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Criminal Histories - Are they Grounds for Discrimination?

At some stage during the recruitment process, you may come across applicants who have a disclosable criminal record.

When managing such candidates, it is important to ensure that you understand what can constitute discrimination and whether a candidate can be rejected for a role based on their criminal history.

While discrimination on the basis of a criminal record is not unlawful under federal law, s 31  of the Human Rights Act 1986 does provide that the Human Rights Commission can investigate complaints regarding discrimination on the basis of a criminal record. 

At state and territory level, anti-discrimination legislation in both Tasmania and the Northern Territory contain provisions that specifically prohibit discrimination on the basis of an “irrelevant criminal record,” (excluding for jobs that involve working with vulnerable people and children).

Persons who wish to complain of discrimination on the grounds of criminal record in other states must rely on the Australian Human Rights Commission Act.

Guidelines for the prevention of discrimination in employment on the basis of criminal record provide that , it may be discrimination if a person's criminal record results in them being:

  • refused a job
  • dismissed from employment
  • denied promotion or training opportunities
  • subjected to less favourable working conditions or terms of employment

It will not be deemed discrimination if a person is not hired because their criminal record will prevent them from performing the inherent requirements of the role for which they have applied and if they cannot fulfil the essential aspects of the job.

Do applicants have to disclose their criminal history?

While employees and job applicants are not obliged to voluntarily disclose their criminal record unless they are asked to do so, in some instances legislation or licensing rules will require disclosure. 

Under spent convictions laws, employees or job applicants are generally not required to disclose information about their spent convictions (those convictions which have been removed from their record following a period of non-offending) to anyone, even if asked about their criminal history.

Spent convictions are those convictions which have been removed from their record following a period of non-offending. Some offences never become spent in certain jurisdictions, for example sex offences. Similarly, some types of employment, such as that which involves working with children are exempt from spent conviction legislation. 

With the exception of certain industries that require a clean record, it is not good practice to automatically reject an applicant because of their criminal record. Rather, the background check forms only part of the selection process.

When assessing an application from someone with a criminal record, as an employer you will need to consider:

  • Whether the organisation has clear procedures for making decisions about applicants with a criminal record.
  • Whether the applicant or employee's specific criminal record mean that he or she cannot fulfil the inherent requirements of the particular job
  • Whether the applicant or employee has been given an opportunity to explain the circumstances surrounding any criminal record

For assistance in determining if your employee’s criminal record is of concern, please contact a member of our HR advisory team via email at advice@hradviceonline.com.au or via telephone at 1300 720 004.

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