Banning “The Box” in Australia’s Employment Applications: Lessons from the American State of Hawaii

Prof Daniel Clay1

1Elmira College, Elmira, United States

A criminal record may be an appropriate means for denying an otherwise qualified job applicant a position.  However, for many, a criminal conviction is not related to their prospective position, but applicants are nonetheless denied because of their past. This is especially problematic as “meaningful employment” is a significant predictor of recidivism. As of July 2018, every Australian state apart from Victoria provides, after a given amount of time, for criminal convictions to be erased from an individual’s record. Furthermore, in Western Australia and the Australian Capital Territory, it is unlawful to discriminate against a job applicant based upon their spent convictions. Tasmania and the Northern Territory are the only states and territories in Australia where it is unlawful not to hire someone because they have a criminal record; yet, the enforceability of this is limited because the Australian Human Rights Commission does not have the power to force an employer to hire an applicant or award damages. To remedy this patchwork of laws, Australian states, in partnership with business/industry, may consider “ban-the-box” legislation adopted in cities and states throughout the United States. Specifically, under Hawaii’s “Fair Chance Law” private and public employers may not inquire as to whether an applicant has a criminal conviction until after a conditional offer of employment has been made.  While studies are mixed, some suggest “ban-the-box” legislation has resulted in increased employment in high-crime U.S. neighborhoods and the “upskilling” of new hires for the benefit of applicants and employers alike.


Professor Clay is an American tenure-track assistant professor of criminal justice and legal studies at Elmira College in New York specializing in international and transnational criminal justice and law. His publications vary widely from books on the American court system to articles and book chapters on international policy and philosophy regarding the International Criminal Court to book chapters on human trafficking. Professor Clay is a graduate of Drury University (B.A.), Suffolk University (M.S.C.J.S.), Suffolk University Law School (J.D.) and the University of New Hampshire (LL.M.).


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