Government provides greater certainty when hiring employees with criminal records

The Federal Government has amended the Australian Human Rights Commission Regulations 1989 to provide employers with greater certainty about accepting or rejecting prospective employees based on their criminal records.

This change to the regulations now sets a lower threshold for employers to lawfully decline job applicants with a criminal history. If challenged by the unsuccessful job applicant, employers previously had to demonstrate that the criminal record was directly relevant to the “inherent requirements” of the role.

However, under these changes, employers, for the first time, will be able to exercise “reasonable discretion” to refuse to employ a prospective employee, if the employee’s criminal record is relevant to the position. However, it will remain unlawful to discriminate if the conviction is not relevant to the role.

The 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.”

The Government argued that the need for this change was demonstrated by a 2018 case involving a major insurance company which was found to have unlawfully discriminated when it withdrew an offer of employment it had made to a man who had failed to disclose convictions for child pornography offences.

Implications for Employers

While this amendment has lowered the test to reject a job applicant with a criminal history, employers should be mindful that it remains unlawful to discriminate if the conviction is not relevant to the role.

Employers should seek specific advice in these circumstances.