Is it unlawful to not employ someone because of their criminal record? The clear answer is: it depends

On 1 October 2019, the Australian Human Rights Commission Regulations 2019 (Cth) came into effect. Those regulations change the statutory definition of ‘discrimination’ in relation to criminal records. Let’s have a look at how that change might impact councils and their recruitment practices.

By these new regulations, Federal Parliament has amended the definition of ‘discrimination’ to include any distinction, exclusion or preference made on the ground of an irrelevant criminal record. The only change is the addition of the word “irrelevant”.

Since the inception of the Australian Human Rights Commission Act 1986 (Cth), it has not been unlawful for employers to discriminate on the basis of criminal record if that record impacts on the performance of the inherent requirements of the job.

A concern arose that the “inherent requirements” exemption was too narrow. Employers were being criticised for decisions that, to most, appeared appropriate and fair. Here is one example.

BE v Suncorp Group Ltd [2018] AusHRC 122

Last year, Suncorp Group Ltd was found to have unlawfully discriminated against a candidate on the basis of his criminal record. Suncorp withdrew a job offer when it learned the applicant had criminal convictions related to child pornography and failure to comply with reporting obligations.

Suncorp said the convictions would have impacted the individual’s ability to perform an inherent requirement of the role. Among other things, he would have had unsupervised access to confidential customer information and have been required to work with technology and the internet. Suncorp was also concerned about compatibility with its values and corporate responsibility.

The Australian Human Rights Commission took a different view and found that by withdrawing the job offer, Suncorp had breached federal discrimination laws. It recommended that Suncorp revise its policies, conduct more training, and pay $2,500 in compensation to the applicant for hurt and suffering. The decision resulted in significant publicity for Suncorp, who appeared to have plenty of supporters of its decision.

One of those supporters seems to have been the Attorney General, Christian Porter, who in a recent radio interview said:

The idea that [Suncorp] suffered a law and a decision that told them that they couldn't make that exercise of their own discretion seemed to us to be pretty strange if not a bit ridiculous. So yeah, we've changed the law.

What constitutes an ‘irrelevant’ criminal record?

The new regulations have lowered the bar for employers to vet candidates on the basis of their criminal record. It will no longer be unlawful to discriminate against an applicant whose criminal record could reasonably be said to be relevant.

The question facing employers is: when is a criminal record ‘irrelevant’?

That will likely be determined on the circumstances, including the nature of the offence, time since the conviction, the nature of the role, the nature of the employer’s business and many other considerations. For a council, this will include its statutory functions and purpose and may encompass the demographics of its ratepayers.

Here is a hypothetical to get the debate started. Imagine a candidate who has convictions for violent behaviour in protests against mining from five years ago. Council might depend on mining as a means to building a "strong, healthy and prosperous local community" in accordance with section 8 of the Local Government Act 1993 (NSW). The candidate is exceptional at their trade and otherwise the best for the job. Do you hire them?

Questions like this will undoubtedly exercise councils and the Australian Human Rights Commission for some time to come.

Author: Ryan Murphy

Leading Partner: Darren Gardner

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