The Right to Work: Prisoners and Reintegration

By Chloe Potvin | 23 Feb 12

This article is part of our February theme, which focuses on one of the great silences in the human rights conversation in Australia: Prisoners’ Rights. Read our Editorial for more on this theme.

What challenges do prisoners with mental or cognitive impairments face when they are released back into society?

Securing suitable employment has emerged as one of the most significant obstacles when trying to reintegrate into the wider community.

Despite a plethora of laws, mentally ill ex-offenders are particularly vulnerable to discrimination and disadvantage when seeking a job. Coupled with having a criminal record, the strong stigma still attached to mental illness means that many employers make prejudicial conclusions about risk to members of the public if they were to hire someone with such a history.

[I]t’s not only in the interest of ex-prisoners but also the community at large that prisoners and ex-prisoners be treated with dignity and respect …

The frenzied media commentary that often accompanies the release of mentally ill ex-offenders also has a debilitating affect on the public psyche and the public’s confidence in ex-offenders being able to become positively contributing citizens.

The recent Victorian Supreme Court case Director of Public Transport v XFJ [2011] VSCA 302 (11 October 2011) has recently affirmed the importance of ex-prisoners’ human rights when it comes to workplace opportunities. The case concerned the accreditation of a 55 year old man, referred to as XFJ, to drive a taxi.

In 1990, XFJ killed his wife and attempted suicide while suffering from clinical depression. He was found not guilty by way of insanity and underwent extensive psychiatric treatment. In 1998 he was assessed as not being a risk to the community and was favourably released. He has no other criminal record or dealings with the criminal justice system.

XFJ participated in charity work with people experiencing homelessness and has taken volunteer work with the elderly. But XFJ now requires flexible paid employment to care for his three children. He sought work as a taxi driver for this purpose and was granted accreditation by the Victorian Civil and Administrative Tribunal (VCAT).

Equality of opportunity in employment is important both as a human rights perspective but also for a person’s rehabilitation, mental health and dignity.

But in 2008 the Director of Public Transport refused his accreditation based on the mandatory refusal provision, in Section 169(2) of the Victorian Transport Act 1983, which stipulates that the Director must not accredit a driver if they have been found guilty of a Category 1 offense such as murder even if he or she is not guilty by reason of mental impairment or insanity.  XFJ appealed this decision and was successful in getting it overturned by a delegate to the Director; however, he was then refused accreditation again.

The delegate provided the following explanation:

“Nonetheless, under section 169(1)(b)(ii) I must also be satisfied that you are suitable in other respects to provide the service. …

I am not satisfied that a person who cause[s] the death of another person, albeit whilst insane at the time, is suitable to be accredited to drive a commercial passenger vehicle such as a taxi. I am concerned that a person who engages in such conduct is not suitable to be accredited and that if accredited there may be a reduction in confidence in the commercial passenger vehicle accreditation regime system. I have also considered the potential detrimental impact on the reputation of the taxi industry and the potential detrimental affect to public and passenger confidence in the taxi industry and taxi drivers in general.”

This decision was also appealed by XFJ and two psychiatrists to the court then provided oral evidence. They described XFJ as “symptom free,” “intelligent” and “no more likely or little more likely to have a further episode of depression than would anybody else in the community.” It was then concluded that

“there is nothing in the public care objective which would indicate that XFJ is not a suitable person for accreditation. He is, in a technical sense, qualified, and there is no reason to believe that he would be other than a safe driver.”

Having dealt with the Director’s objection that XFJ was unsuitable, the court dealt with the assertion that his accreditation would damage confidence in the taxi industry. In handing down his decision the court stated that XFJ’s emphatic psychiatric evidence and technical suitability was reason enough to affirm that public confidence would not be tarnished. The appeal to stop XFJ from attaining accreditation to drive a taxi was unanimously dismissed.

Discrimination in employment persists for people with psychiatric disability and many people fear disclosing their illness for fear of alienation or humiliation.

While the case was not decided on the basis of the Victorian Charter of Human Rights and Responsibilities Act, the Victorian Equal Opportunity and Human Rights Commission made a number of submissions during the proceeding relating to the Charter. It emphasised the importance of Section 32(1) of the Charter which is a statutory directive that requires “exploring all possible interpretations of the provisions in question and adopting that interpretation which least infringes Charter rights” thus highlighting the need to consider all the circumstances of a person’s case before drawing prejudicial conclusions about risk to members of the public.

Barbara Shalit, XFJ’s lawyer from the Mental Health Legal Centre, says that in essence, the case is a win for the recognition of the right of people with psychiatric disability to participate in the community, including the right to work:

“Equality of opportunity in employment is important both as a human rights perspective but also for a person’s rehabilitation, mental health and dignity.”

Unfortunately, like XFJ, many people who have a psychiatric disability but have been found not guilty of a crime due to mental impairment still continue to face discrimination as a result of their forensic psychiatric history. As Ms Shalit explained:

“Discrimination in employment persists for people with psychiatric disability and many people fear disclosing their illness for fear of alienation or humiliation.

The case of XFJ is one such example.  Despite the ‘emphatically favorable’ psychiatric evidence, our client was, for three years, prevented from obtaining meaningful employment in an industry for which he was well-qualified, and which would have had the desired flexibility given his parental responsibilities for his son who had leukemia.”

While the concepts of public confidence and public safety were at the forefront of the case, employment helps to support the reintegration of ex-prisoners into society and reduces the risk of recidivism.

Every day Australian prisoners are released back into society – of the 22,383 sentenced prisoners in Australian prisons as of 30 June 2011, only five per cent were serving a life term while thirty-three per cent of prisoners had an aggregate sentence length of less than two years according to the Australian Bureau of Statistics.

However employment is still a major barrier for ex-prisoners and ex-offenders trying to build a new life.

Phil Lynch, Executive Director of the Human Rights Law Resource Centre, believes that society needs to reshape the way they view ex-offenders seeking paid work:

“The evidence is very clear that it’s not only in the interest of ex-prisoners but also the community at large that prisoners and ex-prisoners be treated with dignity and respect and that they be given every possible opportunity and support at rehabilitation, social reintegration and full participation in the community.

We know that things like having a stable job, adequate access to adequate housing, access to health care, family support and the like are the things that are most likely to prevent reoffending and to promote community safety.”

In spite of this fact, however, stigma surrounding mental health ex-offenders continues to impede it from becoming a widespread reality.

This is demonstrated in the harsh media commentary that accompanied XFJ’s case. Headlines included, amongst others, the Herald Sun’sKeep killer cabbie off our streets and The Age’sCabbie given permission to drive after killing”.

The Victorian Civil and Administrative Tribunal was also critical of sensationalist and inaccurate media reporting which, it stressed, was “laced with emotive language and replete with inaccuracies,” describing him as “insane” and as “a murderer” and “has the capacity to set back his rehabilitation for years.”

As Ms Shalit concluded, “The case highlights a profound lack of understanding by the media, the public, and, at times, political decision-makers, of the experiences of people with psychiatric disabilities, the impact of their mental illness and their capacity to work.”

Chloe Potvin is a Journalism and International Studies student at the University of Technology, Sydney.