Friday, 19 October 2018

 A fairer system for considering criminal records in employment decisions

Media release

Employers will be given greater certainty about when they can reject job applications from people with criminal records.

The Government will amend the Australian Human Rights Commission Regulations 1989 (the Regulations) to clarify that whilst employers can discriminate on the basis of a ‘relevant criminal record’, they won’t be able to discriminate if the conviction is ‘irrelevant’ to the role being applied for.

“This is a sensible approach to give both employers and prospective employees greater certainty than is provided for in the current Regulations,” Attorney-General, Christian Porter, said.

“Obviously, it’s reasonable for a bank to reject an applicant who has a conviction for embezzlement.

In such a situation, the conviction is clearly ‘relevant’ to the performance required of a job applicant.

 “However, the amendment will make it unlawful for an employer to discriminate on the basis of an ‘irrelevant’ criminal record, consistent with equivalent prohibitions in state and territory legislation. This change should provide employers greater ability to exclude candidates who previously committed a dishonesty offence from positions of employment that can be reasonably characterised as requiring substantial levels of integrity and trust. 

“Most Australians wouldn’t say people with a criminal record should be excluded from employment for the rest of their lives. 

“Equally, employers need greater clarity about when they can refuse to employ someone who, they reasonably believe, is unsuitable for a particular position because of a criminal conviction.”

“I believe the amendment will strike a better balance in this area.”

Currently, the Regulations prohibit discrimination made on the grounds of any criminal record, unless that criminal record relates to the ‘inherent requirements’ of a position. This was highlighted recently in a report by the Australian Human Rights Commission (AHRC), BE v Suncorp Group Ltd [2018] AusHRC 121.

In that case, the AHRC found that Suncorp’s decision to rescind Mr BE’s offer of employment based on his criminal record constituted unlawful discrimination because his record was not related to the inherent requirements of the job.

“The Government has considered a number of options to address concerns raised in the AHRC’s report, including working constructively with the AHRC on this amendment, and believes this approach will achieve the right balance between protecting Australians from unfair discrimination, while allowing employers to consider the relevance of a criminal record in making an employment decision” the Attorney-General said.

The current Regulations are due to sunset on 1 October 2019 and the planned amendment will be progressed over coming months along with outcomes of a broader review of the Regulations.