Is rejecting a job applicant based on their criminal record unlawful discrimination?

The answer will depend upon whether it’s a relevant or irrelevant criminal record. The definition of discrimination for the purposes of the Australian Human Rights Commission Act (Cth) (AHRC Act) has been amended by Regulation 6 from “criminal record” to “irrelevant criminal record”.

This change effectively strikes a balance between enabling people with criminal records to find employment and protecting an employer’s right to reject applicants when their criminal record makes them unsuitable for a role.

Employers should be cautious when assessing what constitutes an “irrelevant criminal record”. Past decisions of the Australian Human Rights Commission (AHRC) indicate that relevance or irrelevance should not be determined solely on the basis of the nature of the offence, but on all relevant circumstances.

Further, while it is established that good character can be an inherent requirement of a role, the AHRC and other tribunals have repeatedly emphasised that a criminal record, in and of itself, is not an indicator of bad character and that where a job applicant has a criminal record, the nature of that record, the context in which it came into existence and relevant aspects of the personal circumstances of the applicant should all be considered before a conclusion is reached as to whether an individual is trustworthy and of good character.

A complaint of criminal record discrimination can be made to the AHRC under the AHRC Act. The AHRC may conciliate a complaint of criminal record discrimination. If conciliation does not resolve the matter, the Commission prepares a report outlining its findings in relation to the complaint, and recommending any remedial actions or compensation it considers appropriate. The report is provided to the Attorney-General and tabled in Parliament. While the Commission may make a finding that the conduct constitutes discrimination, the AHRC Act does not make it unlawful and the AHRC does not have the power to enforce compliance with its recommendations.

Unlike grounds of discrimination under other federal, state and territory legislation, these complaints do not have any enforceable legal remedies however a report containing adverse findings can expose a respondent to public criticism.

Disclaimer: This summary is a guide only and is not legal advice. For more information on discrimination call NECA Legal (WA) Pty Ltd on 6241 6129 or email necalegalwa@ecawa.org.au