For the past 35 years, community legal centres have been at the forefront of developing innovative strategies to provide genuine access to justice for disadvantaged Australians. Community legal centres deliver a mix of individual client services, community legal education and law reform activities. Centres recognise that access to justice extends beyond simply advising clients, for example, that they have no recourse if they have been unfairly sacked from their employment. It extends to advocating for laws that appropriately protect clients against unfair dismissal. In the interests of our clients, community legal centres advocate for change when the law is not working properly or fairly. Our family law system, our family violence laws and protocols, the way we deal with deaths in custody, the way our courts treat victims of sexual abuse, our credit and debt laws, our infringements scheme and many other important tenets of the legal system have been shaped for the better by the law reform contributions of community legal centres.
If I were Attorney General, I would actively encourage community legal centres to continue their vital law reform and policy work and I would commit funding to enable them to do it effectively. I might get frustrated if a government-funded centre criticised one of my government’s policies, but I would recognise that the debate would be good for testing the merits of our ideas and good for democracy.
I would then draw a deep breath and turn to my long list of policies.
Currently, there is no Federal or Victorian legislation prohibiting discrimination on the grounds of an irrelevant criminal record. It is perfectly lawful for an employer to refuse to hire or sack a worker for a criminal record that has got nothing to do with the particular job. So, a real estate agency can refuse to hire a receptionist for a possession of cannabis offence from 5 years ago and a government department can refuse to hire a telephone operator because of a drink driving offence.
Research suggests that the majority of people with a criminal record offend only once, when they are young, and never offend again. Yet, even a single offence on a criminal record can generate strong negative prejudices about the risk of future offending, even if many crime-free years have passed since that offence. Discrimination on these grounds discourages rehabilitation and ultimately reduces community safety.
We need to strike the right balance between the risk of reoffending and rehabilitation.
Where an offence is relevant to the job, for example, an applicant with dishonesty offences seeking work in bank, or a sex offender applying for work with children, an employer should obviously be able to refuse employment. But where the offence has nothing to do with the job, discrimination should be prohibited. As Attorney General, I would ban discrimination on the grounds of an irrelevant criminal record.
My experiences as an employment lawyer for both employers and workers have made me acutely aware that loss of employment can have an enormous detrimental impact on individuals, their family and the community. Australian laws should protect against unfair loss of employment.
Currently, employees in businesses with 100 or less employees are exempt from unfair dismissal laws. Yet, many of the worst unfair dismissal cases I have seen have involved small businesses who either did not know the law or did not care. Unfair dismissal laws are not onerous. They require employers to do only two things; have a good reason for the dismissal and carry out the dismissal in a fair way. No employer, whatever their size, can seriously argue that they need the right to sack their employees unfairly.
As Attorney General, I would act to have my government reinstate unfair dismissal laws for all employees and I would dedicate resources towards providing proper free advice services for small businesses to assist them to comply with their obligations.
I would then introduce a Human Rights Act in Australia and provide a right to sue for damages for breaches of human rights. I would recognise that depriving prisoners of the right to vote is counter productive to rehabilitation and their responsible participation in society and so I would restore that right. I would provide legal aid funding for civil law matters. I would look at the feasibility of providing tax deductions for the value of pro bono work done by private law firms and barristers.
In Victoria, I would legislate to make Victoria Police vicariously liable for the unlawful acts of its officers committed in the course of duty in the same way that any other employer is liable for the wrongs of employees in the course of their employment. I would expand the civil law jurisdiction of VCAT to cover motor vehicle accidents, fencing disputes, personal civil disputes and appeals against prison Governor’s Hearings. I would strengthen the power of the Coroners Court to make recommendations and I would make it compulsory for Government departments to report back on the implementation of recommendations. I would set up a non-litigious scheme along the lines of the Tasmanian Government’s recent initiative to provide acknowledgement and compensation for past victims of sexual abuse while in state care.
I would then retire and go back to volunteering at a community legal centre to remember what life was like at the coal face of legal service delivery.
Hugh de Kretser is the Executive Officer of the Federation of Community Legal Centres (Vic) Inc