Thinking | 21 November 2019

Criminal records and recruitment: Greater certainty for employers

A recent amendment to anti-discrimination laws gives employers greater certainty about when they can and cannot reject job applications from people with criminal records.

Prior to the amendment, it was unlawful for an employer to discriminate against a job applicant (e.g. by rejecting the job application) on the basis of the applicant’s ‘criminal record’, unless the employer could establish that the criminal record rendered the applicant unable to fulfil the ‘inherent requirements’ of the relevant position.

Under revised regulations (the Australian Human Rights Commission Regulations 2019 (2019 Regulations)), which commenced on 1 October 2019, the bar has been lowered and it is now only unlawful for an employer to discriminate against a job applicant on the basis of their criminal record if the applicant has an ‘irrelevant criminal record’.

The term ‘irrelevant criminal record’ is not defined in the 2019 Regulations. While guidance is likely to be taken from anti-discrimination law in the Northern Territory, Tasmania and ACT (which provide protection against discrimination on the basis of an irrelevant criminal record), there may still be some uncertainty regarding how the term ‘irrelevant criminal record’ will be interpreted in practice.

The Attorney-General and Industrial Relations Minister, Christian Porter, said the government has made this amendment to ‘allow employers to exercise reasonable discretion against prospective employees if their criminal record is relevant to the position being applied for’.

Attorney-General Porter said the ‘need for change’ was demonstrated by a 2018 case involving a major insurance company which was found to have engaged in unlawful discrimination when it withdrew an offer of employment it had made to a man who had failed to disclose convictions for child pornography offences. The company had argued that the man’s record demonstrated that he was not of sufficient character and integrity to be trusted to hold the position, which required him to work unsupervised from his home and deal with sensitive company data. However, the Australian Human Rights Commission rejected the company’s claims and found that the man had been discriminated against because his criminal record alone did not suggest he was unable to perform the inherent requirements of the position.

The Explanatory Statement to the 2019 Regulations provides that replacing the ‘criminal record’ attribute with ‘an irrelevant criminal record’ attribute is intended to strike a ‘better balance between allowing those with criminal records to find employment, while ensuring employers can refuse to employ someone where their criminal record makes them unsuitable in the position for which they have applied’.

While criminal record discrimination often arises in the context of recruitment (e.g. the refusal to employ a person on the basis of the person having a criminal record), this ground also commonly relates to matters during employment such as the dismissal of, or refusal to promote, a person on the basis of the person having a criminal record. Accordingly, the new ‘irrelevant criminal record’ attribute will apply in respect of criminal record discrimination during both recruitment and employment.

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Alison has close to 18 years’ experience in a wide-ranging employment practice, advising private sector and public sector clients...

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