Law change adds certainty to criminal record checking

Changes to the Australian Human Rights Commission Regulations 1989, which are already in effect, allow employers to exercise reasonable discretion against prospective employees if their criminal record is relevant to the position being sought. 

Previously, employers had to show that a criminal record was directly relevant to the “inherent requirements” of a position.

Why the change?

In his announcement, the Attorney-General for Australia, Christian Porter, has suggested the change is a direct response to a controversy caused by a recent case. In 2018, the Australian Human Rights Commission (AHRC) recommended an insurer to pay $2,500 to a complainant for failing to employ him because of his previous convictions related to child pornography. 

The Attorney-General has signaled that the change is about finding “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” and removing what he described as a “much higher bar” for employers.

The 2018 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,” Mr Porter said.

“The amendment that we’ve introduced will provide the certainty and clarity that employers need, while also ensuring that applicants remain protected when their conviction clearly has no relevance to the job they are applying for.”

What’s really changed?

Although the AHRC plays an important role in calling out discrimination and leading the discussion on best practice in Australia, the body doesn’t have enforcement powers. Upon summarising its findings, the AHRC concludes its recommendations for each case in a report that is then sent to the Attorney-General. But the AHRC’s verdict doesn’t make discriminatory actions unlawful and doesn’t mean parties need to follow or implement its recommendations.

Following the 2018 case, the insurance company disagreed with the AHRC’s conclusions and declined to pay the prospective employee the suggested compensation.

Regardless of the AHRC’s powers, any independent complaint process is a serious matter and can be a significant distraction from running your business. A complaint to the AHRC not only attracts unwelcome publicity but also represents a real reputational risk for any business.

The change in the regulation, from a criminal conviction that is “directly relevant to the inherent requirements of the position” to one that is “relevant to the position”, is a change that should be welcomed, because it is simpler and easier to understand. 

In reality, though, the change is not a dramatic shift from the existing law.  For the vast majority of employment decisions, nothing has changed.

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