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An excerpt of this article first appeared in Human Resoruces Leader - Issue 169 - 3 February 2009
Apprehended violence orders (AVOs), provide accessible protection to people who fear for their safety. However, the AVO has evolved to deliver an unintended outcome, namely its use as a source of information about some job applicants. An AVO does not give its subject a criminal record however AVO subjects can suffer discrimination in employment, particularly at the recruitment stage.
Some employers assume that an AVO is a reliable source of information about a job applicant. This assumption may be unreliable as AVOs are often sought and granted as a result of complex personal/family based disputes. Many AVO subjects “consent without admissions” to the order. This means that the AVO subject did not agree with the complainant’s allegations, however, they consented to the AVO being made against them, to avoid a hearing about whether the order should be granted. Anecdotal evidence suggests that many people “consent without admissions” to minimise personal/family tensions, however, they may not appreciate the consequences of being subject to a current or expired AVO. Those consequences include difficulties in securing employment; limitations in relation to the possession of firearms; exclusion from certain forms of security work; and specific exclusion from certain forms of work.
Interestingly, there is no protection against discrimination in recruitment because a person is the subject of an AVO. However, by contrast, there is limited protection federally and in some States from discrimination on the ground of criminal record when selecting employees. The Australian Human Rights Commission (AHRC) has the authority to investigate a complaint of discrimination on the ground of criminal record and it can seek to conciliate a resolution. However, if a resolution cannot be conciliated, the AHRC is limited to providing a report to the Attorney General for tabling in Parliament.
There is also ‘spent convictions’ legislation. Although records of criminal offences to which a person has been charged and/or convicted can never be removed, spent convictions’ legislation at the Commonwealth level and in all States and Territories except South Australia and Victoria (where there are administrative guidelines) deals with the disclosure of certain criminal convictions. If a conviction is “spent” it means that the job applicant does not have to disclose that conviction if he/she is asked about their criminal record (subject to some exclusions).
By contrast, if an AVO subject is asked if they are subject to a current AVO or if they were subject to one in say the last 10 years, then they must truthfully answer the question or run the risk of their employer discovering their failure to disclose and taking action against them.
AVO subjects do experience discrimination in securing employment and perhaps in relation to promotion. Some argue that it is unfair to take an AVO into account as it may not be a reliable basis upon which to discriminate. Others point to circumstances where an existing employee is protected by an AVO against a job applicant. In those circumstances, the reliability of the AVO as a guide to the applicant’s character is not relevant to an employer who just wants to avoid a protected person working with an AVO subject in their workplace. Of course, AVOs can be modified to deal with practical issues such as contact in the workplace. However, this limited mechanism is unlikely to provide much relief to an AVO subject who seeks employment within an organisation where the protected person is an existing employee. These situations are most relevant in regional centres and small towns where prospective employers are more limited than in major metropolitan centres.
Discriminating against persons because they are subject to an AVO is lawful. In some instances, deciding not to employ a person subject to, or otherwise associated with, an AVO, may be a practical decision. However, employers should be cautious in making assumptions about people associated with AVOs.
Siobhan Flores-Walsh (Partner) and Carly Fielding, (Solicitor)
