A recent amendment to the Australian Human Rights Commission Regulations gives employers greater scope to elect not to employ a job applicant because of their criminal record.
How has the law changed?
The previous 1989 Regulation prevented an employer from choosing not to employ someone with a criminal record – unless the criminal record rendered the applicant unable to fulfill the inherent requirements of the role. Under the new 2019 Regulation  it is only discriminatory not to employ someone because of a criminal record if that record is ‘irrelevant’.
Why was the change made?
The amendment arose out of a 2018 decision that found Suncorp guilty of unlawful discrimination when it withdrew a job offer because the applicant had failed to disclose child pornography convictions.  It was found that the decision to withdraw was not based upon the inherent requirements of the role. Suncorp’s argument that the criminal record indicated the job applicant lacked the character and integrity required to work unsupervised from his home and deal with sensitive customer data was rejected.
‘So it seemed to us, the government, completely reasonable that Suncorp would say in those circumstances: well look, given the nature of the record, this is not an appropriate job for you. The idea that they suffered a law and a decision that told them that they couldn’t make that exercise of their own discretion seemed to us to be pretty strange if not a bit ridiculous. So yeah, we’ve changed the law.’ Federal IR Minister Christian Porter 
What does the change mean?
This amendment gives employers a broader discretion to decide that a particular criminal record renders a job applicant unsuitable for a specific job. Employers still face the risk of being held to have unlawfully discriminated if they consider a criminal record that is not relevant to the job in question. The discretion must be exercised reasonably and there are likely to be some further test cases to explore what is considered to be a ‘relevant criminal record’.
The aim of the amendment, as set out in the Explanatory Statement, is 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’.
It should be noted that Tasmania and the NT have laws preventing discrimination on the basis of criminal records, as do the ACT and WA in the context of ‘spent’ convictions. The NSW Act does not currently prevent discrimination on the basis of criminal records.
What does this mean for employers?
Employers should only do background criminal checks or ask about past convictions if the nature of the role means that convictions for certain offences would render an applicant unsuitable. If a criminal record is disclosed or discovered, employers will need to consider whether the record is relevant to the particular role, taking into account:
- the nature of the conviction
- how old it is
- the applicant’s work history since the conviction
- the particular duties of the role
For example, a previous conviction for a drink driving offence would be more likely to be relevant for a delivery driver role than an office job.
Employers also need to be aware that if a decision is made to terminate after an employee has commenced employment, they run the risk of an unfair dismissal claim as well as a discrimination claim.
What does this mean for employees?
Honesty is the best policy. The law does not aim to prevent people with criminal records from obtaining employment. If you are open about your record and apply for jobs where your record should not be relevant to the role’s duties then you should be protected from discrimination. Failing to disclose a record (whether ultimately relevant or not) is likely to give rise to further grounds for an unfavorable decision if your criminal record is later discovered.
If you want to bounce ideas around about this interesting topic please feel free to contact us.
This article is for general information purposes only and does not constitute legal or professional advice. It should not be used as a substitute for legal advice relating to your particular circumstances. Please also note that the law may have changed since the date of this article.