Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 39

Discrimination Act 1991 ss 7, 8, 10, 70

Human Rights Commission Act 2005 ss 53A, 53C, 53CA

Public Sector Management Act s 68

1. The respondent did not discriminate against the complainant contrary to the provisions of the Discrimination Act 1991. It did not act to the detriment of the complainant on the basis of an irrelevant criminal record when it withdrew an offer of employment previously made to her.

1. The Tribunal makes an order pursuant to section 39 of the ACT Civil and Administrative Tribunal Act 2008 to make the complainant's identity private.
2. The application is otherwise dismissed.

1. This is an application concerning alleged discrimination under the Discrimination Act 1991 (the Discrimination Act). The complainant alleges that the respondent made an offer of employment to her in March 2023 and then withdrew it on 23 May 2023 on the basis of an irrelevant criminal record which had been disclosed by the complainant as part of her application obligations.

1. The complainant is a single female with two dependent children. At the time of making this complaint, she was unemployed having resigned from her previous employment to undertake this role.
2. The complaint was referred to the tribunal by the ACT Human Rights Commission. The area of discrimination was identified as employment.
3. The respondent is the Canberra Institute of Technology (CIT).

1. On the recommendation of the Tribunal, the parties attended a settlement conference before the listed hearing date. The complaint was not able to be resolved.
2. The complaint was heard in Canberra on 14 March 2024.
3. The complainant appeared on her own behalf before the Tribunal. She provided and relied upon the following documents:

(a) A statement dated 20 October 2023.[1]

(b) Correspondence from the complainant.[2]

1. The respondent was represented by Ms K Weir of counsel instructed by Mr M Quincy O'Neill from the ACT Government Solicitors. It provided and relied upon the following documents:

(a) A statement of Ms Meghan Oldfield,[3] and

(b) A Chronology,[4]

(c) Written Submissions.[5]

1. The Tribunal's role in this application is to determine if the respondent breached its obligations under the Discrimination Act and if so, whether it is liable to pay damages to the complainant or take other actions to remedy that breach.

1. In March 2023, the complainant sought a permanent position at CIT. The complainant was an external applicant for this position. The respondent had no prior knowledge of the complainant or her history. On 30 March 2023, the complainant received an offer of a permanent employment with the CIT commencing on 26 April 2023. After consideration of the complainant's criminal record, which was supplied by the complainant in the ordinary course of external applications for employment in the ACT public service, the offer of employment was withdrawn.

1. The Discrimination Act protects persons with certain "protected attributes" - as defined in section 7 of the Discrimination Act (protected attributes)[6] - from direct or indirect discrimination - as defined in section 8 of the Act - in certain areas of public life, including employment.[7] One of the protected attributes is an irrelevant criminal record. It is not in dispute that the complainant has a criminal record. Section 8 of the Discrimination Act defines direct discrimination[8] as follows:
   1. Meaning of discrimination

(1) For this Act, discrimination occurs when a person discriminates either directly or indirectly, or both, against someone else.

(2) For this section, a person directly discriminates against someone else if the person treats, or proposes to treat, another person unfavourably because the other person has 1 or more protected attributes.

1. An act will only be unlawful under the Discrimination Act if it occurred in a protected area of public life. The workplace is one such area, as per section 10:
   1. Applicants and employees

_(2) It is unlawful for an employer to discriminate against an employee - _

(a) in the terms or conditions of employment that the employer affords the employee; or

(d) by subjecting the employee to any other detriment.

1. As I understand the complainant's submission, she alleges that she was directly discriminated against, as per section 8(2) of the Discrimination Act.
2. The HRC Act establishes who bears the onus of proof in discrimination proceedings, such as this, more generally:

53CA Onus of establishing complaint about discrimination etc

_(1) This section applies to a discrimination complaint, referred to the ACAT under this division, about discrimination by a person against another person by - _

(a) treating, or proposing to treat, the other person unfavourably because of a protected attribute of the other person (direct discrimination);

_(2) It is a rebuttable presumption that discrimination has occurred if the complainant - _

_(a) establishes that - _

(i**)** for a complaint about direct discrimination - the treatment or proposed treatment is unfavourable; and

(ii) ... and

_(b**) presents evidence that would enable the ACAT to decide, in the absence of any other explanation** - _

(i) for a complaint about direct discrimination - that the treatment or proposed treatment is because of a protected attribute of the other person; or

_(1) The presumption under subsection (2) is rebutted if the person complained about establishes that - _

(a) for a complaint about direct discrimination - the treatment is not because of a protected attribute of the other person; or

Note The onus of establishing an exception or exemption to discrimination is on the person seeking to rely on it (see Discrimination Act 1991, s 70).(emphasis added)

1. Additionally, section 70 of the Discrimination Act sets out who bears the onus of establishing an exception under that Act:
   1. Onus of establishing exception etc

If, apart from an exception, exemption, excuse, qualification or justification under this Act, conduct would be an unlawful act, the onus of establishing the exception, exemption, excuse, qualification or justification lies on the person seeking to rely on it. (emphasis added)

1. The complainant is devastated by the events which caused her to lose the appointment to the CIT. She has not applied elsewhere as a public servant or in the private sphere. She said:

_"...I know my worth. I know I can be a public servant and then this whole situation has just affected me mentally, so I have been waiting to see the outcome on the decisions, to then go from there, because it's very heartbreaking."[9](_emphasis added)

1. The complainant suggested to Ms Oldfield that she did not understand how someone could be given a chance if no one gave them one. She said that she presented well enough to win the position but as soon as her record became known, she was immediately judged. She suggested that she did not have a proper opportunity to explain criminal record in sufficient detail because she had not done that before.
2. Ms Oldfield responded that it was a question of balance. It is not black-and-white. Ms Oldfield did not have confidence that the past behaviour would not be repeated or would not pose a risk to her or the job.
3. The complainant relied on her excellent work record in the ACT public service in her immediate past employment which she believed should have swayed CIT in her favour.

