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Discrimination and Criminal Records

Libby Pallot, Walter MacCallum, Anthony Massaro, Ben Tallboys, Abbey Burns, Caitlin Walsh and Caitlin Meers

The new Australian Human Rights Commission Regulations 2019 (Regulations) were recently introduced, arguably expanding the circumstances in which an employer can discriminate on the basis of a current or prospective employee’s criminal record under Commonwealth law.

Criminal Records

The previous regulations prohibited employers from discriminating on the basis of any criminal record, unless the criminal record related to the ‘inherent requirements’ of a position.

Now, employers must not discriminate on the basis of an ‘irrelevant criminal record’. Arguably, employers can now take into account a broader range of factors when considering a current or prospective employee’s criminal record.

The change follows the Australian Human Rights Commission’s (AHRC) report BE v Suncorp Group Ltd [2018] AusHRC 121, in which it found that an employer had discriminated against a job applicant on the basis of his child pornography convictions. The employer’s view was that the applicant’s criminal history indicated that he was not sufficiently trustworthy or of good character to be trusted at work or to work from home and deal with confidential information, which was an inherent requirement of the position.

The Commission found that it was not apparent that the applicant would be unable to fulfil the inherent requirements of the job to be trustworthy and of good character on the basis of his criminal record.

Under the new Regulations, discrimination includes any distinction on the basis of an ‘irrelevant criminal record’. Accordingly, under Commonwealth legislation, employers may lawfully discriminate against job applicants on the basis of a ‘relevant criminal record’.

For example, an applicant who has been convicted of certain offences may be unable to obtain a Working with Children Check (also known as a Working with Vulnerable People registration), making them unsuitable for roles which require that certification. Alternatively, an applicant subject to a lengthy period of suspension of their driver’s licence may be unsuitable for a role in which transport is an inherent requirement of the role, for example, a delivery driver.

The ‘Toothless Tiger’

Importantly, while discrimination on the basis of an irrelevant criminal record may constitute discrimination under the Regulations, there is no Commonwealth mechanism for applicants to pursue these matters in the courts. Applicants may apply to the Commission for conciliation of their complaint. If conciliation is unsuccessful, the Commission may prepare a report with its findings and recommendations, for tabling in Parliament. The Commission’s recommendations are not enforceable, and employers may decline to follow them (as was the case in BE v Suncorp Group Ltd).

Please note – enforceable prohibitions against criminal record discrimination exist in some states and territories. Employers who are considering discriminating against an individual on the basis of a criminal conviction or those who have received a discrimination complaint should seek advice based on their particular circumstances.

Are your policies up to date?

If you or your business require potential applicants to undergo police checks, you may need to consider whether various criminal histories are relevant to that particular job. Employers with policies on this matter should also consider updating the language to ensure consistency with the new legislation.

The changes do not impact on any other regimes currently in place which disqualify certain individuals from working in particular industries or roles due to a criminal conviction (ie aged care, disability, some professional services).

If you need assistance understanding or interpreting your rights and obligations, please contact the Russell Kennedy Workplace Relations, Employment and Safety team.

If you would like to keep in touch with alerts and insights from our expert Workplace Relations, Employment and Safety team, you can subscribe to our mailing list here.

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