Criminal Records and Rehabilitation in Australia
| DOI | 10.1177/206622031100300107 |
| Published date | 01 March 2011 |
| Date | 01 March 2011 |
| Subject Matter | Article |
European Journal of Probation
University of Bucharest
www.ejprob.ro
Vol. 3, No.1, 2011, pp 79 – 96
ISSN: 2006 – 2203
Criminal Records and Rehabilitation in Australia
Bronwyn Naylor
Monash University
Abstract
Resettlement of former offenders and their ongoing desistance from further offending should
be a priority for any community, but in many countries criminal records are increasingly
accessed in employment and other decision making. The criminal record then becomes an
indelible brand, undermining rehabilitation and making reoffending more likely. Common
law-based countries such as the UK and Australia demonstrate this phenomenon more
clearly than some mainland European countries, and political and cultural factors are
clearly relevant. This paper addresses the scope in Australia for rehabilitation processes that
might contribute to the desistance process.
Keywords: Criminal record - Spent convictions – Desistance - Rehabilitation
Introduction
„For the record I see Black and Whitefella law as both punitive. Eye for an eye,
tooth for a tooth. Kill, and in either system it‟s get out of town if you can. But
under Blackfella law, crimes down from capital, a period of exile, spear in the
leg...Exile ends, Wound heals. Better now Jack? Yes, I‟m better now Uncle.
Warm yourself at the fire old son. .. And I‟d be accepted back in the fold.
Whitefella way: the Convict Stain endures, lingers, and your past Shadows,
Stalks your present, and Stymies, Jinks your future.’1
It is obvious that both offenders and the broader community benefit if offenders can resettle
and successfully desist from further offending. The widespread use of criminal record checks
as a risk management tool, however, undermines offender rehabilitation and makes
reoffending more likely. The use of criminal record checks appears to vary across
jurisdictions, influenced by history, politics and culture. This paper is one of an EJProb
*Correspondence concerning this article should be addressed to Dr Bronwyn Naylor, Law Faculty, Building
12, Monash University, Victoria Australia 3800: E-mail: bronwyn.naylor@monash,.edu
1 (Uncle) Jack Charles/John Romeril, 2010, 'Jack Charles v The Crown'. Jack Charles is an Aboriginal Elder and
actor: http://www.ilbijerri.org.au/jack-charles.html.
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Special Issue outlining the nature and accessibility of the „criminal record‟ in various
jurisdictions, and identifying the possibilities for counteracting the power of the perpetual
criminal record through forms of the reintegration rituals rewarding desistance proposed in
the recent work of Shadd Maruna (2001, 2011). This paper addresses the current situation in
Australia; comparisons can be drawn with France (Herzog-Evans, 2011b), Germany
(Morgenstern, 2011), Spain (Larrauri, 2011), the Netherlands (Boone, 2011) and the United
Kingdom (Padfield, 2011). Not surprisingly Australia and the United Kingdom have similar
philosophies and practices, and I will argue that Australia‟s historical and legal origins offer
no generous philosophy of resocialization, by contrast with for example France, Germany,
Spain and the Netherlands, and can provide only indirect mechanisms for rewarding
desistance. The Australian experience also illustrates the limitations of common law
principles to protect offender interests in the absence of human rights legislation. This
contrasts with more recent UK developments (Padfield 2011).
For a country settled by white colonisers for the warehousing of convicts, Australia is
remarkably reluctant to forgive. The criminal justice system espouses the conventional
criminological goals of deterrence, retribution, rehabilitation and community protection, but
in practice rehabilitation is rarely part of the public discourse. Australia‟s recent history has
been, as is well known, as a land colonised against the will of the original inhabitants as a
recipient for English convicts. Much has been written about the impact of colonisation on the
Indigenous inhabitants (Cuneen, 2001; Royal Commission into Aboriginal Deaths in
Custody, 1991: ch10). I will return to this issue later.
