The Australian Human Rights Commission Regulations 2019 (Cth) (AHRC Regs) which commenced on 1 October 2019 has clarified that an employer may be found (by the Australian Human Rights Commission) to have discriminated against a prospective employee if they make a distinction, exclusion or preference due to their “irrelevant criminal record”.
The Previous Test
The previous test set out in s 3(1) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) was based on whether the distinction, exclusion or preference due to a prospective employees’ criminal record was made “in respect of a particular job based on the inherent requirements of the job”. Arguably, the new expression under the AHRC Regs provides greater clarity for employers (and prospective employees) as to the relevant considerations in determining whether an applicant can be refused employment opportunities.
The AHRC Regs were influenced in large part due to the decision in BE v Suncorp Group Ltd  AusHRC 121 (the BE Decision) where President Croucher AM made findings against Suncorp in circumstances where they rescinded an offer of employment to a candidate due to previous convictions for accessing child pornography material.
The BE Decision
In the BE Decision, Suncorp argued (amongst other things) that it was an inherent requirement of the role that the prospective employee be trustworthy in respect of confidential information. In this regard President Croucher AM noted that the convictions, whilst “very serious”, were not indicative of dishonesty and that the nature of the offence did not give rise to a legitimate inference about trustworthiness (although consideration was given to the fact the prospective employee was appealing his criminal conviction).
Suncorp also argued that it was “imperative” for its employees to be able to promote Suncorp’s corporate responsibility and the prospective employee’s conviction was “not consistent with Suncorp’s Values and activities within the community” which would pose a “reputational risk”. In consideration of this argument, President Croucher AM noted the position description for the role the prospective employee had applied for did not contain any requirement that the prospective employee participate in its community activities. The conclusion drawn was that Suncorp’s requirements were “peripheral, rather than inherent, requirement of the role”.
Ultimately (and in our view unfortunately), President Croucher AM was unable to be satisfied there was sufficient connection between the conviction and the particular job the prospective employee had applied for.
The implications for employers
In relation to the BE Decision, Minister for Industrial Relations, Christian Porter commented that “This case demonstrated that our laws in this area were not working and were at complete odds with common sense which is why this change has been made” (referring to the AHRC Regs). Mr Porter also noted that the AHRC Regs were introduced due to “a 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 of their conviction”.
For employers, the AHRC Regs means increased clarity on the circumstances that would justify the rejection of prospective employee, passing up an existing employee for promotion or even terminating an employee. The AHRC Regs seem to suggest that so long as the criminal record is relevant, it would be a valid consideration for an employer. Previously, the employer had to demonstrate sufficient connection with the inherent requirements of the role in order to be a valid consideration for an employer. The AHRC Regs appear to lift the confinement of an employer’s decision solely to the inherent requirements of a role, allowing for consideration of general matters such as the seriousness of the conviction or whether the nature of the conviction would preclude any meaningful trust being formed between the employer and employee.
Is there an example?
As an example, under the AHRC Regs an employer may be justified in refusing to hire a prospective employee for a clerical role if they have criminal convictions for domestic violence where the prospective employee would be required to work with an exisiting employee who has suffered domestic violence. Whilst the domestic violence conviction would have no bearing on clerical duties (being the inherent requirements of the role), it may be relevant to the prospective employee’s ability to work with the existing employee (who may be fearful or traumatised by domestic violence). If the previous test set out in the AHRC Act was used by the employer, they may not necessarily be justified in their refusal to employ given that the domestic violence conviction is irrelevant to a clerical role. The new position under the AHRC Regs would appear to provide a justification on the basis that the conviction is relevant to the prospective employee’s ability to work with an existing team.
If you are a HR Manager or an employer dealing with a prospective employee with a criminal conviction, you may wish to consider the changes under the AHRC Regs and its affect on your policies and practices. Should you require any further assistance, NB Lawyers – Lawyers for Employers can offer an obligation free consultation to discuss how we can assist you with your queries or concerns.
About the Authors
Jonathan Mamaril leads a team of handpicked experts in the areas of employment law and commercial law who focus on educating clients to avoid headaches, provide advice on issues before they fester and when action needs to be taken and there is a problem mitigate risk and liability.
Dan Chen is a lawyer at NB Lawyers, the lawyers for employers, and specialises in employment law. Dan is passionate about assisting business owners, small and large understand their obligations under Australia’s complex workplace relations system.