Employers now have more discretion when considering criminal records, but the exact meaning of an ‘irrelevant’ record remains unclear.
A change made in October 2019 to anti-discrimination laws lowers the bar for employers to reject job applications from people with criminal records. However, some questions remain about how the change will be interpreted in practice.
Prior to the amendment, the Human Rights Commission Regulations 1989 prohibited employers from discriminating against an employee or prospective employee on the basis of their criminal record, unless the employer could establish that the criminal record rendered the employee/prospective employee unable to fulfil the inherent requirements of the relevant position.
This meant employers had to be certain that the criminal record prevented the person from carrying out the essential duties of the position. In practice, this could be difficult to establish.
The Attorney-General and Industrial Relations Minister, Christian Porter, said the need for change was demonstrated by a 2018 case involving insurance company Suncorp which was found to have engaged in unlawful discrimination when it withdrew an offer of employment it made to a man who had failed to disclose convictions for child pornography offences.
Suncorp argued 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 Suncorp’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.
New regulations – a lower bar yet some ambiguity
A notable change under the revised regulations (Australian Human Rights Commission Regulations 2019) (2019 Regulations) is to introduce the word ‘irrelevant’. This means the 2019 Regulations now prohibit discrimination on the basis of a person’s ‘irrelevant criminal record’. So it should now be easier for employers to exercise reasonable discretion against an employee or prospective employee if they have a criminal record that’s relevant to their role.
The amendment means employers will arguably now be free to consider a broader range of factors when considering how a person’s criminal record affects their current or prospective employment.
For example, in determining whether a criminal record is ‘irrelevant’ an employer may be able to take into account things such as the nature of the offence, the time since conviction, the nature of the relevant position, the nature of the business and so on.
However, it is not entirely clear how broad these factors can be.
The 2019 Regulations don’t define the term ‘irrelevant criminal record’, and there is currently little guidance as to its meaning, creating a new grey area. Accordingly, there is still some uncertainty about how the term will be interpreted in practice.
The Explanatory Statement to the 2019 Regulations does not provide any guidance as to the meaning of an ‘irrelevant criminal record’. However, a 2018 media release from the Attorney-General’s department, states that the amendment “should provide employers greater ability to exclude candidates who previously committed a dishonesty offence from positions of employment that can reasonably [be] characterised as requiring substantial levels of integrity and trust.”
What does this mean for employers?
The 2019 Regulations provide a lower bar for employers when considering how a person’s criminal record affects their current or prospective employment. But, ultimately, we must wait for some test cases to further explore what is considered to be an ‘irrelevant’ criminal record.
Employers would be wise to remember that while discussions about discrimination on the basis of a person’s criminal record are often focused on recruitment, this ground also relates to matters during employment.
For example, discrimination in employment on the basis of an irrelevant criminal record may occur if a person (because of their irrelevant criminal record) is dismissed from employment, denied training or promotion opportunities, subjected to less favourable working conditions, and so on.
Until there is further guidance about the meaning of the term ‘irrelevant criminal record’, some uncertainty remains for employers. In the meantime, employers may consider introducing appropriate policies and procedures in respect to employing people with a criminal record. When in doubt, seek independent legal advice.
Alison Baker is a partner and Karli Thomas a lawyer at Hall & Wilcox.