1. The respondent tendered written submissions.[10] It submitted that the complainant does not possess a protected attribute i.e. an irrelevant criminal record. The respondent considers the complainant's criminal record to be a relevant criminal record.
2. The respondent also submitted that the complainant was afforded procedural fairness in its consideration of her criminal record although it conceded that that question is not necessarily determinative of a complaint.
3. The respondent bears the onus to establish that the applicant's criminal record is not irrelevant. It must determine that matter. In a previous complaint, I determined that a criminal record may appear by its bald statement to be significant and highly likely to be relevant. That bald statement cannot be decisive of the issue. To determine if a criminal record is an irrelevant criminal record, an employer must consider all the circumstances surrounding the applicant's and the employer's circumstances.
4. The respondent relied on the evidence of Ms Meghan Oldfield. She was the person to whom the complainant would provide administrative support to as an executive support officer if employment was confirmed and the decision-maker in relation to the withdrawal of the offer of employment made to the complainant. Her evidence regarding process is summarised below:

(a) The complainant was the successful candidate for this position after a merit-based interview process.

(b) The complainant advised Ms Oldfield that she had a criminal record and indicated that she would like an opportunity to explain the circumstances and background of that record. The complainant was honest in her disclosure.

(c) Ms Oldfield considered the applicant's criminal record when it became known to her.

(d) She provided complainant with an opportunity to explain her criminal record.

(e) Ms Oldfield decided that the complainant's criminal record was incompatible with the inherent requirements of the position and withdrew the offer of employment.

1. The issues which Ms Oldfield weighed against finding the criminal record was irrelevant are set out below.

(a) The public scrutiny that the CIT has been under as a result of an enquiry being conducted by the ACT Integrity Commission.

(b) The period of time that has elapsed since the criminal events had taken place which Ms Oldfield did not consider to be sufficient.

(c) The events took place over an extended period and there was some repetition of conduct.

(d) The varied conduct which included a physical and an antisocial component.

(e) The fact that the role involved full access to all of her diaries and emails.

(f) She acknowledged the possibility of reform that someone could have misconducted themselves in the past but have reformed. However, after considering the timeline of the complainant's record she was not sufficiently comforted to take the risk.

(g) On balance, she was not confident that the conduct would not be repeated.

1. The respondent's secondary submission was that its actions fell within the exception in section 30 of the Discrimination Act because it was done necessarily for the purposes of complying with a requirement of territory law. In this instance, the relevant territory law was section 68 of the Public Sector Management Act 1994 which requires the head of service to be satisfied on reasonable grounds that a person is suitable for appointment having regard to any prior criminal convictions.
2. I was not persuaded by the respondent's secondary submission. However, given my findings in relation to the respondent's primary submission is not necessary for me to determine the issue.
3. I have considered the steps undertaken by Ms Oldfield. I have considered the matters she took into account in determining that the applicants criminal record was a relevant criminal record and that therefore the offer of employment should be withdrawn.
4. Ms Oldfield was affected by a consideration of an independent investigation by the ACT Integrity Commission into the CIT. That was not a proper consideration of the issues affecting the complainant's application and consideration of whether she had a protected attribute.
5. However, the other matters that Ms Oldfield took into account were appropriate matters for her consideration. Her conclusion was conservative, and the outcome was devastating for the complainant. I am persuaded that they are matters that she was entitled to take into account and consider as she did. The conclusion was available to her.
6. I am satisfied and find that the respondent did not directly discriminate against the complainant in her employment based on her criminal record. I am satisfied and find that the complainant does not have a protected attribute, an irrelevant criminal record. Her offences were relevant to her suitability for the position with Ms Oldfield.

Mr Michael Quincy O'Neill, ACT Government Solicitor

[1] Exhibit Complainant 1: Witness Statement dated 23 October 2023

[2] Exhibit Complainant 2: Correspondents from Complainant dated 23 October 2023

[3] Exhibit ACT 1: Statement of Ms Meghan Oldfield and annexures dated 24 November 2023

[4] Exhibit ACT 2: Chronology dated 24 November 2023

[5] Exhibit ACT 3: Respondents Outline of Submissions dated 23 November 2023

[6] Discrimination Act 1991 (ACT) (the Discrimination Act) s 7

[7] Discrimination Act s 8

[8] Discrimination Act s 8

[9] Transcript of proceedings 14 March 2024, page 24

[10] Exhibit ACT 3: Respondent's Outline and Submission dated 23 November 2023