Changes to human rights provisions will close a loophole that allowed employers to blanketly refuse to hire someone with a criminal record.
The federal government announced that it will change the Australian Human Rights Commission Regulations 1989 so that only convictions deemed “relevant” to that particular role can be used to discount job candidates.
That would have the effect of extending anti-discrimination provisions to anyone who has a criminal record where the conviction is deemed to be “irrelevant” to that particular role.
“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.”
Rather than adding yet more red tape onto employers, Mr Porter said the change would help clarify the legal position for employers, particularly where offences of “dishonesty” come to light in roles 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,” he said.
“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.”
The legal update follows a case in which the Australian Human Rights Commission successfully argued in court that Suncorp Group had discriminated against a job applicant when his employment offer was withdrawn because of a past criminal conviction.
“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,” said Mr Porter.
Adam Zuchetti is the editor of My Business, and has steered the publication’s editorial direction since early 2016.