The experience of the transported convicts has also been analysed, both the horrors of the
long sea voyage and the violence of the regimes over the period. The great distance from the
motherland meant that there was considerable discretion in the ways the convict settlements
operated. Historians in fact suggest that despite the deprivations the early settlement at
Sydney Cove was at times a more generous environment to serve a sentence than the UK.
The transportation program had several purposes; not only did it reduce the pressure on the
prisons and hulks and remove convicts from the community consciousness. It also aimed to
build the British Empire, and convicts were expected to provide labour for that purpose.
Governor Lachlan Macquarie, appointed Governor of the new settlement in 1810, considered
that transportation itself was the punishment; those who survived the journey could then
„work hard and re-establish their lives‟ (Bull, 2010: 6).
Convicts showing responsible behaviour could obtain a ticket-of-leave allowing them to work
wherever they wished. Governor Macquarie in effect provided an early form of officially
documented „rehabilitation‟ to sustain the growth of the new colony:
„In New South Wales, certificates of freedom were issued to convicts who
were pardoned or who had served their terms. This was necessary in a convict
society where sometimes emancipists needed to prove they were free. The
certificate established that the holder was “restored to all the rights and
privileges of free society‟ (Bull, 2010: 6).
This early pragmatic approach to convict labour was not, however, sustained. The policy of
emancipation, and perceived lack of focus on the punitive intent of transportation, brought
Governor Macquarie into conflict with influential conservative elements of the local society
which „sought to restrict civil rights and judicial privileges to itself‟ and which – importantly
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– had „influential friends in English political circles‟. 2 A Commission of Inquiry was set up
and Macquarie resigned in 1821, returning to the UK to defend his administration. From that
time punishment and deterrence were prioritised in the running of the new colony (Finnane,
1997: 8-12). In Australia today a range of principles and ideologies militate against any
forgiving, let alone forgetting, of criminal convictions. This will be the focus of the majority
of this paper. There is little scope for formal recognition of desistance, but some forms of
restorative justice can be seen to offer a type of reintegrative ritual which will be discussed
briefly later in the paper.
This paper also has a focus on the impact of criminal records on access to employment
specifically. Employment is recognized as a key factor in sustaining desistance from crime,
not only as an income source but also as a source of structure, social contact, and self-worth
(for example Graffam et al, 2004: 1). Criminal history information is increasingly sought by
employers in Australia. The national criminal records agency, CrimTrac, processed around
2.7 million criminal history checks in 2009-2010 (Crim Trac 2010: 58), a particularly striking
number given that the total population of Australia is only around 20million people. This is a
substantial increase on its first years of operation (2000-2003) which averaged less than
0.5million checks per year. The agency notes its growing business in its latest Annual Report,
as criminal history checks are „increasingly sought by public sector agencies, private sector
entities and volunteer organisations as a prudent employment or engagement screening
measure‟ (Crim Trac 2010: 57).
Research also suggests that employers are very wary about employing ex-offenders (see for
example Pager, 2007). They are concerned about the risk of reoffending specifically, but also
that an offender will be an unreliable or challenging employee. When Australian employers
(together with other corrective services stakeholders) were asked to rate the employability of
a range of disadvantaged groups, ex-offenders were rated less likely to obtain employment
than people with a chronic illness, physical disabilities or communication difficulties. Only
applicants with intellectual or psychiatric disabilities were rated lower (Graffam et al., 2004).
At the same time, targeted employment programs for offenders have been reasonably
successful, results replicated in the UK and Europe (for example Graffam et al., 2005; CIPD,
2007; Wirth, 2007).
Australia has no national human rights charter, and its Constitution is a procedural
document rather than a statement of fundamental principles or values. The common law
therefore represents the starting point for discussing access to and use of criminal records,
and the opportunities for supporting offenders‟ reintegration. The Australian common law
system begins from the principle that actions are lawful unless there is an explicit law
making them unlawful (the principle of legality). In the context of criminal records, and
employment specifically, this means that, in the absence of any legal restriction, an
employer can ask for and take account of any information they choose when making a
decision.
The legality principle is bolstered in the employment context by the principle of freedom of
contract, that is that...
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