Human Rights regulations amended to clear up crime rules

The Federal Government will amend the Australian Human Rights Commission Regulations 1989 to improve clarity for employers around rejecting applications from job seekers with a criminal record, the Attorney General’s office has announced.

Employers will be given greater certainty about when they can reject job applications from people with criminal records through the amendment, which seeks to clarify that whilst employers can discriminate on the basis of a ‘relevant criminal record’, they will not be able to discriminate if the conviction is ‘irrelevant’ to the role being applied for.

With variances in pre-employment screening for those working with children in place at the state and territory level, the announcement from the amendment to the regulations must be considered in conjunction with state and territory expectations, as well as the individual policies and procedures of organisations.

Pre-employment screenings such as working with children checks and police checks screen for an individual’s criminal records and any reports on their professional conduct. They are designed to help ensure that the right people are chosen to work or volunteer with children.

They aim to prevent people from working or volunteering with children if records indicate that they may pose a risk. Research has highlighted the advantages of having structured pre-employment screening processes in place (Child Protection Systems Royal Commission, 2016). These benefits include:

• Basing decisions on standardised points of reference, subjective decision making is minimised.
• The use of structured risk assessment approaches is more reliable and valid than the use of professional judgement alone.
• The assumptions on which the risk assessment models are based can be clearly set out and may be tested.
• Information can be dealt with transparently, and the person affected can put forward information as well as correct it.
• Public awareness of the use of structured risk assessment models may deter possible offenders.

Attorney General Christian Porter described the amendment to the regulations as a sensible approach to give both employers and prospective employees greater certainty than is currently provided for in the regulations.

The amendment would make it unlawful for an employer to discriminate on the basis of an ‘irrelevant’ criminal record, consistent with equivalent prohibitions in state and territory legislation – a change which should provide employers with greater ability to exclude candidates who previously committed a dishonesty offence from positions of employment that can be reasonably characterised as requiring substantial levels of integrity and trust.

“Most Australians wouldn’t say people with a criminal record should be excluded from employment for the rest of their lives” Mr Porter said.

“Equally, employers need greater clarity about when they can refuse to employ someone who, they reasonably believe, is unsuitable for a particular position because of a criminal conviction.”

Currently, the regulations prohibit discrimination made on the grounds of any criminal record, unless that criminal record relates to the ‘inherent requirements’ of a position. In the context of early childhood education and care (ECEC) services, an inherent requirement of being a fit and proper person to be an approved provider of an education and care service – or an individual who will have management or control of an education and care service – is to complete an application which outlines criminal history, and any bankruptcy action, through the completion and acceptance by ACECQA of a Declaration of fitness and propriety.

The need to alter the regulations was was highlighted recently in a report by the Australian Human Rights Commission (AHRC), BE v Suncorp Group Ltd [2018] AusHRC 121.

In the report, the AHRC found that a decision by Suncorp to rescind an offer of employment based on the applicants criminal record constituted unlawful discrimination because the applicants criminal record was not related to the inherent requirements of the job.

“The Government has considered a number of options to address concerns raised in the AHRC’s report, including working constructively with the AHRC on this amendment, and believes this approach will achieve the right balance between protecting Australians from unfair discrimination, while allowing employers to consider the relevance of a criminal record in making an employment decision” the Attorney General said.

The current regulations are due to sunset on 1 October 2019 and the planned amendment will be progressed over coming months along with outcomes of a broader review of the regulations.

For more information about the amendments, visit the Attorney General’s website.