: A socio-legal appraisal of Western Australia's need for additional criminal record employment discrimination legislation. Masters by Research thesis, Murdoch University.

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Abstract

Employment is a central ingredient to motivate ex-offenders to move away from criminal behaviour. However the stigmatisation of criminal records contributes to some employers’ propensity to treat ex-offenders less favourably in recruitment decisions; essentially discriminating against such candidates.

Whilst there are situations in which it would be legitimate to deny employment to an individual with a particular offending history, employers often use the existence of a criminal record as a proxy measure of a person’s overall ‘fitness to work’ without considering if the ex-offender status bears a close nexus to the duties or conditions required by the specific job. This form of illegitimate discrimination operates as a barrier to ex-offender employment opportunity.

In the Western Australian jurisdiction, ex-offender employment opportunity is a topical issue as the annual prisoner population has continued to increase in recent years. However at present, Western Australia relies on a complex matrix of intersecting federal and State level laws to regulate criminal record employment discrimination.

As such, the purpose of this thesis is to critically evaluate whether this fragmentary legal framework satisfactorily addresses employment discrimination for Western Australian ex-offenders and examines whether socio-legal justifications exist to advocate for additional regulation at a State level.

To do so, I develop a unique ‘adequacy criterion’ based on principles of access to justice and behaviour change theory. The application of the ‘adequacy criterion’ establishes that the existing legislative framework creates a ‘discrimination window’ whereby many Western Australian ex-offenders are left without means of redress when experiencing illegitimate unfavourable treatment in recruitment. Additionally, the investigation finds that much of the existing legislation fails to limit employers’ ability to demand broad criminal record checks.

The thesis will conclude that whilst statutory intervention is required to close the ‘discrimination window’ and make illegitimate criminal record employment discrimination specifically unlawful in Western Australia, employer stakeholder concerns must be considered during the legislation drafting stage. Potential law reform recommendations will be offered based on the socio-legal appraisal of the current regime.

Item Type: Thesis (Masters by Research)
Murdoch Affiliation(s): Law and Criminology
Supervisor(s): Riegler, Anahita and Kenny, Mary
URI: http://researchrepository.murdoch.edu.au/id/eprint/59114
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