By Charles Power

When hiring, you may ask job applicants to undertake a criminal record check. In some industries, such as child care, this is common, if not mandatory. But what should you do if your desired candidate has a criminal record? Can you refuse them the job based solely on that record? You can – if the person’s criminal record is relevant to the role sought.

Relevant versus irrelevant criminal record

Following the recent introduction of Australian Human Rights Commission Regulations 2019 (Cth), the definition of discrimination for the purposes of the Australian Human Rights Commission Act (Cth) (AHRC Act) has been amended from “criminal record” to “irrelevant criminal record”.

The new threshold of relevance lowers the bar that employers must meet to reject a job applicant on the basis of their criminal record, effectively striking 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.

However, employers should tread with caution 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:

• The AHRC has indicated that, where a significant period of time has elapsed since the conviction, and the complainant has not reoffended and has conducted themself well, the conviction will not be enough to establish a lack of good character years later when applying for a job (Smith v Redflex Traffic Systems Pty Ltd (2018)).
• In DA v Commonwealth of Australia (Australian Federal Police) (2012), the AHRC found that numerous offences (relating to dangerous driving, drugs and assault) by an applicant for a role with AFP did not prevent him from performing the inherent requirements of the role, given that he had not committed any offences in 8 years, most had been committed when he was a juvenile and he had subsequently shown good character.

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. In Wall v Northern Territory Police (2005), the Northern Territory Anti-Discrimination Commission affirmed this position, stating that “where a job applicant or employee 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”.

Criminal record discrimination complaints

A complaint of criminal record discrimination can be made to the AHRC under the AHRC Act. Unlike grounds of discrimination under other federal, state and territory legislation, these complaints do not have any enforceable legal remedies, and the complainant has no right pursue their claim in the Federal Court or Federal Circuit Court.

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.

The AHRC does not have the power to enforce compliance with or implement, its recommendations, and it is not uncommon for respondents to decline to comply. In BE v Suncorp Group Ltd (2018), the AHRC found that Suncorp had discriminated against a job applicant on the basis of his criminal record and made a recommendation that Suncorp pay the complainant compensation of $2,500 on the basis of hurt, humiliation and distress. Suncorp declined to pay. However, a report containing adverse findings can expose a respondent to public criticism, and any failure to comply will be noted in the report.

Criminal record discrimination pursuant to the AHRC Act does not enliven a claim for unlawful adverse action under the Fair Work Act 2009 (Cth).