Thursday, 03 October 2019

Greater certainty for employers when hiring staff with criminal records

Media release

Changes to anti-discrimination laws have come into effect that give employers greater certainty about when they can and cannot reject job applications from people with criminal records.

The Government has amended the Australian Human Rights Commission Regulations 1989 to allow employers to exercise reasonable discretion against prospective employees if their criminal record is relevant to the position being applied for. But it remains unlawful for employers to discriminate if the conviction is irrelevant to the role.

Previously, employers had to clear a much higher bar that required them to show that a criminal record was directly relevant to the "inherent requirements" of a position.

"Most Australians would agree that people with criminal records should have a chance to turn their lives around and not be permanently excluded from employment," Attorney-General and Minister for Industrial Relations, Christian Porter, said.

"But at the same time we need to strike a sensible balance that ensures employers can reject an applicant if they reasonably believe they are unsuitable for a position due to the particular nature of their conviction."

The need for change was demonstrated by a 2018 case involving a major insurance company which was found to have unlawfully discriminated 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 argued that the man's record demonstrated he was not someone of sufficient character and integrity to be trusted to hold the position, which required him to work unsupervised from his home address and to deal with sensitive customer data.

The man's offending had also primarily involved the use of computers and most of his work would be computer based.

Under the previous rules, the AHRC rejected the company's claims and found that the man had been discriminated against because his record was not directly relevant to the inherent requirements of the position. The criminal record on its own was also not considered by the AHRC to be evidence of poor character.

"This case demonstrated that our laws in this area were not working and were at complete odds with common sense which is why this change has been made," Mr Porter said.

"The amendment that we've introduced will provide the certainty and clarity that employers need, while also ensuring that applicants remain protected when their conviction clearly has no relevance to the job they are applying for."