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”.
It remains unlawful for employers to discriminate if the conviction is irrelevant to the role. In the past, employers had to clear a much higher bar that required them to show that an individual’s criminal record was directly relevant to the “inherent requirements” of a position.
Attorney-General and Minister for Industrial Relations Christian Porter said “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”.
“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,” he continued.
Need for change
The Attorney-General highlighted a 2018 case which involved an insurance company that was found to have unlawfully discriminated against a man when it withdrew an offer of employment after finding he had failed to disclose convictions for child pornography offences.
The company had argued that the criminal record demonstrated the man 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 deal with sensitive customer data.
The man’s offending had primarily involved the use of computers, and most of his work would be computer-based.
Under the previous rules, the Australian Human Rights Commission (AHRC) had rejected company claims, finding the man had been discriminated against because his record wasn’t directly relevant to the inherent requirements of the position.
The criminal record on its own was also not considered to be evidence of poor character, according to the AHRC.
“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 continued.
“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.”
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